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NON-COMPETITION AND NON-SOLICITATION AGREEMENT

This Non-Competition and Non-Solicitation Agreement (this "Agreement") is entered into and effective as of August 8, 2023 (the "Closing Date"), by and between:

Genome Dx Therapeutics Inc., a Delaware corporation, with its principal offices located at 10250 Science Center Drive, Suite 600, San Diego, California 92121 (the "Seller" or the "Covenantor");

and

Meridian Precision Diagnostics, Inc., a Delaware corporation, with its principal offices located at 2400 Meridian Parkway, Suite 300, Durham, North Carolina 27713 (the "Buyer" or the "Protected Party").

Seller and Buyer are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

This Agreement is being entered into and delivered at and as of the Closing (as defined in the APA (as defined below)) pursuant to and in accordance with the requirements of that certain Asset Purchase Agreement dated as of May 11, 2023 (the "APA"), by and between Seller and Buyer, providing for the purchase and sale of all assets, intellectual property, contracts, inventory, equipment, regulatory filings, and goodwill exclusively related to Seller's OncuPath™ companion diagnostics assay line (the "OncuPath Business") for total aggregate consideration of One Hundred Forty Million Dollars ($140,000,000). The execution and delivery of this Agreement by Seller is a condition to the obligation of Buyer to consummate the Closing under the APA. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the APA.

RECITALS

WHEREAS, Seller has developed and operated the OncuPath Business, which includes the OncuPath™, OncuPath-HER3™, and OncuPath-GENOMARK™ companion diagnostics assay platforms, together with fourteen (14) issued United States patents, seven (7) pending patent applications, three (3) registered trademarks, associated trade secrets, proprietary know-how, and established customer relationships;

WHEREAS, Buyer is acquiring the OncuPath Business pursuant to the APA, including all Purchased Assets (as defined in the APA) and goodwill associated therewith, and is assuming certain liabilities related thereto, as more fully described in the APA;

WHEREAS, eighty-three (83) employees of the OncuPath Business received offers of employment from Buyer in connection with the transactions contemplated by the APA, of whom seventy-eight (78) accepted such offers and transferred to Buyer at Closing (the "Transferred Employees"), including key personnel Dr. Lara Okonkwo (Vice President, OncuPath R&D), Samuel Briggs (Director, OncuPath Commercial Operations), and Yuki Tanabe (Head of Regulatory Affairs, OncuPath), each of whom possesses specialized knowledge critical to the ongoing operation and commercial success of the OncuPath Business;

WHEREAS, Seller possesses extensive knowledge of the OncuPath Business, including proprietary technology, customer and supplier relationships, regulatory strategies, clinical development plans, manufacturing processes, and commercial operations, and Buyer would not have entered into the APA or consummated the transactions contemplated thereby without Seller's agreement to the restrictive covenants set forth herein;

WHEREAS, a material portion of the consideration paid by Buyer under the APA, including the One Hundred Twenty-Six Million Dollars ($126,000,000) cash payment at Closing and the right to receive up to Fourteen Million Dollars ($14,000,000) in earnout payments contingent upon the achievement of certain post-Closing milestones, is attributable to the goodwill of the OncuPath Business, and these restrictive covenants are necessary to protect the value of such goodwill and to ensure that Buyer receives the full benefit of the bargain negotiated under the APA;

WHEREAS, Seller's equity sponsor, Pinnacle Biosciences Partners Fund III, L.P., a Delaware limited partnership holding sixty-eight and four-tenths percent (68.4%) of Seller's outstanding common stock, has approved the transactions contemplated by the APA, including Seller's entry into this Agreement, and the general partner thereof, Pinnacle Biosciences Partners GP III, LLC, has consented to the obligations of Seller hereunder;

WHEREAS, the Parties acknowledge that the restrictions contained herein are reasonable in scope, duration, and geographic area, have been the subject of extensive arms'-length negotiation, and are necessary to protect Buyer's legitimate business interests in the OncuPath Business; and

WHEREAS, the Parties desire to set forth their agreements regarding non-competition, non-solicitation, confidentiality, and related matters in connection with the consummation of the transactions contemplated by the APA;

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the consummation of the transactions under the APA, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

"APA" means the Asset Purchase Agreement dated as of May 11, 2023, by and between Seller and Buyer, as may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.

"Closing Date" means August 8, 2023, the date on which the Closing occurred under the APA.

"Companion Diagnostics" means any in vitro diagnostic test, assay, kit, reagent system, or platform that is designed, developed, manufactured, marketed, or sold for use in identifying patients who are most likely to benefit from, or be at risk of adverse effects from, a particular therapeutic product, including without limitation (i) genomic profiling assays, (ii) immunohistochemistry (IHC) assays, (iii) fluorescence in situ hybridization (FISH) assays, (iv) next-generation sequencing (NGS)-based companion diagnostic tests, (v) polymerase chain reaction (PCR)-based companion diagnostic tests, and (vi) any other in vitro diagnostic methodology used for companion diagnostic purposes, together with any regulatory submissions related thereto (including, without limitation, FDA 510(k) premarket notification submissions, premarket approval (PMA) applications, PMA supplement filings, or de novo classification requests for companion diagnostic indications, and any comparable regulatory filings with foreign regulatory authorities).

"Competing Business" means any business, enterprise, venture, or activity (whether conducted by a corporation, limited liability company, partnership, sole proprietorship, joint venture, or other entity or arrangement) that is engaged in, or that is formed or organized for the purpose of engaging in, the research, development, manufacture, commercialization, marketing, sale, distribution, or licensing of Companion Diagnostics within the Restricted Territory.

"Earnout Period" means the thirty-six (36)-month period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on August 8, 2026.

"GenoStrat™ Platform" means Seller's retained liquid biopsy platform, marketed under the GenoStrat™ brand, and all related products, services, intellectual property, and regulatory filings retained by Seller pursuant to the APA, which platform is expressly excluded from the scope of the OncuPath Business and from the non-competition covenants set forth in Article II of this Agreement, subject to the conditions specified in Section 2.2(a).

"Non-Compete Period" means the period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on the third (3rd) anniversary of the Closing Date (i.e., August 8, 2026), unless extended pursuant to Section 4.2 of this Agreement.

"Non-Solicitation Period" means the period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on the second (2nd) anniversary of the Closing Date (i.e., August 8, 2025), unless extended pursuant to Section 4.2 of this Agreement.

"OncuPath Business" has the meaning given to such term in the APA, and means all assets, intellectual property, contracts, inventory, equipment, regulatory filings, and goodwill exclusively related to Seller's OncuPath™ companion diagnostics assay line, including the OncuPath™, OncuPath-HER3™, and OncuPath-GENOMARK™ companion diagnostics assay platforms.

"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity.

"Restricted Territory" means the United States of America, including all fifty (50) states, the District of Columbia, and all territories and possessions of the United States (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands).

"Seller Affiliates" means any entity directly or indirectly controlling, controlled by, or under common control with Seller, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity, whether through ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, Seller Affiliates include Pinnacle Biosciences Partners Fund III, L.P., a Delaware limited partnership, and Pinnacle Biosciences Partners GP III, LLC, a Delaware limited liability company.

"Transferred Employees" means the seventy-eight (78) former employees of Seller who accepted Buyer's offers of employment and transferred to Buyer at the Closing, as listed on Schedule A attached hereto and incorporated herein by reference.

"TSA" means the Transition Services Agreement dated as of August 8, 2023, by and between Seller and Buyer, pursuant to which Seller is providing certain information technology, facilities, and human resources/payroll transition services to Buyer for a period of up to nine (9) months following the Closing Date at a fee equal to Seller's cost of providing such services plus five percent (5%).

Section 1.2 — APA Definitions. All capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings given to such terms in the APA. In the event of any conflict between the definitions set forth in this Article I and the definitions set forth in the APA, the definitions in this Article I shall control for purposes of this Agreement.

ARTICLE II — NON-COMPETITION COVENANT

Section 2.1 — Non-Competition Restriction. During the Non-Compete Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person, whether as principal, agent, partner, member, stockholder, officer, director, employee, consultant, advisor, representative, licensor, licensee, joint venturer, or in any other capacity:

(a) engage in, own, manage, operate, control, finance, invest in (other than as expressly permitted by Section 2.2(b)), or participate in the ownership, management, operation, control, or financing of, any Competing Business within the Restricted Territory;

(b) act as an officer, director, employee, partner, member, consultant, advisor, agent, representative, licensor, or licensee of, or lend Seller's name, credit, or resources to, any Person that is engaged in a Competing Business within the Restricted Territory;

(c) develop, design, formulate, manufacture, produce, assemble, market, sell, distribute, commercialize, import, export, or offer for sale any Companion Diagnostics product or service within the Restricted Territory, or direct any such activities from within or into the Restricted Territory;

(d) license, sublicense, assign, transfer, or otherwise convey or make available any technology, know-how, trade secrets, proprietary information, software, algorithms, biological materials, reagents, protocols, or intellectual property to any Person for use in connection with a Competing Business within the Restricted Territory, whether by written agreement, oral arrangement, or course of dealing; or

(e) assist, advise, counsel, or provide any form of material support (whether financial, operational, technical, or strategic) to any Person that Seller knows or reasonably should know is engaged in, or intends to engage in, a Competing Business within the Restricted Territory.

Section 2.2 — Carve-Outs and Permitted Activities. Notwithstanding the provisions of Section 2.1, the non-competition covenant set forth therein shall not prohibit or restrict any of the following activities:

(a) Retained GenoStrat™ Platform. Seller's continued research, development, manufacture, commercialization, marketing, sale, distribution, and operation of its GenoStrat™ liquid biopsy platform and any products, services, or enhancements related thereto, and any other retained businesses of Seller that do not constitute a Competing Business; provided, however, that during the Non-Compete Period, the GenoStrat™ platform and related products shall not be (i) marketed, promoted, or labeled as a companion diagnostic (as that concept is understood within the meaning of the definition of Companion Diagnostics set forth in Section 1.1), (ii) submitted to the U.S. Food and Drug Administration ("FDA") or any comparable regulatory authority for clearance or approval specifically as a companion diagnostic to a particular therapeutic product, or (iii) co-developed with a pharmaceutical or biotechnology company pursuant to any agreement that characterizes or designates the GenoStrat™ platform or any product derived therefrom as a companion diagnostic. For the avoidance of doubt, Seller's use of the GenoStrat™ platform for broad-panel tumor profiling, general genomic analysis, or research use only (RUO) applications that do not constitute Companion Diagnostics shall be permitted hereunder.

(b) Passive Investment. Seller's or any Seller Affiliate's ownership of not more than two percent (2%) of the outstanding equity securities of any class of any entity whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market, even if such entity is engaged in a Competing Business, provided that neither Seller nor any Seller Affiliate otherwise participates in the management, operations, governance, or strategic direction of such entity, serves as a director, officer, employee, or consultant thereof, or provides any technical, scientific, or commercial assistance thereto.

(c) Academic and Research Collaborations. Seller's engagement in bona fide research collaborations, sponsored research agreements, or cooperative research and development agreements with academic institutions, nonprofit research organizations, or governmental research agencies that are not primarily engaged in commercial Companion Diagnostics activities, provided that (i) no products or services resulting from such collaborations are commercialized, marketed, sold, or distributed as Companion Diagnostics within the Restricted Territory during the Non-Compete Period, (ii) Seller does not assign, license, or otherwise transfer to any such institution or organization any intellectual property of Seller for the purpose of enabling such institution or organization (or any third party) to develop or commercialize Companion Diagnostics within the Restricted Territory during the Non-Compete Period, and (iii) any publications or disclosures resulting from such collaborations do not include Confidential Information of the OncuPath Business.

(d) Performance under the TSA. Seller's performance of its obligations under the TSA, including the provision of information technology infrastructure support, facilities management, and human resources and payroll services to Buyer for up to nine (9) months following the Closing Date, in each case as expressly contemplated by and in accordance with the terms of the TSA.

(e) Earnout Cooperation. Seller's cooperation with Buyer in connection with the calculation and achievement of the earnout milestones as set forth in the APA and the Earnout Agreement executed concurrently therewith, including providing Buyer with reasonable access to regulatory records, clinical data, and historical business information as may be necessary or appropriate for Buyer to pursue and achieve such earnout milestones.

Section 2.3 — Acknowledgment of Reasonableness. Seller hereby acknowledges and agrees as follows:

(a) The scope of the Companion Diagnostics definition, the three (3)-year duration of the Non-Compete Period, and the geographic scope of the Restricted Territory (the United States of America) are each reasonable and necessary to protect Buyer's legitimate business interests, including the goodwill of the OncuPath Business acquired by Buyer under the APA. Seller acknowledges that the OncuPath Business operates on a nationwide basis within the United States, that the customer relationships, regulatory approvals, and intellectual property associated therewith extend throughout the Restricted Territory, and that the Restricted Territory is therefore no broader than necessary to protect Buyer's investment in the OncuPath Business.

(b) Seller received substantial consideration under the APA in connection with the sale of the OncuPath Business, including One Hundred Twenty-Six Million Dollars ($126,000,000) in cash at Closing and the right to receive up to Fourteen Million Dollars ($14,000,000) in contingent earnout payments, a material portion of which represents the goodwill of the OncuPath Business. The restrictive covenants set forth in this Agreement were a material inducement to Buyer's willingness to pay such consideration, and such consideration constitutes adequate and sufficient consideration for the covenants set forth herein.

(c) The restrictions set forth in this Article II will not impose an undue hardship on Seller, given that Seller retains its GenoStrat™ liquid biopsy platform and other non-companion-diagnostics business lines, which represent significant and ongoing revenue-generating operations, and that the restrictions are limited in scope to the specific Companion Diagnostics business sold to Buyer under the APA.

(d) Seller has been represented by experienced legal counsel in connection with the negotiation and execution of this Agreement and has had a full and adequate opportunity to review and consider the terms and conditions hereof.

ARTICLE III — NON-SOLICITATION COVENANT

Section 3.1 — Non-Solicitation of Transferred Employees. During the Non-Solicitation Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person:

(a) solicit, recruit, hire, retain, or engage (whether as an employee, independent contractor, consultant, temporary worker, or in any other capacity) any Transferred Employee, or make any offer of employment or engagement to any Transferred Employee;

(b) induce, encourage, entice, or attempt to induce, encourage, or entice any Transferred Employee to leave, resign from, or otherwise terminate his or her employment or engagement with Buyer or any of Buyer's affiliates, or to breach any employment agreement, restrictive covenant agreement, or other agreement between such Transferred Employee and Buyer; or

(c) interfere with, disrupt, or attempt to interfere with or disrupt the relationship between Buyer (or any of its affiliates) and any Transferred Employee, including by making disparaging statements regarding Buyer's management, compensation, benefits, working conditions, or business prospects to any Transferred Employee.

Section 3.2 — Non-Solicitation of OncuPath Customers and Suppliers. During the Non-Solicitation Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person:

(a) solicit, contact, divert, or seek to divert any customer, client, account, or prospective customer of the OncuPath Business (including any pharmaceutical or biotechnology company, hospital, laboratory, health system, or other entity that was a customer of the OncuPath Business at any time during the twelve (12)-month period preceding the Closing Date or that was actively being solicited by the OncuPath Business as a prospective customer as of the Closing Date) for the purpose of selling, offering, or providing Companion Diagnostics products or services to such customer, client, account, or prospective customer; or

(b) interfere with, disrupt, or attempt to interfere with or disrupt any business relationship between Buyer (or any of its affiliates) and any customer, supplier, vendor, distributor, reagent manufacturer, contract research organization, or other business partner of the OncuPath Business, or encourage or induce any such Person to cease or reduce its business with Buyer or to breach any contract or arrangement with Buyer.

Section 3.3 — Carve-Outs. Notwithstanding the provisions of Sections 3.1 and 3.2, the non-solicitation restrictions set forth therein shall be subject to the following carve-outs and exceptions:

(a) General Advertisements. The non-solicitation restrictions with respect to Transferred Employees shall not apply to general solicitations of employment that are not specifically directed at, targeted toward, or designed to attract Transferred Employees, including without limitation (i) advertisements in newspapers, trade publications, or industry journals of general circulation, (ii) postings on general-purpose job boards or online employment platforms (such as Westmark Health IT, Indeed, Penmark Technologies, or similar platforms), (iii) engagement of executive search firms or recruiting agencies, provided that such firms or agencies are instructed not to solicit or recruit Transferred Employees, and (iv) participation in industry conferences, career fairs, or similar events. For the avoidance of doubt, the hiring of any Transferred Employee who responds to a general solicitation described in this Section 3.3(a) without any direct or indirect solicitation, encouragement, or inducement by or on behalf of Seller or any Seller Affiliate shall not constitute a violation of Section 3.1.

(b) Voluntary Contact by Terminated Employees. The non-solicitation restrictions shall not prohibit Seller from hiring or engaging any individual who was a Transferred Employee if such individual (i) was terminated by Buyer without Cause (as such term is defined in Buyer's standard employment agreements) at least ninety (90) days prior to the date on which Seller extends an offer of employment or engagement to such individual, and (ii) contacts Seller or a Seller Affiliate on a wholly unsolicited basis seeking employment or engagement, without any prior direct or indirect solicitation, encouragement, or inducement by or on behalf of Seller or any Seller Affiliate.

(c) Pre-Existing Business Relationships. The customer and supplier non-solicitation restrictions set forth in Section 3.2 shall not restrict Seller from maintaining, continuing, or expanding ordinary-course business relationships with entities that are also customers, suppliers, or business partners of the OncuPath Business, provided that (i) such relationships pertain solely to Seller's retained businesses (including the GenoStrat™ Platform) and not to Companion Diagnostics products or services, (ii) Seller does not use any Confidential Information of the OncuPath Business in connection with such relationships, and (iii) Seller does not use such relationships as a means of circumventing or evading the restrictions set forth in Section 3.2 or Article II.

ARTICLE IV — ENFORCEMENT AND REMEDIES

Section 4.1 — Irreparable Harm; Injunctive Relief. Seller acknowledges and agrees that the covenants and restrictions set forth in Articles II and III of this Agreement are essential to protect Buyer's legitimate business interests in the OncuPath Business and the goodwill acquired thereunder, and that a breach or threatened breach of any such covenant or restriction would cause Buyer immediate and irreparable harm and injury for which monetary damages alone would be an inadequate remedy. Accordingly, in the event of any breach or threatened breach by Seller or any Seller Affiliate of any provision of Article II or Article III, Buyer shall be entitled, in addition to all other rights and remedies available to Buyer at law or in equity (including, without limitation, the right to recover monetary damages), to seek and obtain from any court of competent jurisdiction (i) temporary restraining orders, (ii) preliminary injunctive relief, (iii) permanent injunctive relief, and (iv) specific performance to enforce the provisions of this Agreement, in each case without the necessity of (A) proving actual damages or the inadequacy of legal remedies, (B) posting any bond or other security, or (C) satisfying any other prerequisite to equitable relief, to the fullest extent permitted by applicable law. Seller hereby waives any requirement for the posting of any bond or other security in connection with any application for injunctive relief or specific performance under this Section 4.1.

Section 4.2 — Extension of Restricted Periods. If Seller or any Seller Affiliate breaches any provision of Article II or Article III, the applicable restricted period (i.e., the Non-Compete Period or the Non-Solicitation Period, as applicable) shall be automatically extended by a period of time equal to the duration of such breach, commencing on the date on which such breach first occurred and ending on the date on which such breach is fully cured or permanently enjoined, so that Buyer receives the full benefit of the agreed-upon restricted periods set forth herein. The extension provided for in this Section 4.2 shall be in addition to, and not in limitation of, any other remedies available to Buyer.

Section 4.3 — Judicial Modification. If any court of competent jurisdiction determines that any restrictive covenant contained in this Agreement (including any covenant set forth in Article II or Article III) is unenforceable as written because it is too broad in scope, too long in duration, or too expansive in geographic area, the Parties hereby agree and stipulate that such court shall have the power and authority to reform, modify, and reduce the scope, duration, or geographic area of such covenant to the minimum extent necessary to render it valid and enforceable under applicable law, and the covenant as so reformed and modified shall thereupon be enforceable against the Parties and shall be binding upon them as if originally set forth herein in its modified form. The Parties intend that the restrictive covenants set forth in this Agreement be enforced to the fullest extent permitted by applicable law in each jurisdiction in which enforcement is sought. If any particular provision of this Agreement is adjudicated to be invalid or unenforceable in a particular jurisdiction, such adjudication shall not affect the validity or enforceability of such provision in any other jurisdiction.

Section 4.4 — Cumulative Remedies. The rights and remedies provided to Buyer in this Article IV are cumulative and shall be in addition to, and not exclusive of or in substitution for, any other rights or remedies available to Buyer under the APA, at law, or in equity, including without limitation the right to recover actual damages, consequential damages (to the extent not disclaimed), and attorneys' fees and costs incurred in enforcing the provisions of this Agreement. No single or partial exercise of any right or remedy shall preclude any further exercise thereof or the exercise of any other right or remedy.

ARTICLE V — REPRESENTATIONS AND WARRANTIES

Section 5.1 — Seller's Representations and Warranties. Seller hereby represents and warrants to Buyer as of the Closing Date as follows:

(a) Organization and Good Standing. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.

(b) Corporate Power and Authority. Seller has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby are within Seller's corporate powers.

(c) Due Authorization. The execution, delivery, and performance of this Agreement by Seller have been duly and validly authorized by all necessary corporate action on the part of Seller, including approval by the Board of Directors of Seller at a duly convened meeting held on May 8, 2023, and no other corporate proceedings on the part of Seller are necessary to authorize the execution, delivery, or performance of this Agreement. No stockholder vote or consent of the holders of Seller's outstanding equity securities is required to authorize this Agreement or the performance of Seller's obligations hereunder, other than any such vote or consent that has been duly obtained.

(d) Enforceability. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

(e) No Conflicts. The execution, delivery, and performance of this Agreement by Seller do not and will not (i) conflict with, violate, or result in a breach of Seller's certificate of incorporation or bylaws, each as currently in effect, (ii) conflict with, violate, result in a breach of, or constitute a default under (with or without notice, lapse of time, or both) any material contract, agreement, commitment, instrument, or obligation to which Seller is a party or by which Seller or any of its properties or assets is bound, or (iii) violate any applicable law, rule, regulation, order, judgment, or decree of any governmental authority applicable to Seller.

(f) No Governmental Approvals Required. No consent, approval, authorization, license, permit, order, or filing with or notice to any governmental authority is required in connection with Seller's execution, delivery, and performance of this Agreement, other than any such consent, approval, authorization, license, permit, order, filing, or notice that has been duly obtained or made.

Section 5.2 — Buyer's Representations and Warranties. Buyer hereby represents and warrants to Seller as of the Closing Date as follows:

(a) Organization and Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.

(b) Corporate Power and Authority. Buyer has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.

(c) Enforceability. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

ARTICLE VI — TERM AND TERMINATION

Section 6.1 — Effective Date. This Agreement shall become effective as of the Closing Date (August 8, 2023) and shall remain in effect in accordance with the terms set forth in this Article VI.

Section 6.2 — Expiration.

(a) The non-competition covenants set forth in Article II of this Agreement shall expire at 11:59 p.m. Eastern Time on August 8, 2026 (the third (3rd) anniversary of the Closing Date), unless the Non-Compete Period is extended pursuant to Section 4.2 of this Agreement on account of a breach by Seller or any Seller Affiliate of any provision of Article II.

(b) The non-solicitation covenants set forth in Article III of this Agreement shall expire at 11:59 p.m. Eastern Time on August 8, 2025 (the second (2nd) anniversary of the Closing Date), unless the Non-Solicitation Period is extended pursuant to Section 4.2 of this Agreement on account of a breach by Seller or any Seller Affiliate of any provision of Article III.

Section 6.3 — Survival. The following provisions of this Agreement shall survive the expiration or earlier termination of the restricted periods set forth in Articles II and III and shall continue in full force and effect indefinitely (or, where a specific period is stated, for the duration of such period): Article IV (Enforcement and Remedies), Article VII (Confidentiality), and Article VIII (General Provisions). In addition, any claims or causes of action arising out of a breach of any provision of this Agreement that occurred during the applicable restricted period shall survive the expiration of such restricted period and may be asserted and enforced by Buyer after such expiration.

ARTICLE VII — CONFIDENTIALITY

Section 7.1 — Confidentiality Obligations. Without limiting the confidentiality obligations of Seller set forth in Article VII of the APA (which obligations are hereby incorporated herein by reference and shall apply in full to all Confidential Information of the OncuPath Business), Seller covenants and agrees that, from and after the Closing Date, Seller shall not, and shall cause each of its Seller Affiliates, officers, directors, employees, agents, and representatives not to, directly or indirectly, use, disclose, disseminate, publish, or otherwise make available to any Person any Confidential Information of the OncuPath Business, including without limitation (a) trade secrets and proprietary know-how relating to assay development, manufacturing processes, and reagent formulations, (b) customer data, customer lists, pricing information, and contract terms, (c) regulatory strategies, regulatory submissions, and clinical data, (d) proprietary assay formulations and protocols, (e) supplier terms and relationships, and (f) business plans, financial projections, and strategic plans of the OncuPath Business, except (i) as may be required to perform Seller's obligations under the TSA or the Earnout Agreement, (ii) as may be required by applicable law, regulation, or governmental order, provided that Seller shall provide Buyer with prompt written notice (to the extent permitted by law) of any such legally compelled disclosure and shall cooperate with Buyer in seeking a protective order or other appropriate remedy, or (iii) to the extent such information becomes generally available to the public other than as a result of a breach of this Section 7.1 or any other confidentiality obligation owed by Seller to Buyer.

Section 7.2 — Return of Materials. To the extent not previously delivered to Buyer at or prior to the Closing, Seller shall, within thirty (30) days following the Closing Date (or, with respect to materials in the possession of Seller's outside advisors, within sixty (60) days following the Closing Date), return to Buyer or, at Buyer's election, destroy all documents, files, records, electronic media, laboratory notebooks, samples, prototypes, and other materials in the possession, custody, or control of Seller or any Seller Affiliate that contain, embody, or reflect Confidential Information of the OncuPath Business, and shall certify in writing to Buyer that such return or destruction has been completed. Notwithstanding the foregoing, Seller may retain (a) one (1) copy of such materials in the files of Seller's General Counsel solely for purposes of monitoring compliance with this Agreement and the APA, and (b) any copies of such materials that are contained in routine electronic backup storage media created and maintained in the ordinary course of business, provided that such retained copies remain subject to the confidentiality obligations set forth in this Article VII and shall not be accessed or used for any purpose other than compliance monitoring or as required by applicable law.

ARTICLE VIII — GENERAL PROVISIONS

Section 8.1 — Governing Law. This Agreement, and all claims, disputes, or causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement or the negotiation, execution, or performance hereof, shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 8.2 — Jurisdiction; Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if no state court in the State of Delaware has jurisdiction, the United States District Court for the District of Delaware), in any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, (a) any objection that it may now or hereafter have to the laying of venue in any such court, and (b) any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable law.

Section 8.3 — Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.3.

Section 8.4 — Assignment. Buyer may, without the prior written consent of Seller, assign this Agreement and any or all of its rights and obligations hereunder to (a) any successor in interest to the OncuPath Business, whether by merger, consolidation, acquisition, reorganization, or sale of all or substantially all of the assets of the OncuPath Business, (b) any direct or indirect subsidiary or affiliate of Buyer, or (c) any purchaser or transferee of all or substantially all of Buyer's assets or equity interests; provided that no such assignment shall relieve Buyer of its obligations hereunder unless the assignee expressly assumes such obligations in writing. Seller may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Buyer, which consent may be withheld in Buyer's sole and absolute discretion. Any purported assignment in violation of this Section 8.4 shall be null and void and of no force or effect.

Section 8.5 — Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) one (1) business day after deposit with a nationally recognized overnight courier service (with tracking and proof of delivery), (c) three (3) business days after deposit in the United States mail, registered or certified, return receipt requested, postage prepaid, or (d) upon confirmation of transmission by electronic mail (provided that a copy is also sent by one of the other methods described in clauses (a) through (c) above within two (2) business days), in each case addressed as follows:

If to Seller:

Genome Dx Therapeutics Inc. 10250 Science Center Drive, Suite 600 San Diego, California 92121

Attention: Rebecca Chiang, General Counsel

Email: rchiang@genomedx.com

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 555 South Hope Street, Suite 4400 Los Angeles, California 90071

Attention: James Prentice

Email: jprentice@calderwoodharkness.com

If to Buyer:

Meridian Precision Diagnostics, Inc. 2400 Meridian Parkway, Suite 300 Durham, North Carolina 27713

Attention: David Pruitt, General Counsel

Email: dpruitt@meridianprecision.com

with a copy (which shall not constitute notice) to:

Whitfield Sayer & Gregg LLP 200 South Tryon Street, Suite 2800 Charlotte, North Carolina 28202

Attention: Jonathan Whitfield

Email: jwhitfield@wsglaw.com

Either Party may change its address for notice by giving written notice to the other Party in accordance with this Section 8.5.

Section 8.6 — Entire Agreement. This Agreement, together with the APA and the other Transaction Documents (as defined in the APA), including the TSA, the Earnout Agreement, and all exhibits and schedules attached hereto and thereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, correspondence, agreements, understandings, and commitments (whether written or oral) between the Parties with respect to the subject matter hereof.

Section 8.7 — Amendments; Waivers. This Agreement may not be amended, supplemented, or otherwise modified except by a written instrument duly executed by both Parties. No waiver of any provision of this Agreement, or of any right or remedy arising hereunder, shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies provided by law or in equity.

Section 8.8 — Severability. If any provision of this Agreement, or the application of any such provision to any Person or circumstance, is held by a court of competent jurisdiction or other governmental authority to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement or the application of such provision to any other Person or circumstance, and the remaining provisions of this Agreement shall continue in full force and effect. To the extent permitted by applicable law, the Parties hereby waive any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect.

Section 8.9 — Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Seller shall cause each Seller Affiliate to comply with the terms and conditions of this Agreement applicable to Seller Affiliates, and Seller shall be jointly and severally liable for any breach of this Agreement by any Seller Affiliate.

Section 8.10 — No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the Parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that the Transferred Employees listed on Schedule A are intended third-party beneficiaries of Section 3.1 solely for the limited purpose of enforcing the non-solicitation protections applicable to them thereunder, and each such Transferred Employee shall have the right to enforce the provisions of Section 3.1 directly against Seller in his or her own name.

Section 8.11 — Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission (including by means of electronic signatures in compliance with the U.S. Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or any similar state or federal law) shall be as effective as delivery of an original executed counterpart.

Section 8.12 — Construction. The headings and captions used in this Agreement are for reference and convenience only and shall not affect the interpretation or construction of this Agreement. The word "including" (and its derivatives, such as "include" and "includes") means "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. References to "dollars" or "$" mean United States dollars. References to "days" mean calendar days unless otherwise specified. The words "herein," "hereof," "hereby," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement. The use of any gender includes each other gender, and the use of the singular includes the plural and vice versa. The Parties have each participated in the negotiation and drafting of this Agreement, and this Agreement shall not be construed against either Party as the drafter thereof.

Section 8.13 — Relationship to APA. This Agreement is one of the Transaction Documents contemplated by the APA and is being executed and delivered in connection with and as a condition to the Closing under the APA. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the APA with respect to the restrictive covenants set forth herein (including the non-competition, non-solicitation, and related provisions), the provisions of this Agreement shall control and govern. With respect to all other matters, the APA and the other Transaction Documents shall be interpreted and applied in accordance with their respective terms without giving effect to this Section 8.13.

IN WITNESS WHEREOF, the Parties have caused this Non-Competition and Non-Solicitation Agreement to be duly executed and delivered as of the date first written above.

GENOME DX THERAPEUTICS INC.

By: ________

Name: Dr. Helena Vasquez

Title: Chief Executive Officer

Date: August 8, 2023

MERIDIAN PRECISION DIAGNOSTICS, INC.

By: ________

Name: Thomas Ellsworth

Title: Chief Executive Officer

Date: August 8, 2023

SCHEDULE A

LIST OF TRANSFERRED EMPLOYEES

The following is a list of the seventy-eight (78) former employees of Genome Dx Therapeutics Inc. (the "Seller") who accepted offers of employment from Meridian Precision Diagnostics, Inc. (the "Buyer") and transferred to Buyer effective as of the Closing Date (August 8, 2023). This schedule was prepared from the employee census included in the Disclosure Schedules to the Asset Purchase Agreement dated May 11, 2023 (specifically Schedule 3.15(a) — Employee Census), as updated through the Closing Date to reflect the final acceptance status of each employee. Out of the eighty-three (83) employees of the OncuPath Business who received offers of employment from Buyer, seventy-eight (78) accepted such offers and are listed below, organized by department and function.

I. OncuPath Research & Development (23 Employees)

II. OncuPath Commercial Operations (18 Employees)

III. OncuPath Regulatory Affairs & Quality (14 Employees)

IV. OncuPath Manufacturing & Supply Chain (15 Employees)

V. OncuPath Program Management & Administration (8 Employees)

This Schedule A is incorporated into and made a part of the Non-Competition and Non-Solicitation Agreement dated August 8, 2023, by and between Genome Dx Therapeutics Inc. and Meridian Precision Diagnostics, Inc. The information set forth herein was compiled from the employee census included in Schedule 3.15(a) to the Disclosure Schedules to the Asset Purchase Agreement dated May 11, 2023, as updated through the Closing Date. Five (5) employees of the OncuPath Business who received offers of employment from Buyer declined such offers and are not listed on this Schedule.

No.	Name	Title / Position
1	Dr. Lara Okonkwo	Vice President, OncuPath R&D
2	Dr. Michael Cherian	Senior Director, Assay Development
3	Dr. Priya Narayan	Director, Bioinformatics
4	Kevin Gallagher	Associate Director, Assay Validation
5	Dr. Fiona Xu	Principal Scientist, NGS Development
6	Dr. Andre Rousseau	Principal Scientist, IHC Platforms
7	Lisa Thornton	Senior Scientist, Assay Development
8	Dr. Tomoko Ishikawa	Senior Scientist, Genomics
9	Ryan McAllister	Scientist II, Assay Formulation
10	Dr. Samantha Bhatia	Scientist II, Molecular Biology
11	Derek Olson	Scientist I, FISH Development
12	Maria Gonzalez-Torres	Scientist I, Assay Validation
13	Dr. Benjamin Park	Computational Biologist
14	Jennifer Watts	Bioinformatics Analyst
15	Nathan Herrera	Research Associate III
16	Chloe Bergstrom	Research Associate III
17	Ahmed Rashid	Research Associate II
18	Kaitlyn Moreno	Research Associate II
19	Tyler Ngo	Research Associate I
20	Danielle Kessler	Research Associate I
21	Robert Ibanez	Laboratory Technician II
22	Megan Cartwright	Laboratory Technician I
23	Anil Subramanian	Laboratory Technician I
No.	Name	Title / Position

24	Samuel Briggs	Director, OncuPath Commercial Operations
25	Christine Duval	Associate Director, Sales
26	Marcus Washington	Regional Sales Manager, East
27	Stephanie Laird	Regional Sales Manager, West
28	Brian O'Connell	Senior Account Executive
29	Vanessa Tran	Senior Account Executive
30	David Nakamura	Account Executive
31	Rachel Kim	Account Executive
32	Jordan Fields	Account Executive
33	Laura Petersen	Associate Director, Marketing
34	Nina Kowalski	Senior Marketing Manager
35	Eric Sandoval	Product Marketing Manager
36	Amy Richardson	Marketing Coordinator
37	Gregory Hess	Medical Science Liaison
38	Dr. Nia Patterson	Medical Science Liaison
39	Sean McBride	Business Development Manager
40	Rebecca Lin	Customer Insights Analyst
41	Daniel Okoye	Sales Operations Specialist
No.	Name	Title / Position
42	Yuki Tanabe	Head of Regulatory Affairs, OncuPath
43	Dr. Catherine Morales	Senior Regulatory Affairs Manager
44	Phillip Gerhardt	Regulatory Affairs Specialist II
45	Sonia Gupta	Regulatory Affairs Specialist I
46	Amanda Clearwater	Director, Quality Assurance
47	John Petrovic	Senior Quality Engineer

48	Linda Fernandez	Quality Assurance Specialist II
49	Mark Stanton	Quality Assurance Specialist I
50	Dr. Elaine Kraft	Director, Clinical Affairs
51	David Hong	Clinical Operations Manager
52	Brittany Simmons	Clinical Data Manager
53	Jeffrey Holt	Regulatory Submissions Coordinator
54	Alicia Medina	Quality Control Analyst II
55	Christopher Bauer	Quality Control Analyst I
No.	Name	Title / Position
56	Patricia Langley	Director, Manufacturing Operations
57	Carl Yamamoto	Associate Director, Production
58	Sandra Novak	Production Supervisor
59	William Draper	Senior Manufacturing Engineer
60	Rosa Martinez	Manufacturing Technician III
61	Terrence Jackson	Manufacturing Technician II
62	Heather Bloom	Manufacturing Technician II
63	Omar El-Amin	Manufacturing Technician I
64	Sarah Whitfield	Supply Chain Manager
65	Jason Culp	Procurement Specialist
66	Natasha Volkov	Inventory Coordinator
67	Andrew Parsons	Warehouse Associate
68	Michelle Tang	Shipping and Receiving Coordinator
69	Gerald Hoffman	Process Development Engineer
70	Dr. Renata Sousa	Formulation Scientist
No.	Name	Title / Position

71	Dr. Karen Albright	Senior Program Manager
72	Steven Cho	Program Manager
73	Diana Ruiz	Project Coordinator
74	Matthew Ingram	Technical Writer
75	Leah McPherson	Administrative Coordinator
76	Richard Brennan	Financial Analyst, OncuPath
77	Tanya Brooks	Executive Assistant
78	Ivan Petrov	IT Support Specialist, OncuPath

NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Non-Competition and Non-Solicitation Agreement (this "Agreement") is entered into and effective as of August 8, 2023 (the "Closing Date"), by and between:
Genome Dx Therapeutics Inc., a Delaware corporation, with its principal offices located at 10250 Science Center Drive, Suite 600, San Diego, California 92121 (the "Seller" or the "Covenantor");
and
Meridian Precision Diagnostics, Inc., a Delaware corporation, with its principal offices located at 2400 Meridian Parkway, Suite 300, Durham, North Carolina 27713 (the "Buyer" or the "Protected Party").
Seller and Buyer are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
This Agreement is being entered into and delivered at and as of the Closing (as defined in the APA (as defined below)) pursuant to and in accordance with the requirements of that certain Asset Purchase Agreement dated as of May 11, 2023 (the "APA"), by and between Seller and Buyer, providing for the purchase and sale of all assets, intellectual property, contracts, inventory, equipment, regulatory filings, and goodwill exclusively related to Seller's OncuPath™ companion diagnostics assay line (the "OncuPath Business") for total aggregate consideration of One Hundred Forty Million Dollars ($140,000,000). The execution and delivery of this Agreement by Seller is a condition to the obligation of Buyer to consummate the Closing under the APA. Capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the APA.
RECITALS
WHEREAS, Seller has developed and operated the OncuPath Business, which includes the OncuPath™, OncuPath-HER3™, and OncuPath-GENOMARK™ companion diagnostics assay platforms, together with fourteen (14) issued United States patents, seven (7) pending patent applications, three (3) registered trademarks, associated trade secrets, proprietary know-how, and established customer relationships;
WHEREAS, Buyer is acquiring the OncuPath Business pursuant to the APA, including all Purchased Assets (as defined in the APA) and goodwill associated therewith, and is assuming certain liabilities related thereto, as more fully described in the APA;
WHEREAS, eighty-three (83) employees of the OncuPath Business received offers of employment from Buyer in connection with the transactions contemplated by the APA, of whom seventy-eight (78) accepted such offers and transferred to Buyer at Closing (the "Transferred Employees"), including key personnel Dr. Lara Okonkwo (Vice President, OncuPath R&D), Samuel Briggs (Director, OncuPath Commercial Operations), and Yuki Tanabe (Head of Regulatory Affairs, OncuPath), each of whom possesses specialized knowledge critical to the ongoing operation and commercial success of the OncuPath Business;
WHEREAS, Seller possesses extensive knowledge of the OncuPath Business, including proprietary technology, customer and supplier relationships, regulatory strategies, clinical development plans, manufacturing processes, and commercial operations, and Buyer would not have entered into the APA or consummated the transactions contemplated thereby without Seller's agreement to the restrictive covenants set forth herein;
WHEREAS, a material portion of the consideration paid by Buyer under the APA, including the One Hundred Twenty-Six Million Dollars ($126,000,000) cash payment at Closing and the right to receive up to Fourteen Million Dollars ($14,000,000) in earnout payments contingent upon the achievement of certain post-Closing milestones, is attributable to the goodwill of the OncuPath Business, and these restrictive covenants are necessary to protect the value of such goodwill and to ensure that Buyer receives the full benefit of the bargain negotiated under the APA;
WHEREAS, Seller's equity sponsor, Pinnacle Biosciences Partners Fund III, L.P., a Delaware limited partnership holding sixty-eight and four-tenths percent (68.4%) of Seller's outstanding common stock, has approved the transactions contemplated by the APA, including Seller's entry into this Agreement, and the general partner thereof, Pinnacle Biosciences Partners GP III, LLC, has consented to the obligations of Seller hereunder;
WHEREAS, the Parties acknowledge that the restrictions contained herein are reasonable in scope, duration, and geographic area, have been the subject of extensive arms'-length negotiation, and are necessary to protect Buyer's legitimate business interests in the OncuPath Business; and
WHEREAS, the Parties desire to set forth their agreements regarding non-competition, non-solicitation, confidentiality, and related matters in connection with the consummation of the transactions contemplated by the APA;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the consummation of the transactions under the APA, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:
"APA" means the Asset Purchase Agreement dated as of May 11, 2023, by and between Seller and Buyer, as may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Closing Date" means August 8, 2023, the date on which the Closing occurred under the APA.
"Companion Diagnostics" means any in vitro diagnostic test, assay, kit, reagent system, or platform that is designed, developed, manufactured, marketed, or sold for use in identifying patients who are most likely to benefit from, or be at risk of adverse effects from, a particular therapeutic product, including without limitation (i) genomic profiling assays, (ii) immunohistochemistry (IHC) assays, (iii) fluorescence in situ hybridization (FISH) assays, (iv) next-generation sequencing (NGS)-based companion diagnostic tests, (v) polymerase chain reaction (PCR)-based companion diagnostic tests, and (vi) any other in vitro diagnostic methodology used for companion diagnostic purposes, together with any regulatory submissions related thereto (including, without limitation, FDA 510(k) premarket notification submissions, premarket approval (PMA) applications, PMA supplement filings, or de novo classification requests for companion diagnostic indications, and any comparable regulatory filings with foreign regulatory authorities).
"Competing Business" means any business, enterprise, venture, or activity (whether conducted by a corporation, limited liability company, partnership, sole proprietorship, joint venture, or other entity or arrangement) that is engaged in, or that is formed or organized for the purpose of engaging in, the research, development, manufacture, commercialization, marketing, sale, distribution, or licensing of Companion Diagnostics within the Restricted Territory.
"Earnout Period" means the thirty-six (36)-month period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on August 8, 2026.
"GenoStrat™ Platform" means Seller's retained liquid biopsy platform, marketed under the GenoStrat™ brand, and all related products, services, intellectual property, and regulatory filings retained by Seller pursuant to the APA, which platform is expressly excluded from the scope of the OncuPath Business and from the non-competition covenants set forth in Article II of this Agreement, subject to the conditions specified in Section 2.2(a).
"Non-Compete Period" means the period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on the third (3rd) anniversary of the Closing Date (i.e., August 8, 2026), unless extended pursuant to Section 4.2 of this Agreement.
"Non-Solicitation Period" means the period commencing on the Closing Date and ending at 11:59 p.m. Eastern Time on the second (2nd) anniversary of the Closing Date (i.e., August 8, 2025), unless extended pursuant to Section 4.2 of this Agreement.
"OncuPath Business" has the meaning given to such term in the APA, and means all assets, intellectual property, contracts, inventory, equipment, regulatory filings, and goodwill exclusively related to Seller's OncuPath™ companion diagnostics assay line, including the OncuPath™, OncuPath-HER3™, and OncuPath-GENOMARK™ companion diagnostics assay platforms.
"Person" means any individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization, governmental authority, or other entity.
"Restricted Territory" means the United States of America, including all fifty (50) states, the District of Columbia, and all territories and possessions of the United States (including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands).
"Seller Affiliates" means any entity directly or indirectly controlling, controlled by, or under common control with Seller, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity, whether through ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, Seller Affiliates include Pinnacle Biosciences Partners Fund III, L.P., a Delaware limited partnership, and Pinnacle Biosciences Partners GP III, LLC, a Delaware limited liability company.
"Transferred Employees" means the seventy-eight (78) former employees of Seller who accepted Buyer's offers of employment and transferred to Buyer at the Closing, as listed on Schedule A attached hereto and incorporated herein by reference.
"TSA" means the Transition Services Agreement dated as of August 8, 2023, by and between Seller and Buyer, pursuant to which Seller is providing certain information technology, facilities, and human resources/payroll transition services to Buyer for a period of up to nine (9) months following the Closing Date at a fee equal to Seller's cost of providing such services plus five percent (5%).
Section 1.2 — APA Definitions. All capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings given to such terms in the APA. In the event of any conflict between the definitions set forth in this Article I and the definitions set forth in the APA, the definitions in this Article I shall control for purposes of this Agreement.
ARTICLE II — NON-COMPETITION COVENANT
Section 2.1 — Non-Competition Restriction. During the Non-Compete Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person, whether as principal, agent, partner, member, stockholder, officer, director, employee, consultant, advisor, representative, licensor, licensee, joint venturer, or in any other capacity:
(a) engage in, own, manage, operate, control, finance, invest in (other than as expressly permitted by Section 2.2(b)), or participate in the ownership, management, operation, control, or financing of, any Competing Business within the Restricted Territory;
(b) act as an officer, director, employee, partner, member, consultant, advisor, agent, representative, licensor, or licensee of, or lend Seller's name, credit, or resources to, any Person that is engaged in a Competing Business within the Restricted Territory;
(c) develop, design, formulate, manufacture, produce, assemble, market, sell, distribute, commercialize, import, export, or offer for sale any Companion Diagnostics product or service within the Restricted Territory, or direct any such activities from within or into the Restricted Territory;
(d) license, sublicense, assign, transfer, or otherwise convey or make available any technology, know-how, trade secrets, proprietary information, software, algorithms, biological materials, reagents, protocols, or intellectual property to any Person for use in connection with a Competing Business within the Restricted Territory, whether by written agreement, oral arrangement, or course of dealing; or
(e) assist, advise, counsel, or provide any form of material support (whether financial, operational, technical, or strategic) to any Person that Seller knows or reasonably should know is engaged in, or intends to engage in, a Competing Business within the Restricted Territory.
Section 2.2 — Carve-Outs and Permitted Activities. Notwithstanding the provisions of Section 2.1, the non-competition covenant set forth therein shall not prohibit or restrict any of the following activities:
(a) Retained GenoStrat™ Platform. Seller's continued research, development, manufacture, commercialization, marketing, sale, distribution, and operation of its GenoStrat™ liquid biopsy platform and any products, services, or enhancements related thereto, and any other retained businesses of Seller that do not constitute a Competing Business; provided, however, that during the Non-Compete Period, the GenoStrat™ platform and related products shall not be (i) marketed, promoted, or labeled as a companion diagnostic (as that concept is understood within the meaning of the definition of Companion Diagnostics set forth in Section 1.1), (ii) submitted to the U.S. Food and Drug Administration ("FDA") or any comparable regulatory authority for clearance or approval specifically as a companion diagnostic to a particular therapeutic product, or (iii) co-developed with a pharmaceutical or biotechnology company pursuant to any agreement that characterizes or designates the GenoStrat™ platform or any product derived therefrom as a companion diagnostic. For the avoidance of doubt, Seller's use of the GenoStrat™ platform for broad-panel tumor profiling, general genomic analysis, or research use only (RUO) applications that do not constitute Companion Diagnostics shall be permitted hereunder.
(b) Passive Investment. Seller's or any Seller Affiliate's ownership of not more than two percent (2%) of the outstanding equity securities of any class of any entity whose securities are listed on a national securities exchange or traded on a nationally recognized over-the-counter market, even if such entity is engaged in a Competing Business, provided that neither Seller nor any Seller Affiliate otherwise participates in the management, operations, governance, or strategic direction of such entity, serves as a director, officer, employee, or consultant thereof, or provides any technical, scientific, or commercial assistance thereto.
(c) Academic and Research Collaborations. Seller's engagement in bona fide research collaborations, sponsored research agreements, or cooperative research and development agreements with academic institutions, nonprofit research organizations, or governmental research agencies that are not primarily engaged in commercial Companion Diagnostics activities, provided that (i) no products or services resulting from such collaborations are commercialized, marketed, sold, or distributed as Companion Diagnostics within the Restricted Territory during the Non-Compete Period, (ii) Seller does not assign, license, or otherwise transfer to any such institution or organization any intellectual property of Seller for the purpose of enabling such institution or organization (or any third party) to develop or commercialize Companion Diagnostics within the Restricted Territory during the Non-Compete Period, and (iii) any publications or disclosures resulting from such collaborations do not include Confidential Information of the OncuPath Business.
(d) Performance under the TSA. Seller's performance of its obligations under the TSA, including the provision of information technology infrastructure support, facilities management, and human resources and payroll services to Buyer for up to nine (9) months following the Closing Date, in each case as expressly contemplated by and in accordance with the terms of the TSA.
(e) Earnout Cooperation. Seller's cooperation with Buyer in connection with the calculation and achievement of the earnout milestones as set forth in the APA and the Earnout Agreement executed concurrently therewith, including providing Buyer with reasonable access to regulatory records, clinical data, and historical business information as may be necessary or appropriate for Buyer to pursue and achieve such earnout milestones.
Section 2.3 — Acknowledgment of Reasonableness. Seller hereby acknowledges and agrees as follows:
(a) The scope of the Companion Diagnostics definition, the three (3)-year duration of the Non-Compete Period, and the geographic scope of the Restricted Territory (the United States of America) are each reasonable and necessary to protect Buyer's legitimate business interests, including the goodwill of the OncuPath Business acquired by Buyer under the APA. Seller acknowledges that the OncuPath Business operates on a nationwide basis within the United States, that the customer relationships, regulatory approvals, and intellectual property associated therewith extend throughout the Restricted Territory, and that the Restricted Territory is therefore no broader than necessary to protect Buyer's investment in the OncuPath Business.
(b) Seller received substantial consideration under the APA in connection with the sale of the OncuPath Business, including One Hundred Twenty-Six Million Dollars ($126,000,000) in cash at Closing and the right to receive up to Fourteen Million Dollars ($14,000,000) in contingent earnout payments, a material portion of which represents the goodwill of the OncuPath Business. The restrictive covenants set forth in this Agreement were a material inducement to Buyer's willingness to pay such consideration, and such consideration constitutes adequate and sufficient consideration for the covenants set forth herein.
(c) The restrictions set forth in this Article II will not impose an undue hardship on Seller, given that Seller retains its GenoStrat™ liquid biopsy platform and other non-companion-diagnostics business lines, which represent significant and ongoing revenue-generating operations, and that the restrictions are limited in scope to the specific Companion Diagnostics business sold to Buyer under the APA.
(d) Seller has been represented by experienced legal counsel in connection with the negotiation and execution of this Agreement and has had a full and adequate opportunity to review and consider the terms and conditions hereof.
ARTICLE III — NON-SOLICITATION COVENANT
Section 3.1 — Non-Solicitation of Transferred Employees. During the Non-Solicitation Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person:
(a) solicit, recruit, hire, retain, or engage (whether as an employee, independent contractor, consultant, temporary worker, or in any other capacity) any Transferred Employee, or make any offer of employment or engagement to any Transferred Employee;
(b) induce, encourage, entice, or attempt to induce, encourage, or entice any Transferred Employee to leave, resign from, or otherwise terminate his or her employment or engagement with Buyer or any of Buyer's affiliates, or to breach any employment agreement, restrictive covenant agreement, or other agreement between such Transferred Employee and Buyer; or
(c) interfere with, disrupt, or attempt to interfere with or disrupt the relationship between Buyer (or any of its affiliates) and any Transferred Employee, including by making disparaging statements regarding Buyer's management, compensation, benefits, working conditions, or business prospects to any Transferred Employee.
Section 3.2 — Non-Solicitation of OncuPath Customers and Suppliers. During the Non-Solicitation Period, Seller shall not, and Seller shall cause each of its Seller Affiliates not to, directly or indirectly, whether alone or in conjunction with any other Person:
(a) solicit, contact, divert, or seek to divert any customer, client, account, or prospective customer of the OncuPath Business (including any pharmaceutical or biotechnology company, hospital, laboratory, health system, or other entity that was a customer of the OncuPath Business at any time during the twelve (12)-month period preceding the Closing Date or that was actively being solicited by the OncuPath Business as a prospective customer as of the Closing Date) for the purpose of selling, offering, or providing Companion Diagnostics products or services to such customer, client, account, or prospective customer; or
(b) interfere with, disrupt, or attempt to interfere with or disrupt any business relationship between Buyer (or any of its affiliates) and any customer, supplier, vendor, distributor, reagent manufacturer, contract research organization, or other business partner of the OncuPath Business, or encourage or induce any such Person to cease or reduce its business with Buyer or to breach any contract or arrangement with Buyer.
Section 3.3 — Carve-Outs. Notwithstanding the provisions of Sections 3.1 and 3.2, the non-solicitation restrictions set forth therein shall be subject to the following carve-outs and exceptions:
(a) General Advertisements. The non-solicitation restrictions with respect to Transferred Employees shall not apply to general solicitations of employment that are not specifically directed at, targeted toward, or designed to attract Transferred Employees, including without limitation (i) advertisements in newspapers, trade publications, or industry journals of general circulation, (ii) postings on general-purpose job boards or online employment platforms (such as Westmark Health IT, Indeed, Penmark Technologies, or similar platforms), (iii) engagement of executive search firms or recruiting agencies, provided that such firms or agencies are instructed not to solicit or recruit Transferred Employees, and (iv) participation in industry conferences, career fairs, or similar events. For the avoidance of doubt, the hiring of any Transferred Employee who responds to a general solicitation described in this Section 3.3(a) without any direct or indirect solicitation, encouragement, or inducement by or on behalf of Seller or any Seller Affiliate shall not constitute a violation of Section 3.1.
(b) Voluntary Contact by Terminated Employees. The non-solicitation restrictions shall not prohibit Seller from hiring or engaging any individual who was a Transferred Employee if such individual (i) was terminated by Buyer without Cause (as such term is defined in Buyer's standard employment agreements) at least ninety (90) days prior to the date on which Seller extends an offer of employment or engagement to such individual, and (ii) contacts Seller or a Seller Affiliate on a wholly unsolicited basis seeking employment or engagement, without any prior direct or indirect solicitation, encouragement, or inducement by or on behalf of Seller or any Seller Affiliate.
(c) Pre-Existing Business Relationships. The customer and supplier non-solicitation restrictions set forth in Section 3.2 shall not restrict Seller from maintaining, continuing, or expanding ordinary-course business relationships with entities that are also customers, suppliers, or business partners of the OncuPath Business, provided that (i) such relationships pertain solely to Seller's retained businesses (including the GenoStrat™ Platform) and not to Companion Diagnostics products or services, (ii) Seller does not use any Confidential Information of the OncuPath Business in connection with such relationships, and (iii) Seller does not use such relationships as a means of circumventing or evading the restrictions set forth in Section 3.2 or Article II.
ARTICLE IV — ENFORCEMENT AND REMEDIES
Section 4.1 — Irreparable Harm; Injunctive Relief. Seller acknowledges and agrees that the covenants and restrictions set forth in Articles II and III of this Agreement are essential to protect Buyer's legitimate business interests in the OncuPath Business and the goodwill acquired thereunder, and that a breach or threatened breach of any such covenant or restriction would cause Buyer immediate and irreparable harm and injury for which monetary damages alone would be an inadequate remedy. Accordingly, in the event of any breach or threatened breach by Seller or any Seller Affiliate of any provision of Article II or Article III, Buyer shall be entitled, in addition to all other rights and remedies available to Buyer at law or in equity (including, without limitation, the right to recover monetary damages), to seek and obtain from any court of competent jurisdiction (i) temporary restraining orders, (ii) preliminary injunctive relief, (iii) permanent injunctive relief, and (iv) specific performance to enforce the provisions of this Agreement, in each case without the necessity of (A) proving actual damages or the inadequacy of legal remedies, (B) posting any bond or other security, or (C) satisfying any other prerequisite to equitable relief, to the fullest extent permitted by applicable law. Seller hereby waives any requirement for the posting of any bond or other security in connection with any application for injunctive relief or specific performance under this Section 4.1.
Section 4.2 — Extension of Restricted Periods. If Seller or any Seller Affiliate breaches any provision of Article II or Article III, the applicable restricted period (i.e., the Non-Compete Period or the Non-Solicitation Period, as applicable) shall be automatically extended by a period of time equal to the duration of such breach, commencing on the date on which such breach first occurred and ending on the date on which such breach is fully cured or permanently enjoined, so that Buyer receives the full benefit of the agreed-upon restricted periods set forth herein. The extension provided for in this Section 4.2 shall be in addition to, and not in limitation of, any other remedies available to Buyer.
Section 4.3 — Judicial Modification. If any court of competent jurisdiction determines that any restrictive covenant contained in this Agreement (including any covenant set forth in Article II or Article III) is unenforceable as written because it is too broad in scope, too long in duration, or too expansive in geographic area, the Parties hereby agree and stipulate that such court shall have the power and authority to reform, modify, and reduce the scope, duration, or geographic area of such covenant to the minimum extent necessary to render it valid and enforceable under applicable law, and the covenant as so reformed and modified shall thereupon be enforceable against the Parties and shall be binding upon them as if originally set forth herein in its modified form. The Parties intend that the restrictive covenants set forth in this Agreement be enforced to the fullest extent permitted by applicable law in each jurisdiction in which enforcement is sought. If any particular provision of this Agreement is adjudicated to be invalid or unenforceable in a particular jurisdiction, such adjudication shall not affect the validity or enforceability of such provision in any other jurisdiction.
Section 4.4 — Cumulative Remedies. The rights and remedies provided to Buyer in this Article IV are cumulative and shall be in addition to, and not exclusive of or in substitution for, any other rights or remedies available to Buyer under the APA, at law, or in equity, including without limitation the right to recover actual damages, consequential damages (to the extent not disclaimed), and attorneys' fees and costs incurred in enforcing the provisions of this Agreement. No single or partial exercise of any right or remedy shall preclude any further exercise thereof or the exercise of any other right or remedy.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.1 — Seller's Representations and Warranties. Seller hereby represents and warrants to Buyer as of the Closing Date as follows:
(a) Organization and Good Standing. Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Corporate Power and Authority. Seller has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby are within Seller's corporate powers.
(c) Due Authorization. The execution, delivery, and performance of this Agreement by Seller have been duly and validly authorized by all necessary corporate action on the part of Seller, including approval by the Board of Directors of Seller at a duly convened meeting held on May 8, 2023, and no other corporate proceedings on the part of Seller are necessary to authorize the execution, delivery, or performance of this Agreement. No stockholder vote or consent of the holders of Seller's outstanding equity securities is required to authorize this Agreement or the performance of Seller's obligations hereunder, other than any such vote or consent that has been duly obtained.
(d) Enforceability. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
(e) No Conflicts. The execution, delivery, and performance of this Agreement by Seller do not and will not (i) conflict with, violate, or result in a breach of Seller's certificate of incorporation or bylaws, each as currently in effect, (ii) conflict with, violate, result in a breach of, or constitute a default under (with or without notice, lapse of time, or both) any material contract, agreement, commitment, instrument, or obligation to which Seller is a party or by which Seller or any of its properties or assets is bound, or (iii) violate any applicable law, rule, regulation, order, judgment, or decree of any governmental authority applicable to Seller.
(f) No Governmental Approvals Required. No consent, approval, authorization, license, permit, order, or filing with or notice to any governmental authority is required in connection with Seller's execution, delivery, and performance of this Agreement, other than any such consent, approval, authorization, license, permit, order, filing, or notice that has been duly obtained or made.
Section 5.2 — Buyer's Representations and Warranties. Buyer hereby represents and warrants to Seller as of the Closing Date as follows:
(a) Organization and Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease, and operate its properties and to carry on its business as presently conducted.
(b) Corporate Power and Authority. Buyer has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) Enforceability. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
ARTICLE VI — TERM AND TERMINATION
Section 6.1 — Effective Date. This Agreement shall become effective as of the Closing Date (August 8, 2023) and shall remain in effect in accordance with the terms set forth in this Article VI.
Section 6.2 — Expiration.
(a) The non-competition covenants set forth in Article II of this Agreement shall expire at 11:59 p.m. Eastern Time on August 8, 2026 (the third (3rd) anniversary of the Closing Date), unless the Non-Compete Period is extended pursuant to Section 4.2 of this Agreement on account of a breach by Seller or any Seller Affiliate of any provision of Article II.
(b) The non-solicitation covenants set forth in Article III of this Agreement shall expire at 11:59 p.m. Eastern Time on August 8, 2025 (the second (2nd) anniversary of the Closing Date), unless the Non-Solicitation Period is extended pursuant to Section 4.2 of this Agreement on account of a breach by Seller or any Seller Affiliate of any provision of Article III.
Section 6.3 — Survival. The following provisions of this Agreement shall survive the expiration or earlier termination of the restricted periods set forth in Articles II and III and shall continue in full force and effect indefinitely (or, where a specific period is stated, for the duration of such period): Article IV (Enforcement and Remedies), Article VII (Confidentiality), and Article VIII (General Provisions). In addition, any claims or causes of action arising out of a breach of any provision of this Agreement that occurred during the applicable restricted period shall survive the expiration of such restricted period and may be asserted and enforced by Buyer after such expiration.
ARTICLE VII — CONFIDENTIALITY
Section 7.1 — Confidentiality Obligations. Without limiting the confidentiality obligations of Seller set forth in Article VII of the APA (which obligations are hereby incorporated herein by reference and shall apply in full to all Confidential Information of the OncuPath Business), Seller covenants and agrees that, from and after the Closing Date, Seller shall not, and shall cause each of its Seller Affiliates, officers, directors, employees, agents, and representatives not to, directly or indirectly, use, disclose, disseminate, publish, or otherwise make available to any Person any Confidential Information of the OncuPath Business, including without limitation (a) trade secrets and proprietary know-how relating to assay development, manufacturing processes, and reagent formulations, (b) customer data, customer lists, pricing information, and contract terms, (c) regulatory strategies, regulatory submissions, and clinical data, (d) proprietary assay formulations and protocols, (e) supplier terms and relationships, and (f) business plans, financial projections, and strategic plans of the OncuPath Business, except (i) as may be required to perform Seller's obligations under the TSA or the Earnout Agreement, (ii) as may be required by applicable law, regulation, or governmental order, provided that Seller shall provide Buyer with prompt written notice (to the extent permitted by law) of any such legally compelled disclosure and shall cooperate with Buyer in seeking a protective order or other appropriate remedy, or (iii) to the extent such information becomes generally available to the public other than as a result of a breach of this Section 7.1 or any other confidentiality obligation owed by Seller to Buyer.
Section 7.2 — Return of Materials. To the extent not previously delivered to Buyer at or prior to the Closing, Seller shall, within thirty (30) days following the Closing Date (or, with respect to materials in the possession of Seller's outside advisors, within sixty (60) days following the Closing Date), return to Buyer or, at Buyer's election, destroy all documents, files, records, electronic media, laboratory notebooks, samples, prototypes, and other materials in the possession, custody, or control of Seller or any Seller Affiliate that contain, embody, or reflect Confidential Information of the OncuPath Business, and shall certify in writing to Buyer that such return or destruction has been completed. Notwithstanding the foregoing, Seller may retain (a) one (1) copy of such materials in the files of Seller's General Counsel solely for purposes of monitoring compliance with this Agreement and the APA, and (b) any copies of such materials that are contained in routine electronic backup storage media created and maintained in the ordinary course of business, provided that such retained copies remain subject to the confidentiality obligations set forth in this Article VII and shall not be accessed or used for any purpose other than compliance monitoring or as required by applicable law.
ARTICLE VIII — GENERAL PROVISIONS
Section 8.1 — Governing Law. This Agreement, and all claims, disputes, or causes of action (whether in contract, tort, or otherwise) arising out of or relating to this Agreement or the negotiation, execution, or performance hereof, shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.2 — Jurisdiction; Venue. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware, or, if no state court in the State of Delaware has jurisdiction, the United States District Court for the District of Delaware), in any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, (a) any objection that it may now or hereafter have to the laying of venue in any such court, and (b) any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by applicable law.
Section 8.3 — Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.3.
Section 8.4 — Assignment. Buyer may, without the prior written consent of Seller, assign this Agreement and any or all of its rights and obligations hereunder to (a) any successor in interest to the OncuPath Business, whether by merger, consolidation, acquisition, reorganization, or sale of all or substantially all of the assets of the OncuPath Business, (b) any direct or indirect subsidiary or affiliate of Buyer, or (c) any purchaser or transferee of all or substantially all of Buyer's assets or equity interests; provided that no such assignment shall relieve Buyer of its obligations hereunder unless the assignee expressly assumes such obligations in writing. Seller may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Buyer, which consent may be withheld in Buyer's sole and absolute discretion. Any purported assignment in violation of this Section 8.4 shall be null and void and of no force or effect.
Section 8.5 — Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered personally, (b) one (1) business day after deposit with a nationally recognized overnight courier service (with tracking and proof of delivery), (c) three (3) business days after deposit in the United States mail, registered or certified, return receipt requested, postage prepaid, or (d) upon confirmation of transmission by electronic mail (provided that a copy is also sent by one of the other methods described in clauses (a) through (c) above within two (2) business days), in each case addressed as follows:
If to Seller:
Genome Dx Therapeutics Inc. 10250 Science Center Drive, Suite 600 San Diego, California 92121
Attention: Rebecca Chiang, General Counsel
Email: rchiang@genomedx.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 555 South Hope Street, Suite 4400 Los Angeles, California 90071
Attention: James Prentice
Email: jprentice@calderwoodharkness.com
If to Buyer:
Meridian Precision Diagnostics, Inc. 2400 Meridian Parkway, Suite 300 Durham, North Carolina 27713
Attention: David Pruitt, General Counsel
Email: dpruitt@meridianprecision.com
with a copy (which shall not constitute notice) to:
Whitfield Sayer & Gregg LLP 200 South Tryon Street, Suite 2800 Charlotte, North Carolina 28202
Attention: Jonathan Whitfield
Email: jwhitfield@wsglaw.com
Either Party may change its address for notice by giving written notice to the other Party in accordance with this Section 8.5.
Section 8.6 — Entire Agreement. This Agreement, together with the APA and the other Transaction Documents (as defined in the APA), including the TSA, the Earnout Agreement, and all exhibits and schedules attached hereto and thereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, correspondence, agreements, understandings, and commitments (whether written or oral) between the Parties with respect to the subject matter hereof.
Section 8.7 — Amendments; Waivers. This Agreement may not be amended, supplemented, or otherwise modified except by a written instrument duly executed by both Parties. No waiver of any provision of this Agreement, or of any right or remedy arising hereunder, shall be effective unless set forth in a written instrument signed by the Party against whom enforcement of such waiver is sought. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies provided by law or in equity.
Section 8.8 — Severability. If any provision of this Agreement, or the application of any such provision to any Person or circumstance, is held by a court of competent jurisdiction or other governmental authority to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement or the application of such provision to any other Person or circumstance, and the remaining provisions of this Agreement shall continue in full force and effect. To the extent permitted by applicable law, the Parties hereby waive any provision of law that renders any provision of this Agreement invalid, illegal, or unenforceable in any respect.
Section 8.9 — Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Seller shall cause each Seller Affiliate to comply with the terms and conditions of this Agreement applicable to Seller Affiliates, and Seller shall be jointly and severally liable for any breach of this Agreement by any Seller Affiliate.
Section 8.10 — No Third-Party Beneficiaries. This Agreement is for the sole and exclusive benefit of the Parties hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement; provided, however, that the Transferred Employees listed on Schedule A are intended third-party beneficiaries of Section 3.1 solely for the limited purpose of enforcing the non-solicitation protections applicable to them thereunder, and each such Transferred Employee shall have the right to enforce the provisions of Section 3.1 directly against Seller in his or her own name.
Section 8.11 — Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, portable document format (.pdf), or other electronic transmission (including by means of electronic signatures in compliance with the U.S. Electronic Signatures in Global and National Commerce Act, the Uniform Electronic Transactions Act, or any similar state or federal law) shall be as effective as delivery of an original executed counterpart.
Section 8.12 — Construction. The headings and captions used in this Agreement are for reference and convenience only and shall not affect the interpretation or construction of this Agreement. The word "including" (and its derivatives, such as "include" and "includes") means "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. References to "dollars" or "$" mean United States dollars. References to "days" mean calendar days unless otherwise specified. The words "herein," "hereof," "hereby," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement. The use of any gender includes each other gender, and the use of the singular includes the plural and vice versa. The Parties have each participated in the negotiation and drafting of this Agreement, and this Agreement shall not be construed against either Party as the drafter thereof.
Section 8.13 — Relationship to APA. This Agreement is one of the Transaction Documents contemplated by the APA and is being executed and delivered in connection with and as a condition to the Closing under the APA. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the APA with respect to the restrictive covenants set forth herein (including the non-competition, non-solicitation, and related provisions), the provisions of this Agreement shall control and govern. With respect to all other matters, the APA and the other Transaction Documents shall be interpreted and applied in accordance with their respective terms without giving effect to this Section 8.13.
IN WITNESS WHEREOF, the Parties have caused this Non-Competition and Non-Solicitation Agreement to be duly executed and delivered as of the date first written above.
GENOME DX THERAPEUTICS INC.
By: ________
Name: Dr. Helena Vasquez
Title: Chief Executive Officer
Date: August 8, 2023
MERIDIAN PRECISION DIAGNOSTICS, INC.
By: ________
Name: Thomas Ellsworth
Title: Chief Executive Officer
Date: August 8, 2023
SCHEDULE A
LIST OF TRANSFERRED EMPLOYEES
The following is a list of the seventy-eight (78) former employees of Genome Dx Therapeutics Inc. (the "Seller") who accepted offers of employment from Meridian Precision Diagnostics, Inc. (the "Buyer") and transferred to Buyer effective as of the Closing Date (August 8, 2023). This schedule was prepared from the employee census included in the Disclosure Schedules to the Asset Purchase Agreement dated May 11, 2023 (specifically Schedule 3.15(a) — Employee Census), as updated through the Closing Date to reflect the final acceptance status of each employee. Out of the eighty-three (83) employees of the OncuPath Business who received offers of employment from Buyer, seventy-eight (78) accepted such offers and are listed below, organized by department and function.
I. OncuPath Research & Development (23 Employees)
II. OncuPath Commercial Operations (18 Employees)
III. OncuPath Regulatory Affairs & Quality (14 Employees)
IV. OncuPath Manufacturing & Supply Chain (15 Employees)
V. OncuPath Program Management & Administration (8 Employees)
This Schedule A is incorporated into and made a part of the Non-Competition and Non-Solicitation Agreement dated August 8, 2023, by and between Genome Dx Therapeutics Inc. and Meridian Precision Diagnostics, Inc. The information set forth herein was compiled from the employee census included in Schedule 3.15(a) to the Disclosure Schedules to the Asset Purchase Agreement dated May 11, 2023, as updated through the Closing Date. Five (5) employees of the OncuPath Business who received offers of employment from Buyer declined such offers and are not listed on this Schedule.
No. | Name | Title / Position
1 | Dr. Lara Okonkwo | Vice President, OncuPath R&D
2 | Dr. Michael Cherian | Senior Director, Assay Development
3 | Dr. Priya Narayan | Director, Bioinformatics
4 | Kevin Gallagher | Associate Director, Assay Validation
5 | Dr. Fiona Xu | Principal Scientist, NGS Development
6 | Dr. Andre Rousseau | Principal Scientist, IHC Platforms
7 | Lisa Thornton | Senior Scientist, Assay Development
8 | Dr. Tomoko Ishikawa | Senior Scientist, Genomics
9 | Ryan McAllister | Scientist II, Assay Formulation
10 | Dr. Samantha Bhatia | Scientist II, Molecular Biology
11 | Derek Olson | Scientist I, FISH Development
12 | Maria Gonzalez-Torres | Scientist I, Assay Validation
13 | Dr. Benjamin Park | Computational Biologist
14 | Jennifer Watts | Bioinformatics Analyst
15 | Nathan Herrera | Research Associate III
16 | Chloe Bergstrom | Research Associate III
17 | Ahmed Rashid | Research Associate II
18 | Kaitlyn Moreno | Research Associate II
19 | Tyler Ngo | Research Associate I
20 | Danielle Kessler | Research Associate I
21 | Robert Ibanez | Laboratory Technician II
22 | Megan Cartwright | Laboratory Technician I
23 | Anil Subramanian | Laboratory Technician I
No. | Name | Title / Position
24 | Samuel Briggs | Director, OncuPath Commercial Operations
25 | Christine Duval | Associate Director, Sales
26 | Marcus Washington | Regional Sales Manager, East
27 | Stephanie Laird | Regional Sales Manager, West
28 | Brian O'Connell | Senior Account Executive
29 | Vanessa Tran | Senior Account Executive
30 | David Nakamura | Account Executive
31 | Rachel Kim | Account Executive
32 | Jordan Fields | Account Executive
33 | Laura Petersen | Associate Director, Marketing
34 | Nina Kowalski | Senior Marketing Manager
35 | Eric Sandoval | Product Marketing Manager
36 | Amy Richardson | Marketing Coordinator
37 | Gregory Hess | Medical Science Liaison
38 | Dr. Nia Patterson | Medical Science Liaison
39 | Sean McBride | Business Development Manager
40 | Rebecca Lin | Customer Insights Analyst
41 | Daniel Okoye | Sales Operations Specialist
No. | Name | Title / Position
42 | Yuki Tanabe | Head of Regulatory Affairs, OncuPath
43 | Dr. Catherine Morales | Senior Regulatory Affairs Manager
44 | Phillip Gerhardt | Regulatory Affairs Specialist II
45 | Sonia Gupta | Regulatory Affairs Specialist I
46 | Amanda Clearwater | Director, Quality Assurance
47 | John Petrovic | Senior Quality Engineer
48 | Linda Fernandez | Quality Assurance Specialist II
49 | Mark Stanton | Quality Assurance Specialist I
50 | Dr. Elaine Kraft | Director, Clinical Affairs
51 | David Hong | Clinical Operations Manager
52 | Brittany Simmons | Clinical Data Manager
53 | Jeffrey Holt | Regulatory Submissions Coordinator
54 | Alicia Medina | Quality Control Analyst II
55 | Christopher Bauer | Quality Control Analyst I
No. | Name | Title / Position
56 | Patricia Langley | Director, Manufacturing Operations
57 | Carl Yamamoto | Associate Director, Production
58 | Sandra Novak | Production Supervisor
59 | William Draper | Senior Manufacturing Engineer
60 | Rosa Martinez | Manufacturing Technician III
61 | Terrence Jackson | Manufacturing Technician II
62 | Heather Bloom | Manufacturing Technician II
63 | Omar El-Amin | Manufacturing Technician I
64 | Sarah Whitfield | Supply Chain Manager
65 | Jason Culp | Procurement Specialist
66 | Natasha Volkov | Inventory Coordinator
67 | Andrew Parsons | Warehouse Associate
68 | Michelle Tang | Shipping and Receiving Coordinator
69 | Gerald Hoffman | Process Development Engineer
70 | Dr. Renata Sousa | Formulation Scientist
No. | Name | Title / Position
71 | Dr. Karen Albright | Senior Program Manager
72 | Steven Cho | Program Manager
73 | Diana Ruiz | Project Coordinator
74 | Matthew Ingram | Technical Writer
75 | Leah McPherson | Administrative Coordinator
76 | Richard Brennan | Financial Analyst, OncuPath
77 | Tanya Brooks | Executive Assistant
78 | Ivan Petrov | IT Support Specialist, OncuPath

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

RECITALS

GENOME DX THERAPEUTICS INC.

MERIDIAN PRECISION DIAGNOSTICS, INC.

SCHEDULE A

LIST OF TRANSFERRED EMPLOYEES

Record

Parties

Dates

Amounts