Contract analysis

ARTICLE I — DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined in this Article I shall have the meanings ascribed to them elsewhere in this Agreement. "Affiliate" means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common contr

ARTICLE II — PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES

Section 2.1 — Purchased Assets At the Closing, upon the terms and subject to the conditions set forth in this Agreement, Seller shall sell, convey, assign, transfer, and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all Liens (other than Permitted Liens), all of Seller's right, title, and interest in, to, and under all of the following assets, properties, and rights used exclus

Section 2.2 — Excluded Assets Notwithstanding anything to the contrary in Section 2.1 or elsewhere in this Agreement, the following assets (collectively, the "Excluded Assets") are expressly excluded from the Purchased Assets and shall be retained by Seller: (a) Seller's GenoStrat™ liquid biopsy platform and all other retained businesses, product lines, and divisions of Seller (including, for the avoidance of doubt,

Section 2.3 — Assumed Liabilities At the Closing, upon the terms and subject to the conditions set forth in this Agreement, Buyer shall assume and agree to pay, perform, and discharge only the following liabilities and obligations of Seller (collectively, the "Assumed Liabilities"): (a) all trade payables and accrued expenses of the OncuPath Business arising in the ordinary course of business and accruing after the C

Section 2.4 — Excluded Liabilities Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume and shall not be responsible for any liabilities or obligations of Seller other than the Assumed Liabilities (all such liabilities and obligations not constituting Assumed Liabilities, collectively, the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities

Section 2.5 — Purchase Price (a) Total Consideration. The aggregate consideration for the Purchased Assets shall be One Hundred Forty Million Dollars ($140,000,000) (the "Total Consideration"), subject to adjustment as set forth in Section 2.6, comprised of the following components: (i) Closing Cash Payment. At the Closing, Buyer shall pay to Seller (or to such account or accounts as Seller shall designate in writing

Section 2.6 — Net Working Capital Adjustment (a) Target NWC. The Parties have agreed that the target net working capital of the OncuPath Business, calculated in accordance with GAAP applied on a basis consistent with the preparation of the audited carve-out financial statements described in Section 4.5, shall be Six Million Eight Hundred Thousand Dollars ($6,800,000) (the "Target NWC"). As used herein, "Net Working C

Section 2.7 — Earnout (a) Earnout Milestone 1. Subject to the terms and conditions of this Agreement and the Earnout Agreement, Buyer shall pay to Seller Eight Million Dollars ($8,000,000) (the "Milestone 1 Payment") upon the achievement of Earnout Milestone 1, which shall occur upon FDA clearance or approval of the OncuPath-HER3™ assay (or any successor assay thereto) as a companion diagnostic for any FDA-approved t

Section 2.8 — Purchase Price Allocation (a) The Parties shall allocate the Total Consideration (plus the Assumed Liabilities to the extent required by applicable Law) among the Purchased Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (and any similar provision of applicable state, local, or foreign Law). (b) The Parties agree that the following preliminary alloc

Section 2.9 — Withholding Buyer shall be entitled to deduct and withhold from any payment made pursuant to this Agreement such amounts as Buyer is required to deduct and withhold under the Code or any applicable provision of state, local, or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Governmental Authority, such withheld amounts shall be treated for all purposes of th

Section 3.1 — Closing Date The closing of the transactions contemplated by this Agreement (the "Closing") shall take place remotely via the electronic exchange of documents and signatures on or before August 1, 2023 (the "Target Closing Date"), or on such other date as the Parties may mutually agree in writing, subject in each case to the satisfaction or waiver of all conditions precedent set forth in Article VII and

Section 3.2 — Seller's Closing Deliverables At or prior to the Closing, Seller shall deliver (or cause to be delivered) to Buyer each of the following: (a) the Bill of Sale, duly executed by Seller, in the form attached hereto as Exhibit A; (b) the Assignment and Assumption Agreement, duly executed by Seller, in the form attached hereto as Exhibit B; (c) the intellectual Property Assignment Agreement, duly executed b

Section 3.3 — Buyer's Closing Deliverables At or prior to the Closing, Buyer shall deliver (or cause to be delivered) to Seller each of the following: (a) the Closing Cash Payment of One Hundred Twenty-Six Million Dollars ($126,000,000), payable by wire transfer of immediately available funds in United States dollars to the account or accounts designated by Seller in writing not fewer than two (2) Business Days prior

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF SELLER Except as set forth in the Disclosure Schedules (it being agreed that disclosure of any item in any section or subsection of the Disclosure Schedules shall be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such item is reasonably apparent on its face), Seller represents and warrants to Buyer as of the

Section 4.1 — Organization and Good Standing Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. Seller has full corporate power and authority to own, lease, and operate its properties and to carry on the OncuPath Business as currently conducted. Seller is duly qualified or licensed to do business and is in good standing in the State of California an

Section 4.2 — Authorization; Binding Effect Seller has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which Seller is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance of this Agreement and each Ancillary Agreement to which Seller is

Section 4.3 — No Conflicts; Consents (a) The execution, delivery, and performance of this Agreement and the Ancillary Agreements by Seller, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) conflict with or violate the certificate of incorporation, bylaws, or other organizational documents of Seller, (ii) conflict with or violate any Law applicable to Seller or the Oncu

Section 4.4 — Title to Purchased Assets Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets, free and clear of all Liens other than Permitted Liens. Upon consummation of the transactions contemplated by this Agreement, Buyer will acquire good and valid title to, or a valid leasehold interest in, the Purchased Assets, free and clear of all Liens other than Permitted Liens.

Section 4.5 — Financial Statements (a) Seller has delivered to Buyer true, correct, and complete copies of the audited carve-out financial statements of the OncuPath Business for the fiscal years ended December 31, 2021 and December 31, 2022 (collectively, the "Financial Statements"), consisting of balance sheets as of each such date and the related statements of income, changes in net assets, and cash flows for the

Section 4.6 — Absence of Certain Changes Since December 31, 2022, except as set forth on Schedule 4.6 or as contemplated by this Agreement, (a) no Material Adverse Effect has occurred with respect to the OncuPath Business and (b) Seller has operated the OncuPath Business in the ordinary course of business consistent with past practice in all material respects. Without limiting the generality of the foregoing, since D

Section 4.7 — Intellectual Property (a) Schedule 4.7(a) sets forth a true, correct, and complete list of all Owned IP of the OncuPath Business, including (i) fourteen (14) issued United States patents and seven (7) pending United States patent applications, in each case listing the patent or application number, title, filing date, issuance date (if applicable), and named inventors, and (ii) all other registered intel