NON-FOREIGN PERSON AFFIDAVIT PURSUANT TO SECTION 1445 OF THE INTERNAL REVENUE CODE
Certificate of Non-Foreign Status under IRC § 1445 and Treasury Regulations § 1.1445-2(b)
Date: August 8, 2023
This Non-Foreign Person Affidavit (this "Certificate") is delivered in connection with that certain Asset Purchase Agreement, dated as of May 11, 2023 (the "Agreement"), by and between Genome Dx Therapeutics Inc., a Delaware corporation ("Seller" or the "Transferor"), and Meridian Precision Diagnostics, Inc., a Delaware corporation ("Buyer" or the "Transferee").
RECITALS
WHEREAS, Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), provides that a transferee (buyer) of a United States real property interest must withhold tax if the transferor (seller) is a "foreign person," as that term is defined in Section 7701(a)(30) of the Code;
WHEREAS, Treasury Regulations Section 1.1445-2(b)(2) provides for an exception from the withholding requirement imposed by Section 1445 of the Code where the transferor furnishes to the transferee an affidavit stating, under penalty of perjury, that the transferor is not a foreign person, together with the transferor's name, United States taxpayer identification number, and home address (in the case of an individual) or office address (in the case of an entity);
WHEREAS, in order to inform the Transferee that withholding of tax under Section 1445 of the Code is not required upon the disposition of a United States real property interest by the Transferor in connection with the transactions contemplated by the Agreement, the undersigned hereby certifies, on behalf of the Transferor and under penalty of perjury, the following facts, representations, and acknowledgments;
NOW, THEREFORE, the undersigned, in the undersigned's capacity as an authorized officer of the Transferor, and intending that this Certificate be relied upon by the Transferee for purposes of satisfying the requirements of Section 1445 of the Code and Treasury Regulations Section 1.1445-2(b)(2), hereby certifies, represents, warrants, and agrees as follows:
SECTION 1. CERTIFICATIONS
1.1 Identity of Transferor
The Transferor is Genome Dx Therapeutics Inc., a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Transferor's principal place of business and headquarters address is as follows:
Genome Dx Therapeutics Inc. 10250 Science Center Drive, Suite 600 San Diego, California 92121
The Transferor is the entity identified as the "Seller" in the Agreement and is the party disposing of the Purchased Assets (as defined below) pursuant to the terms and conditions of the Agreement.
1.2 U.S. Taxpayer Identification Number
The Transferor's United States employer identification number ("EIN"), as assigned by the Internal Revenue Service, is 47-3892061. The Transferor has been assigned this EIN in the ordinary course and such number remains valid and in effect as of the date hereof.
1.3 Non-Foreign Status
The Transferor hereby certifies, represents, and warrants that:
(a) The Transferor is not a "foreign corporation" within the meaning of Section 7701(a)(5) of the Code;
(b) The Transferor is not a "foreign partnership" within the meaning of Section 7701(a)(5) of the Code;
(c) The Transferor is not a "foreign trust" within the meaning of Section 7701(a)(31) of the Code;
(d) The Transferor is not a "foreign estate" within the meaning of Section 7701(a)(31) of the Code;
(e) The Transferor is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code; and
(f) The Transferor is not a "disregarded entity" as defined in Treasury Regulations Section 1.1445-2(b)(2)(iii). The Transferor is treated as a corporation for United States federal income tax purposes and is not an entity that is disregarded as an entity separate from its owner for such purposes.
The Transferor is a United States person within the meaning of Section 7701(a)(30) of the Code and is subject to tax on its worldwide income. The Transferor files United States federal income tax returns as a domestic corporation.
1.4 Transaction Reference
This Certificate is furnished in connection with the disposition by the Transferor of certain assets constituting the OncuPath™ companion diagnostics assay line (collectively, the "Purchased Assets") pursuant to the Agreement. The Purchased Assets are being transferred by the Transferor to the Transferee in accordance with, and subject to, the terms and conditions set forth in the Agreement, dated as of May 11, 2023, by and between the Transferor, as Seller, and Meridian Precision Diagnostics, Inc., as Buyer. To the extent that any of the Purchased Assets constitute, or may be characterized as, a United States real property interest within the meaning of Section 897(c) of the Code, the Transferee is entitled to rely on this Certificate to establish that no withholding is required under Section 1445 of the Code with respect to the consideration paid to the Transferor in connection with the transfer of such Purchased Assets.
SECTION 2. ACKNOWLEDGMENTS AND AGREEMENTS
2.1 Penalty of Perjury
The Transferor understands and acknowledges that this Certificate is made under penalty of perjury as provided under Section 1445 of the Code, Treasury Regulations Section 1.1445-2(b)(2), and 28 U.S.C. § 1746. The Transferor further understands that this Certificate may be disclosed to the Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both, as provided under the applicable provisions of the Code and Title 18 of the United States Code. The undersigned declares, under penalty of perjury, that the information contained in this Certificate is true, correct, and complete to the best of the undersigned's knowledge and belief.
2.2 Notification of Change
The Transferor hereby agrees to notify the Transferee promptly in writing in the event that any of the certifications, representations, or warranties made herein becomes incorrect, incomplete, or misleading in any material respect prior to, at, or following the time of the closing of the transactions contemplated by the Agreement. In the event of any such change, the Transferor shall provide the Transferee with an updated certificate or such other documentation as may be necessary for the Transferee to determine its obligations under Section 1445 of the Code.
2.3 Transferee's Reliance
The Transferor understands and acknowledges that the Transferee is entitled to rely upon this Certificate for the purpose of satisfying the Transferee's obligations under Section 1445 of the Code and Treasury Regulations Section 1.1445-2(b)(2). In reliance upon this Certificate, the Transferee will forego the withholding of tax under Section 1445 of the Code on the consideration paid or to be paid to the Transferor in connection with the disposition of the Purchased Assets. The Transferor agrees that it shall indemnify and hold harmless the Transferee from and against any and all liability, including any tax, penalties, interest, costs, and expenses (including reasonable attorneys' fees), arising from or related to any inaccuracy in or breach of any certification, representation, or warranty contained in this Certificate.
2.4 Retention by Transferee
The Transferor acknowledges and agrees that the Transferee intends to retain this Certificate (or a copy hereof) for its records as required by Treasury Regulations Section 1.1445-2(b)(3). Pursuant to such regulations, the Transferee is required to retain this Certificate for a period of not less than five (5) calendar years following the date of the transfer of the Purchased Assets. The Transferor consents to such retention and agrees that this Certificate shall survive the closing of the transactions contemplated by the Agreement for such retention period and for any additional period required by applicable law.
SECTION 3. GOVERNING LAW AND MISCELLANEOUS
3.1 Penalty of Perjury. This Certificate is made under penalty of perjury as required under Section 1445 of the Code, Treasury Regulations Section 1.1445-2(b), and all other applicable provisions of law. The undersigned certifies that the undersigned has the authority to sign this Certificate on behalf of the Transferor and that all statements contained herein are true, correct, and complete.
3.2 Defined Terms. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
3.3 Counterparts. This Certificate may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
3.4 Severability. If any provision of this Certificate is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The undersigned has executed this Non-Foreign Person Affidavit as of the date first set forth above.
GENOME DX THERAPEUTICS INC. (the Transferor)
By: ________
Name: Martin Kowalski
Title: Chief Financial Officer
Date: August 8, 2023
NOTARY ACKNOWLEDGMENT
STATE OF CALIFORNIA COUNTY OF SAN DIEGO
On this 8th day of August, 2023, before me, the undersigned notary public, personally appeared Martin Kowalski, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity as Chief Financial Officer of Genome Dx Therapeutics Inc., a Delaware corporation, and that by his signature on the instrument, the entity upon behalf of which the person acted executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
________________________________________
Notary Public in and for the State of California County of San Diego
Printed Name: ________
My Commission Expires: ________
[NOTARY SEAL]
This Certificate is delivered solely for the purposes of satisfying the requirements of Section 1445 of the Internal Revenue Code of 1986, as amended, and Treasury Regulations Section 1.1445-2(b)(2). This Certificate does not constitute a representation or warranty with respect to any matter other than those expressly set forth herein and is not intended to modify, amend, or supplement the terms and conditions of the Asset Purchase Agreement dated as of May 11, 2023.