Cayman Islands | 6770 | 98-1783595 | ||||
(State or other jurisdiction of incorporation or organization) | (Primary Standard Industrial Classification Code Number) | (I.R.S. Employer Identification No.) | ||||
Eric Blanchard Peter Byrne Kevin Cooper Cooley LLP 500 Boylston Street, 14th Floor Boston, Massachusetts 02116 Tel.: (617) 937-2300 | Jocelyn M. Arel Sarah Ashfaq Justin Anslow Katherine Hand Goodwin Procter LLP 100 Northern Avenue Boston, Massachusetts 02210 Tel.: (617) 570-1000 | ||
Large accelerated filer | ☐ | Accelerated filer | ☐ | ||||||
Non-accelerated filer | ☒ | Smaller reporting company | ☒ | ||||||
Emerging growth company | ☒ | ||||||||
* | Prior to the consummation of the Business Combination described herein, the Registrant intends to effect a deregistration under Section 206 of the Companies Act (As Revised) of the Cayman Islands and a domestication under Section 388 of the Delaware General Corporation Law, pursuant to which the Registrant’s jurisdiction of incorporation will be changed from the Cayman Islands to the State of Delaware. All securities being registered will be issued by Perceptive Capital Solutions Corp (after its domestication as a corporation incorporated in the State of Delaware), the continuing entity following the Domestication, which will be renamed “Freenome, Inc.” |
Exact Name of Co-Registrant as Specified in its Charter(1)(2) | State or Other Jurisdiction of Incorporation or Organization | Primary Standard Industrial Classification Code Number | I.R.S. Employer Identification Number | ||||||
Freenome Holdings, Inc. | Delaware | 8071 | 81-2562661 | ||||||
(1) | The Co-Registrant has the following principal executive office: |
(2) | The agent for service for the Co-Registrant is: |
• | the Domestication is intended to occur at least one business day prior to the Closing Date. In connection with the Domestication, (1)(a) immediately prior to the Domestication, the holders of each issued and outstanding Class B ordinary share of PCSC, par value $0.0001 per share (the “PCSC Class B Share”) will elect to convert their PCSC Class B Shares into Class A ordinary shares of PCSC, par value $0.0001 per share (the “PCSC Class A Shares”), (b) immediately prior to the Domestication, PCSC will effect the redemption of the PCSC Class A Shares (the “public shares,” the holders of public shares, the “public shareholders”) |
• | at the Effective Time, (i) the Freenome Common Shares issued and outstanding as of immediately prior to the Effective Time (including such shares issued upon the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time in accordance with the terms of the Business Combination Agreement, but excluding Freenome Common Shares held in treasury or by Freenome stockholders who have properly demanded appraisal of such Freenome Common Shares in accordance with Section 262 of the DGCL) will be automatically canceled and extinguished and converted into the right to receive a number of shares of New Freenome Common Stock equal to an exchange ratio, which is based on an implied Freenome base equity value of $725,000,000 and subject to certain adjustments as set forth in the Business Combination Agreement (the “Exchange Ratio”); (ii) each option to purchase Freenome Common Shares (each, a “Freenome Option”), whether vested or unvested, will cease to represent the right to purchase Freenome Common Shares and will be canceled in exchange for an option to purchase New Freenome Common Stock (each, a “Rollover Option”) under the New Freenome Equity Incentive Plan, in an amount equal to the product (rounded down to the nearest whole number) of (x) the number of Freenome Common Shares subject to such Freenome Option immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such Freenome Option immediately prior to the Effective Time, divided by (ii) the Exchange Ratio, and generally subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome Option immediately prior to the Effective Time; and (iii) each restricted stock unit award that is outstanding with respect to Freenome Common Shares (each, a “Freenome RSU Award”), whether vested or unvested, will cease to have any rights in respect of the Freenome Common Shares and will be canceled in exchange for a restricted stock unit award under the New Freenome Equity Incentive Plan (each, a “Rollover RSU Award”) that settles in a number of shares of New Freenome Common Stock (rounded down to the nearest whole share) in an amount and subject to such terms and conditions, in each case, as to be set forth on an allocation schedule, that will generally be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome RSU Award immediately prior to the Effective Time. As of March 15, 2026, and assuming an Exchange Ratio of 0.2955, there were (i) 26,646,057 Freenome Common Shares and 213,907,881 shares of Freenome preferred stock outstanding, that would collectively convert into 71,089,352 shares of New Freenome Common Stock, (ii) 29,512,900 Freenome Options outstanding that would convert into 8,252,587 Rollover Options and (iii) 14,522,802 Freenome RSU Awards that would convert into 4,291,830 Rollover RSU Awards. |
• | a proposal to approve, by special resolution of the holders of PCSC Class B Shares, the Domestication; |
• | a proposal to approve, by special resolution of the holders of PCSC Class B Shares, that the Existing Governing Documents be amended and restated by deletion in their entirety and the substitution in their place of the Proposed Governing Documents; |
• | the following six (6) separate proposals to approve, by ordinary resolutions, on a non-binding and advisory basis only, the following governance provisions contained in the Proposed Governing Documents: |
• | to amend the Existing Governing Documents to authorize the change in the authorized capital stock of PCSC from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares, and 1,000,000 preference shares, par value of $0.0001 per share, to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated preferred stock, par value $0.0001 per share; |
• | to amend the Existing Governing Documents to authorize adopting Delaware as the exclusive forum for certain stockholder litigation; |
• | to amend the Existing Governing Documents to approve provisions requiring the affirmative vote of at least (i) two-thirds of the outstanding shares of capital stock entitled to vote to adopt, amend or repeal the Proposed Bylaws and (ii) a majority of New Freenome’s then outstanding common stock (except where a lower threshold is provided by the DGCL) for amendments to the Proposed Certificate of Incorporation; |
• | to amend the Existing Governing Documents to approve provisions permitting the removal of a director only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, voting together as a single class; |
• | to amend the Existing Governing Documents to approve provisions requiring stockholders to take action at an annual or special meeting and prohibiting stockholder action by written consent in lieu of a meeting; and |
• | to amend the Existing Governing Documents to authorize (i) changing the corporate name from “Perceptive Capital Solutions Corp” to “Freenome, Inc.,” (ii) making New Freenome’s corporate existence perpetual, and (iii) removing certain provisions related to PCSC’s status as a blank check company that will no longer be applicable upon consummation of the Business Combination. |
• | a proposal to approve, by ordinary resolution, the issuance of shares of New Freenome Common Stock issued in connection with the Business Combination and the PIPE Financing pursuant to Nasdaq Listing Rule 5635; |
• | a proposal to approve and adopt, by ordinary resolution, the New Freenome Equity Incentive Plan; |
• | a proposal to approve and adopt, by ordinary resolution, the New Freenome Employee Stock Purchase Plan; and |
• | a proposal to approve, by ordinary resolution, the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to, among other things, permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting. |
Sincerely, | |||
Joseph Edelman Chairman of the Board of Directors | |||
• | Proposal No. 1—The Business Combination Proposal—RESOLVED, as an ordinary resolution, that, subject to the approval of the Domestication Proposal, the Governing Documents Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal, the entry of PCSC into the Business Combination Agreement, dated December 5, 2025 (as it may be amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), by and among PCSC, StarNet Merger Sub I, Corp., StarNet Merger Sub II, LLC, and Freenome Holdings, Inc. (in the form attached to the proxy statement/prospectus of the meeting as Annex A), the consummation of the transactions contemplated by the Business Combination Agreement and the performance by PCSC of its obligations thereunder thereby be ratified, approved, adopted and confirmed in all respects. |
• | Proposal No. 2—The Domestication Proposal—RESOLVED, as a special resolution of the holders of the PCSC Class B Shares, that, subject to the approval of the Business Combination Proposal, the Governing Documents Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal, PCSC de-register from the Registrar of Companies in the Cayman Islands and transfer by way of continuation from the Cayman Islands to Delaware pursuant to Part 12 of the Companies Act (Revised) of the Cayman Islands and Section 388 of the General Corporation Law of the State of Delaware and, immediately upon being de-registered in the Cayman Islands, PCSC be continued and domesticated as a corporation under the laws of the state of Delaware and, conditional upon, and with effect from, the registration of PCSC as a corporation in the State of Delaware, the name of PCSC be changed from “Perceptive Capital Solutions Corp” to “Freenome, Inc.” |
• | Proposal No. 3—Governing Documents Proposal—RESOLVED, as a special resolution of the holders of the PCSC Class B Shares, that subject to the approval of the Business Combination Proposal, the Domestication Proposal, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal and conditional upon, and with effect from, the registration of PCSC as a corporation in the State of Delaware, the amended and restated memorandum and articles of association of PCSC currently in effect be amended and restated by the deletion in their entirety and the substitution in their place of the Proposed Certificate of Incorporation and the Proposed Bylaws (in the form attached to the proxy statement/prospectus of the meeting as Annex H and Annex I, respectively). |
• | Proposal No. 4—Advisory Governing Documents Proposals—RESOLVED, as six separate ordinary resolutions on a non-binding and advisory basis only, that the following governance provisions contained in the Proposed Governing Documents be and are hereby approved and adopted: |
• | Proposal A—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to authorize the change in the authorized capital stock of PCSC from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares, and 1,000,000 preference shares, par value of $0.0001 per share, to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated preferred stock, par value $0.0001 per share. |
• | Proposal B—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to authorize adopting Delaware as the exclusive forum for certain stockholder litigation. |
• | Proposal C—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to approve provisions requiring the affirmative vote of at least (i) two-thirds of the outstanding shares of capital stock entitled to vote to adopt, amend or repeal the Proposed Bylaws and (ii) a majority of New Freenome’s then outstanding common stock (except where a lower threshold is provided by the DGCL) for amendments to the Proposed Certificate of Incorporation. |
• | Proposal D—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to approve provisions permitting the removal of a director only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, voting together as a single class. |
• | Proposal E—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to approve provisions requiring stockholders to take action at an annual or special meeting and prohibiting stockholder action by written consent in lieu of a meeting. |
• | Proposal F—RESOLVED, as an ordinary resolution, to amend the Existing Governing Documents to authorize (1) changing the corporate name from “Perceptive Capital Solutions Corp” to “Freenome, Inc.,” (2) making New Freenome’s corporate existence perpetual, and (3) removing certain provisions related to PCSC’s status as a blank check company that will no longer be applicable upon consummation of the Business Combination. |
• | Proposal No. 5—The Nasdaq Proposal—RESOLVED, as an ordinary resolution, that subject to the approval of the Business Combination Proposal, the Domestication Proposal, the Governing Documents Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal, for the purposes of complying with the applicable provisions of Nasdaq Stock Exchange Listing Rule 5635(a), (b) and (d), the issuance or potential issuance of (i) shares of New Freenome Common Stock be approved to the shareholders of PCSC in the Domestication and stockholders of Freenome in the First Merger pursuant to the Business Combination Agreement, and (ii) shares of New Freenome Common Stock to the PIPE Investors in the PIPE Financing pursuant to the Subscription Agreements, and (iii) any other issuances of Freenome Common Stock and securities convertible into or exercisable for Freenome Common Stock pursuant to subscription, purchase or similar agreements PCSC has entered, or may enter, into prior to Closing, be approved in all respects. |
• | Proposal No. 6—The Equity Incentive Plan Proposal—RESOLVED, as an ordinary resolution, that subject to the approval of the Business Combination Proposal, the Domestication Proposal, the Governing Documents Proposal, the Nasdaq Proposal and the Employee Stock Purchase Plan Proposal, the Freenome Holdings, Inc. 2026 Equity Incentive Plan, a copy of which is attached to the proxy statement/prospectus as Annex J, be adopted and approved. |
• | Proposal No. 7—The Employee Stock Purchase Plan Proposal—RESOLVED, as an ordinary resolution, that subject to the approval of the Business Combination Proposal, the Domestication Proposal, the Governing Documents Proposal, the Nasdaq Proposal and the Equity Incentive Plan Proposal, the Freenome Holdings, Inc. 2026 Employee Stock Purchase Plan, a copy of which is attached to the proxy statement/prospectus as Annex K, be adopted and approved. |
• | Proposal No. 8—The Adjournment Proposal—RESOLVED, as an ordinary resolution, that the adjournment of the extraordinary general meeting to a later date or dates, if necessary or convenient (A) to the extent necessary to ensure that any required supplement or amendment to the proxy statement/prospectus is |
(i) | hold public shares; and |
(ii) | prior to 5:00 p.m., Eastern Time, on [•], 2026 (two business days prior to the initially scheduled vote at the extraordinary general meeting), (a) submit a written request to the PCSC transfer agent in which you (i) request that PCSC redeems your public shares for cash, and (ii) identify yourself as the beneficial holder of the public shares and provide your legal name, phone number and address; and (b) deliver your public shares to the PCSC transfer agent physically or electronically through The Depository Trust Company. |
Thank you for your participation. We look forward to your continued support. | |||
By Order of the Board of Directors of Perceptive Capital Solutions Corp, | |||
Joseph Edelman | |||
Chairman of the Board of Directors | |||
• | “Aggregate Transaction Proceeds” means the aggregate cash proceeds to be received by PCSC from the trust account in connection with the Business Combination, together with aggregate gross proceeds from the PIPE Financing, after deducting PCSC’s unpaid expenses, liabilities, and any amounts paid to PCSC shareholders that exercise their redemption rights in connection with the Business Combination; |
• | “Aggregate Transaction Proceeds Condition” means the condition to consummation of the Business Combination that the Aggregate Transaction Proceeds equal no less than $250,000,000; |
• | “Allocation Schedule” means that certain allocation schedule that Freenome is required to deliver to PCSC under the Business Combination Agreement setting forth, as of immediately prior to the Effective Time, the amount of Freenome shares held by or issuable to Freenome Stockholders or holders of certain convertible securities of Freenome; |
• | “Business Combination” are to the Domestication, the Mergers and other transactions contemplated by the Business Combination Agreement, collectively, including the PIPE Financing; |
• | “Business Combination Agreement” are to that certain Business Combination Agreement, dated December 5, 2025 (as may be amended, supplemented or otherwise modified from time to time), by and among PCSC, Merger Sub I, Merger Sub II and Freenome; |
• | “Business Combination Proposal” are to that certain proposal to approve and adopt the Business Combination Agreement, dated December 5, 2025 (as it may be amended, supplemented or otherwise modified from time to time, the “Business Combination Agreement”); |
• | “Cayman Companies Act” are to the Companies Act (Revised) of the Cayman Islands as the same may be amended from time to time; |
• | “Class B Shareholders” are to the holders of the PCSC Class B Shares; |
• | “Closing” are to the closing of the Business Combination; |
• | “Closing Date” means that date that is in no event later than the fifth (5th) business day, following the satisfaction (or, to the extent permitted by applicable law, waiver) of the conditions described under the section entitled “Business Combination Proposal—The Business Combination Agreement—Conditions to Closing of the Business Combination,” (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) or at such other date as PCSC and Freenome may agree in writing; |
• | “Condition Precedent Proposals” are to the Business Combination Proposal, the Domestication Proposal, the Governing Documents Proposals, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal, collectively; |
• | “Continental” are to Continental Stock Transfer & Trust Company; |
• | “DGCL” are to the General Corporation Law of the State of Delaware; |
• | “Domestication” are to the de-registration of PCSC from the Registrar of Companies in the Cayman Islands and the transfer by way of continuation from the Cayman Islands and the continuation and domestication of PCSC as a corporation incorporated in the State of Delaware; |
• | “Effective Time” means the time at which the First Merger becomes effective; |
• | “Existing Governing Documents” are to the amended and restated memorandum and articles of association of PCSC; |
• | “extraordinary general meeting” are to the extraordinary general meeting of PCSC at [•] a.m., Eastern Time, on [•], 2026, at the offices of Cooley LLP located at 55 Hudson Yards, New York, New York 10001, and via a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be adjourned; |
• | “First Merger” are to the merger of Merger Sub I with and into Freenome pursuant to the Business Combination Agreement, with Freenome continuing as the surviving company of the First Merger and, after giving effect to the First Merger, Freenome becoming a wholly-owned subsidiary of New Freenome; |
• | “Freenome Common Shares” are to, collectively, each share of Freenome common stock (each, a Freenome Common Share); |
• | “Freenome Strategic Transaction Committee” means the special committee of the board of directors of Freenome Holdings, Inc. consisting solely of independent and disinterested members of the Company Board, which was formed on August 3, 2023, and which reviewed, evaluated and approved the Business Combination Agreement and the transactions contemplated thereby, including the Mergers, and made the Company Freenome Strategic Transaction Committee Recommendation; |
• | “Freenome Warrant Agreements” are to, collectively, (i) that certain Warrant to Purchase Common Stock, dated as of October 16, 2019, by and between the Company and Riviera Partners Investments, LLC, and (ii) that certain Warrant to Purchase Common Stock, dated as of November 10, 2022, by and between the Company and New England Biolabs, Inc; |
• | “initial public offering” are to PCSC’s initial public offering that was consummated on June 13, 2024; |
• | “initial shareholders” are to Sponsor and each of Messrs. McKenna, Song and Waksal; |
• | “Investor Rights Agreement” means that certain investor rights agreement to be entered into at Closing by and among PCSC, the Perceptive Shareholders, the RA Capital Shareholders, and certain shareholders of the Company to be mutually agreed upon by the Company and PCSC; |
• | “Merger Sub I” are to StarNet Merger Sub I, Corp., a Delaware corporation and wholly-owned subsidiary of PCSC prior to the consummation of the Business Combination; |
• | “Merger Sub II” are to StarNet Merger Sub II, LLC, a Delaware limited liability company and wholly-owned subsidiary of PCSC prior to the consummation of the Business Combination; |
• | “Mergers” are to the “First Merger” together with the “Second Merger”; |
• | “Nasdaq” are to the Nasdaq Capital Market; |
• | “New Freenome” are to Freenome, Inc. (f.k.a. Perceptive Capital Solutions Corp) upon and after the Domestication; |
• | “New Freenome Board” are to the board of directors of New Freenome; |
• | “New Freenome Bylaws” are to the proposed new bylaws of New Freenome, to take effect upon the Domestication; |
• | “New Freenome Charter” are to the proposed new certificate of incorporation of New Freenome, to take effect upon the Domestication; |
• | “New Freenome Common Stock” are to the common stock, par value $0.0001 per share, of New Freenome; |
• | “New Freenome Employee Stock Purchase Plan” are to the Freenome, Inc. 2026 Employee Stock Purchase Plan, to be considered for adoption and approval by the shareholders pursuant to the Employee Stock Purchase Plan Proposal; |
• | “New Freenome Equity Incentive Plan” are to Freenome, Inc. 2026 Equity Incentive Plan, to be considered for adoption and approval by the shareholders pursuant to the Equity Incentive Plan Proposal; |
• | “New Freenome Organizational Documents” are to, collectively, the New Freenome Charter and New Freenome Bylaws; |
• | “ordinary shares” or “PCSC Shares” are to the PCSC Class A Shares and the PCSC Class B Shares; |
• | “PCSC,” “we,” “us” or “our” are to Perceptive Capital Solutions Corp, a Cayman Islands exempted company, prior to the consummation of the Business Combination; |
• | “PCSC Board” are to PCSC’s board of directors; |
• | “PCSC Class A Shares” are to the Class A ordinary shares, par value $0.0001 per share, of PCSC, which will automatically convert, on a one-for-one basis, into shares of New Freenome Common Stock in connection with the Domestication; |
• | “PCSC Class B Shares” or “founder shares” are to the 2,156,250 Class B ordinary shares, par value $0.0001 per share, of PCSC outstanding as of the date of this proxy statement/prospectus that were initially issued to our Sponsor in a private placement prior to our initial public offering and of which 90,000 were transferred to Messrs. McKenna, Song and Waksal (30,000 PCSC Class B Shares each) in April 2024, and, in connection with the Domestication, the holders of the founder shares will elect to convert these PCSC Class B Shares, on a one-for-one basis, into PCSC Class A Shares; |
• | “PCSC Parties” are, collectively, PCSC and Merger Subs (and each, individually, a “PCSC Party”); |
• | “PCSC transfer agent” are to Continental, PCSC’s transfer agent; |
• | “Perceptive Advisors” are to Perceptive Advisors, LLC, an affiliate of our Sponsor; |
• | “Perceptive PIPE Investor” are to Perceptive Life Sciences Master Fund, Ltd., a Cayman Islands exempted company; |
• | “Perceptive Shareholders” are to the Sponsor and the Perceptive PIPE Investor; |
• | “PIPE Financing” are to the transactions contemplated by the Subscription Agreements, pursuant to which the PIPE Investors have collectively committed to subscribe for an aggregate of 24,000,000 shares of New Freenome Common Stock for an aggregate purchase price of $240.0 million to be consummated in connection with Closing; |
• | “PIPE Investors” are to certain qualified institutional buyers, institutional accredited investors, and other accredited investors, including, among others, the Perceptive PIPE Investors, as well as certain existing stockholders of Freenome; |
• | “private placement shares” are to the 286,250 PCSC Class A Shares sold to our Sponsor as part of the private placement by PCSC which closed on June 13, 2024; |
• | “pro forma” are to giving pro forma effect to the Business Combination, including the Mergers and the PIPE Financing; |
• | “Proposed Bylaws” are to the proposed bylaws of New Freenome to be effective upon the Domestication attached to this proxy statement/prospectus as Annex I; |
• | “Proposed Certificate of Incorporation” are to the proposed certificate of incorporation of New Freenome to be effective upon the Domestication attached to this proxy statement/prospectus as Annex H; |
• | “Proposed Governing Documents” are to the Proposed Certificate of Incorporation and the Proposed Bylaws; |
• | “public shareholders” are to holders of public shares, whether acquired in PCSC’s initial public offering or acquired in the secondary market; |
• | “public shares” are to the currently outstanding 8,911,250 PCSC Class A Shares, whether acquired in PCSC’s initial public offering or acquired in the secondary market; |
• | “redemption” are to each redemption of public shares for cash pursuant to the Existing Governing Documents; |
• | “SEC” are to the Securities and Exchange Commission; |
• | “Second Merger” are to the merger of Freenome, as the surviving entity of the First Merger, with and into Merger Sub II pursuant to the Business Combination Agreement, with Merger Sub II continuing as the surviving company of the Second Merger and, after giving effect to the Second Merger, Merger Sub II becoming a wholly-owned subsidiary of New Freenome; |
• | “Securities Act” are to the Securities Act of 1933, as amended; |
• | “Special Committee” means the special committee of the PCSC Board; |
• | “Sponsor” are to Perceptive Capital Solutions Holding, a Cayman Islands exempted company; |
• | “Subscription Agreements” are to the subscription agreements, entered into by PCSC and each of the PIPE Investors in connection with the PIPE Financing; |
• | “trust account” are to the trust account established at the consummation of PCSC’s initial public offering that holds the proceeds of the initial public offering and is maintained by Continental, acting as trustee; |
• | “Trust Agreement” means that certain Investment Management Trust Agreement, dated as of June 13, 2024, between PCSC and Continental, as trustee; and |
• | “U.S.” means the United States of America. |
• | our ability to complete the Business Combination with Freenome or, if we do not consummate such Business Combination, any other initial business combination; |
• | satisfaction or waiver of the conditions to the Business Combination including, among others: (i) the approval by our shareholders of each of the Condition Precedent Proposals being obtained; (ii) the applicable waiting period under the Hart-Scott-Rodino Act of 1976 (the “HSR Act”) relating to the Business Combination Agreement having expired or been terminated; (iii) PCSC having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) after giving effect to the transactions contemplated by the Business Combination Agreement and the PIPE Financing; (iv) the Aggregate Transaction Proceeds Condition; (v) the approval by Nasdaq of our initial listing application in connection with the Business Combination; and (vi) the consummation of the Domestication; |
• | the occurrence of any event, change or other circumstances, including the outcome of any legal proceedings that may be instituted against PCSC and Freenome following the announcement of the Business Combination Agreement and the transactions contemplated therein, that could give rise to the termination of the Business Combination Agreement; |
• | the growth rate and market opportunity of New Freenome; |
• | the ability to obtain and/or maintain the listing of the New Freenome Common Stock, and the potential liquidity and trading of such securities; |
• | the risk that the proposed Business Combination disrupts current plans and operations of Freenome as a result of the announcement and consummation of the proposed Business Combination; |
• | the ability to recognize the anticipated benefits of the proposed Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably and retain its key employees; |
• | costs related to the proposed Business Combination; |
• | changes in applicable laws or regulations; |
• | our ability to raise financing in the future; |
• | our success in retaining or recruiting, or changes required in, our officers, key employees or directors following the completion of the Business Combination; |
• | our officers and directors allocating their time to other businesses and potentially having conflicts of interest with our business or in approving the Business Combination; |
• | Freenome’s need to raise additional capital to fund its existing operations, develop its platform, commercialize new products or expand its operations; |
• | Freenome’s ability to support demand for its current and future products, including ensuring that it has adequate capacity to meet increased demand, or is able to successfully manage its anticipated growth; |
• | Freenome’s ability to attract and retain qualified personnel, manage its future growth effectively and execute its business strategy; |
• | Freenome’s ability to retain the services of its founder, Freenome’s Chief Executive Officer, or other members of Freenome’s senior management team; |
• | any Changes in funding for, or disruptions caused by global health concerns impacting, the FDA and other government agencies or notified bodies, which could hinder Freenome’s ability to hire and retain key leadership and other personnel, or otherwise prevent new medical device products from being developed, authorized or commercialized in a timely manner; |
• | Freenome’s financial performance, including the fact that Freenome has incurred significant net losses in each period since its inception and anticipates that it will continue to incur net losses for the coming years; and |
• | other factors detailed under the section entitled “Risk Factors.” |
Q: | Why am I receiving this proxy statement/prospectus? |
A: | PCSC shareholders are being asked to consider and vote upon, among other proposals, a proposal to approve and adopt the Business Combination Agreement and approve the transactions contemplated thereby, including the Business Combination. |
(a) | in connection with the Domestication, which is intended to occur at least one business day prior to the Closing Date, PCSC will de-register from the Register of Companies in the Cayman Islands and transfer by way of continuation from the Cayman Islands to Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the DGCL and Part 12 of the Companies Act (Revised) of the Cayman Islands, upon which PCSC will change its name to “Freenome, Inc.”; |
(b) | as part of the First Merger, Merger Sub I will merge with and into Freenome, with Freenome as the surviving company in the First Merger and, after giving effect to the First Merger, Freenome will be a wholly-owned subsidiary of PCSC, (i) the Freenome Common Shares issued and outstanding as of immediately prior to the Effective Time (including such shares issued upon the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time in accordance with the terms of the Business Combination Agreement, but excluding Freenome Common Shares held in treasury or by Freenome stockholders who have properly demanded appraisal of such Freenome Common Shares in accordance with Section 262 of the DGCL) will be automatically canceled and extinguished and converted into the right to receive a number of shares of New Freenome Common Stock equal to the Exchange Ratio; (ii) each Freenome Option, whether vested or unvested, will cease to represent the right to purchase Freenome Common Shares and will be canceled in exchange for a Rollover Option under the New Freenome Equity Incentive Plan, in an amount equal to the product (rounded down to the nearest whole number) of (x) the number of Freenome Common Shares subject to such Freenome Option immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such Freenome Option immediately prior to the Effective Time, divided by (ii) the Exchange Ratio, and generally subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome Option immediately prior to the Effective Time; and (iii) each Freenome RSU Award, whether vested or unvested, will cease to have any rights in respect of the Freenome Common Shares and will be canceled in exchange for a Rollover RSU Award that settles in a number of shares of New Freenome Common Stock (rounded down to the nearest whole share) in an amount and subject to such terms and conditions, in each case, as to be set forth on an allocation schedule, that will generally be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome RSU Award immediately prior to the Effective Time; and |
(c) | as soon as practicable following the Effective Time, but no later than one business day following the Effective Time, as part of the Second Merger, Freenome, as the surviving corporation of the First Merger, will merge with and into Merger Sub II, with Merger Sub II continuing as the surviving company in the Second Merger. See “Business Combination Proposal.” |
Q: | What proposals are shareholders of PCSC being asked to vote upon? |
A: | At the extraordinary general meeting, PCSC is asking holders of its ordinary shares to consider and vote upon thirteen (13) separate proposals: |
• | The Business Combination Proposal: a proposal to approve by ordinary resolution, the entry of PCSC into the Business Combination Agreement, dated December 5, 2025 (as it may be amended, supplemented, or otherwise modified from time to time), by and among PCSC, StarNet Merger Sub I, Corp., StarNet Merger Sub II, LLC, and Freenome Holdings, Inc. (in the form attached to the proxy statement/prospectus of the meeting as Annex A), the consummation of the transactions contemplated by the Business Combination Agreement and the performance by PCSC of its obligations thereunder thereby; |
• | The Domestication Proposal: a proposal to approve by special resolution of the holders of PCSC Class B Shares, that PCSC de-register from the Registrar of Companies in the Cayman Islands and transfer by way of continuation from the Cayman Islands to Delaware and domesticate as a Delaware corporation in accordance with Part 12 of the Companies Act (Revised) of the Cayman Islands and Section 388 of the DGCL and, immediately upon being de-registered in the Cayman Islands, PCSC be continued and domesticated as a corporation under the laws of the state of Delaware and, conditional upon, and with effect from, the registration of PCSC as a corporation in the State of Delaware, the name of PCSC be changed from “Perceptive Capital Solutions Corp” to “Freenome, Inc.”; |
• | The Governing Documents Proposal: a proposal to approve by special resolution of the holders of PCSC Class B Shares, that the amended and restated memorandum and articles of association of PCSC currently in effect be amended and restated by the deletion in their entirety and the substitution in their place of the Proposed Certificate of Incorporation and the Proposed Bylaws (in the form attached to the proxy statement/prospectus of the meeting as Annex H and Annex I, respectively); |
• | The Advisory Governing Documents Proposals: six separate proposals by ordinary resolutions on a non-binding and advisory basis only, that the following governance provisions contained in the Proposed Governing Documents be approved and adopted as follows: |
• | to amend the Existing Governing Documents to authorize the change in the authorized capital stock of PCSC from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares, and 1,000,000 preference shares, par value of $0.0001 per share, to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated preferred stock, par value $0.0001 per share; |
• | to amend the Existing Governing Documents to authorize adopting Delaware as the exclusive forum for certain stockholder litigation; |
• | to amend the Existing Governing Documents to approve provisions requiring the affirmative vote of at least (i) two-thirds of the outstanding shares of capital stock entitled to vote to adopt, amend or repeal the Proposed Bylaws and (ii) a majority of New Freenome’s then outstanding common stock (except where a lower threshold is provided by the DGCL) for amendments to the Proposed Certificate of Incorporation; |
• | to amend the Existing Governing Documents to approve provisions permitting the removal of a director only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, voting together as a single class; |
• | to amend the Existing Governing Documents to approve provisions requiring stockholders to take action at an annual or special meeting and prohibiting stockholder action by written consent in lieu of a meeting; and |
• | to amend the Existing Governing Documents to authorize (1) changing the corporate name from “Perceptive Capital Solutions Corp” to “Freenome, Inc.,” (2) making New Freenome’s corporate existence perpetual, and (3) removing certain provisions related to PCSC’s status as a blank check company that will no longer be applicable upon consummation of the Business Combination. |
• | The Nasdaq Proposal: a proposal to approve by ordinary resolution, that for the purposes of complying with the applicable provisions of Nasdaq Stock Exchange Listing Rule 5635(a), (b) and (d), the issuance or potential issuance of (i) shares of New Freenome Common Stock be approved to the shareholders of PCSC in the Domestication and stockholders of Freenome in the First Merger pursuant to the Business Combination Agreement, and (ii) shares of New Freenome Common Stock to the PIPE Investors in the PIPE Financing pursuant to the Subscription Agreements, and (iii) any other issuances of Freenome Common Stock and securities convertible into or exercisable for Freenome Common Stock pursuant to subscription, purchase or similar agreements PCSC has entered, or may enter, into prior to Closing, be approved in all respects; |
• | The Equity Incentive Plan Proposal: a proposal to approve by ordinary resolution, that the Freenome Holdings, Inc. 2026 Equity Incentive Plan, a copy of which is attached to the proxy statement/prospectus as Annex J, be adopted and approved; |
• | The Employee Stock Purchase Plan Proposal: a proposal to approve by ordinary resolution, that the Freenome Holdings, Inc. 2026 Employee Stock Purchase Plan, a copy of which is attached to the proxy statement/prospectus as Annex K, be adopted and approved; and |
• | The Adjournment Proposal: a proposal to approve by ordinary resolution, that the adjournment of the extraordinary general meeting to a later date or dates, if necessary or convenient (A) to the extent necessary to ensure that any required supplement or amendment to the proxy statement/prospectus is provided to PCSC shareholders (B) in order to solicit additional proxies from PCSC shareholders in favor of one or more of the proposals at the extraordinary general meeting or (C) if PCSC shareholders redeem an amount of the public shares such that the condition to consummation of the Business Combination that the aggregate cash proceeds to be received by PCSC from the trust account in connection with the Business Combination, together with aggregate gross proceeds from the PIPE Financing, equal no less than $250,000,000 after deducting PCSC’s unpaid expenses, liabilities, and any amounts paid to PCSC shareholders that exercise their redemption rights in connection with the Business Combination would not be satisfied, at the extraordinary general meeting be approved. For more information, please see “—Why is PCSC proposing the Adjournment Proposal.” |
Q: | Are the proposals conditioned on one another? |
A: | Yes, each of the Business Combination Proposal, the Domestication Proposal, the Governing Documents Proposals, the Nasdaq Proposal, the Equity Incentive Plan Proposal and the Employee Stock Purchase Plan Proposal is conditioned on the approval and adoption of each of the other Condition Precedent Proposals. Consummation of the Business Combination is not conditioned upon the approval of the Advisory Governing Documents Proposals or the Adjournment Proposal. Neither the Advisory Governing Documents Proposals nor the Adjournment Proposal is conditioned upon the approval of any other proposal. |
Q: | I am a holder of public shares. Why am I receiving this proxy statement/prospectus? |
A: | Upon consummation of the Business Combination, and without any action on the part of any party or any other person, each issued and outstanding PCSC Class A Share (excluding public shares validly submitted for redemption) will convert automatically by operation of law, on a one-for-one basis, into one share of New Freenome Common Stock. This proxy statement/prospectus includes important information about New Freenome and the business of New Freenome and its subsidiaries following consummation of the Business Combination. PCSC urges you to read the information contained in this proxy statement/prospectus carefully. |
Q: | Why is PCSC proposing the Business Combination? |
A: | PCSC is a blank check company incorporated on March 22, 2024 as a Cayman Islands exempted company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. PCSC has neither engaged in any operations nor generated any revenue to date. Based on PCSC’s business activities, it is a “shell company” as defined under the Exchange Act because it has no operations and nominal assets consisting almost entirely of cash. |
Q: | What are the reasons for the structure and timing of the Business Combination and the PIPE Financing? |
A: | PCSC is a blank check company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Following the completion of its initial public offering, at the direction of the PCSC Board, representatives of PCSC, including Messrs. Stone and Poukalov, and Dr. Hukkelhoven commenced an active, targeted search for potential business combination candidates, leveraging the Sponsor’s network of investment bankers, private equity firms and hedge funds (including Perceptive Advisors and its affiliates), consulting firms, legal and accounting firms, and numerous other business relationships, as well as the prior experience and network of PCSC’s officers and directors. During this targeted search, PCSC reviewed approximately 200 potential business combination targets and conducted varying levels of preliminary due diligence on each, and evaluated and analyzed each as a potential business combination target based on, among other things, publicly available information and other market research available to PCSC and its representatives and their existing knowledge of the potential targets as a result of their network and existing relationships. Between October 2024 and December 2024, PCSC submitted non-binding term sheets to two companies, neither of which progressed to a business combination. Thereafter, PCSC continued to assess other potential business combination targets. Through this process, and based on discussion with members of the PCSC Board, PCSC further refined its focus and determined to concentrate its near-term efforts on a smaller set of potential business combination targets, including Freenome, that PCSC believed were the most compelling opportunities relative to the others reviewed. |
Q: | Will PCSC and Freenome obtain new financing in connection with the Business Combination and are there any arrangements to help ensure that PCSC will have sufficient funds to consummate the Business Combination and that New Freenome will have sufficient funds to operate Freenome’s business following the Closing? |
A: | In connection with entering into the Business Combination Agreement, on December 5, 2025, PCSC entered into Subscription Agreements with the PIPE Investors. Pursuant to the Subscription Agreements, the PIPE Investors agreed to subscribe for and purchase, and PCSC agreed to issue and sell to the PIPE Investors, on the Closing Date immediately following the Closing, an aggregate of 24,000,000 shares of New Freenome Common Stock for a purchase price of $10.00 per share, and aggregate gross proceeds of $240.0 million. |
Q: | Why is PCSC proposing the Adjournment Proposal? |
A. | Holders of PCSC Shares are being asked to consider and vote upon the Adjournment Proposal to approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary or convenient (A) to the extent necessary to ensure that any required supplement or amendment to the proxy statement/prospectus is provided to PCSC shareholders (B) in order to solicit additional proxies from PCSC shareholders in favor of one or more of the proposals at the extraordinary general meeting, (C) if PCSC shareholders redeem an amount of the |
Q: | Will I have the opportunity to vote on the Domestication Proposal or the Governing Documents Proposal if I only hold PCSC Class A Shares? |
A: | No. Pursuant to the Existing Governing Documents, prior to the closing of an initial business combination only holders of PCSC Class B Shares may vote on the Domestication Proposal or the Governing Documents Proposal. The initial shareholders, being the Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal), hold all issued and outstanding PCSC Class B Shares. Holders of only PCSC Class A Shares are not entitled to vote on the Domestication Proposal or the Governing Documents Proposal. |
Q: | Why was the Special Committee formed? |
A: | An affiliate of PCSC and the Sponsor, the Perceptive PIPE Investor, was an existing investor in Freenome prior to and during the course of discussions between PCSC and Freenome with respect to the Business Combination. Dr. Ellen Hukkelhoven, an executive officer of the Perceptive PIPE Investor, is a director of Freenome. In light of potential conflicts of interest with respect to the Business Combination as a result of the Perceptive PIPE Investor’s pre-existing ownership interest in Freenome and the fact that Perceptive PIPE Investor has a designee serving as a director of Freenome (such conflicts are described more fully in the section entitled “—Interests of PCSC’s Directors and Executive Officers, Sponsor and Others in the Business Combination”), the PCSC Board formed the Special Committee, comprised of three independent and disinterested members of the PCSC Board, Mark C. McKenna, Kenneth Song M.D., and Harlan W. Waksal, M.D. PCSC Board delegated the Special Committee the power and authority to (i) consider, review and to evaluate the terms and conditions, and determine the advisability, of the Business Combination (and the proposed terms of any definitive agreement with respect to the Business Combination) and any alternatives thereto that the Special Committee deems appropriate, (ii) determine whether the Business Combination or any alternative thereto negotiated by the Special Committee is fair to, and in the best interests of, PCSC and PCSC shareholders as a whole, and (iii) with respect to any actions required to be taken by the full PCSC Board with respect to the Business Combination or any alternative thereto, recommend to the PCSC Board what action, if any, should be taken by the PCSC Board. Special Committee was empowered to retain legal counsel to advise it and assist it in connection with fulfilling its duties as delegated by the PCSC Board; retain such other advisors, consultants and agents, including, without limitation, investment bankers, as the Special Committee may deem necessary or appropriate to perform such services and render such opinions as may be necessary or appropriate in order for the Special Committee to discharge its duties; and enter into such contracts providing for the retention, compensation, reimbursement of expenses and indemnification of such legal counsel, investment bankers, consultants and agents as the Special Committee may in its sole discretion deem necessary or appropriate. The Special Committee engaged separate U.S. counsel, Ropes, and Cayman Islands counsel, Maples. The Special Committee also engaged Scalar to provide an opinion to the Special Committee as to the fairness, from a financial point of view, to PCSC and the PCSC Unaffiliated Shareholders (defined as the holders of PCSC Class A Shares other than (i) Freenome, (ii) the Sponsor, (iii) the Key Supporting Company Stockholders, (iv) holders of PCSC Class A Shares who elect to redeem their shares prior to or in connection with the Business Combination, and (v) the PIPE Investors) of the shares of New Freenome Common Stock to be paid by PCSC in the First Merger pursuant to the Business Combination Agreement. |
Q: | Did the PCSC Board or Special Committee obtain a third-party opinion in determining whether or not to proceed with the Business Combination? |
A. | Yes. On December 4, 2025, the Special Committee received an opinion from Scalar as to the fairness, from a financial point of view, to PCSC and the PCSC Unaffiliated Shareholders (defined as the holders of PCSC Class A Shares other than (i) Freenome, (ii) the Sponsor, (iii) the Key Supporting Company Stockholders, (iv) holders of PCSC Class A Shares who elect to redeem their shares prior to or in connection with the Business Combination, and (v) the PIPE Investors) of the shares of New Freenome Common Stock to be paid by PCSC in the First Merger pursuant to the Business Combination Agreement, which was based on and subject to the assumptions made, procedures followed, matters considered and limitations and qualifications on and scope of the review undertaken by Scalar, as set forth in such opinion, as more fully described in the subsection “Business Combination Proposal—Opinion of Scalar, LLC.” A copy of Scalar’s opinion is attached hereto as Annex L. |
Q: | What will Freenome’s equityholders receive in return for the Business Combination with PCSC? |
A: | As part of the First Merger, Merger Sub I will merge with and into Freenome, with Freenome as the surviving company in the First Merger and, after giving effect to the First Merger, Freenome will be a wholly-owned subsidiary of PCSC, (i) the Freenome Common Shares issued and outstanding as of immediately prior to the Effective Time (including such shares issued upon the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time in accordance with the terms of the Business Combination Agreement, but excluding Freenome Common Shares held in treasury or by Freenome stockholders who have properly demanded appraisal of such Freenome Common Shares in accordance with Section 262 of the DGCL) will be automatically canceled and extinguished and converted into the right to receive a number of shares of New Freenome Common Stock equal to the Exchange Ratio; (ii) each Freenome Option, whether vested or unvested, will cease to represent the right to purchase Freenome Common Shares and will be canceled in exchange for a Rollover Option under the New Freenome Equity Incentive Plan, in an amount equal to the product (rounded down to the nearest whole number) of (x) the number of Freenome Common Shares subject to such Freenome Option immediately prior to the Effective Time, multiplied by (y) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (i) the exercise price per share of such Freenome Option immediately prior to the Effective Time, divided by (ii) the Exchange Ratio, and generally subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome Option immediately prior to the Effective Time; and (iii) each Freenome RSU Award, whether vested or unvested, will cease to have any rights in respect of the Freenome Common Shares and will be canceled in exchange for a Rollover RSU Award that settles in a number of shares of New Freenome Common Stock (rounded down to the nearest whole share) in an amount and subject to such terms and conditions, in each case, as to be set forth on an allocation schedule, that will generally be subject to the same terms and conditions (including applicable vesting, expiration and forfeiture provisions) that applied to the corresponding Freenome RSU Award immediately prior to the Effective Time. |
Q: | How will New Freenome be managed following the Business Combination? |
A: | Following the Closing, it is expected that the current management of Freenome will become the management of New Freenome, and the size of the New Freenome Board will be increased to consist of nine directors, as discussed in greater detail in “Proposal No. 3—Governing Documents Proposal” and “Management of New Freenome following the Business Combination.” Under the terms of the Proposed Certificate of Incorporation, upon the effectiveness thereof, the New Freenome Board will be divided into three classes designated as Class I, Class II and Class III. Class I directors will initially serve for a term expiring at the first annual meeting of stockholders following the Closing. Class II and Class III directors will initially serve for a term expiring at the second and third annual meeting of New Freenome stockholders following the Closing, respectively. At each succeeding annual meeting of stockholders, directors will be elected for a full term of three years to succeed the directors of the class whose terms expire at such annual meeting of the stockholders. There will be no limit on the number of terms a director may serve on the New Freenome Board. |
Q: | What equity stake will current PCSC shareholders and current equityholders of Freenome hold in New Freenome immediately after the consummation of the Business Combination? |
A: | As of the date of this proxy statement/prospectus, there are 11,067,500 PCSC Shares issued and outstanding, of which 8,911,250 are PCSC Class A Shares and 2,156,250 are PCSC Class B Shares. |
* | Less than 1%. |
(1) | Amount comprises the unredeemed public shares in a variety of redemptions scenarios. This amount reflects the assumed redemption of 0 shares under the No Redemptions Scenario, 2,156,250 shares redeemed under the 25% Redemptions Scenario, 4,312,500 shares redeemed under the 50% Redemptions Scenario, and 6,568,122 shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(2) | Amount includes 2,066,250 PCSC Class B Shares held by the Sponsor, 286,250 private placement shares, which are PCSC Class A Shares, held by Sponsor, 5,500,000 shares purchased by the Perceptive PIPE Investor as part of the PIPE Financing, and 5,611,587 shares of New Freenome Common Stock issued as merger consideration. |
(3) | Amount includes 30,000 PCSC Class B Shares held by each of PCSC’s independent directors (Messrs. McKenna, Song and Waksal). |
(4) | Amount includes 71,089,352 shares of New Freenome Common Stock issued to Freenome stockholders less 5,611,587 and 12,778,058 shares that will be held by the Perceptive PIPE Investor and Roche, respectively, which are presented in the rows labeled “Sponsor and the Perceptive PIPE Investor” and “Roche.” The amounts in the table do not include the potentially dilutive shares that could be issued, specifically 8,252,587 Rollover Options issued to holders of Freenome Options (whether vested or unvested immediately prior to the Effective Time), 4,291,830 Rollover RSU Awards issued to holders of Freenome RSU Awards (whether vested or unvested immediately prior to the Effective Time) and 3,441,094 shares which would be issued upon Exact Sciences’ optional election to convert the Exact Sciences Note (assuming accrued interest through May 31, 2026). |
(5) | Amount includes the 18,500,000 shares of New Freenome Common Stock to be issued to the PIPE Investors, less the 5,500,000 shares to be purchased by the Perceptive PIPE Investor as part of the PIPE Financing (which are presented in the row labeled “Sponsor and the Perceptive PIPE Investor”). |
(6) | Includes 12,778,058 shares of New Freenome Common Stock to be issued as merger consideration and 6,420,139 shares of Freenome Common Stock issued upon conversion of the Roche Convertible Note (as defined in “Certain Relationships and Related Person Transactions—Freenome Agreements with Our Stockholders—Convertible Promissory Note with Roche”). The Roche Convertible Note (including the principal amount and accrued interest) will automatically convert into shares of New Freenome Common Stock at a conversion price of $12.00 in connection with the Closing. This amount assumes accrued interest through May 31, 2026. |
* | Less than 1%. |
(1) | Amount comprises the unredeemed public shares in a variety of redemptions scenarios. This amount reflects the assumed redemption of 0 shares under the No Redemptions Scenario, 2,156,250 shares redeemed under the 25% Redemptions Scenario, 4,312,500 shares redeemed under the 50% Redemptions Scenario, and 6,568,122 shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(2) | Amount includes 2,066,250 PCSC Class B Shares held by the Sponsor, 286,250 PCSC Class A Shares held by Sponsor, 5,500,000 shares purchased by the Perceptive PIPE Investor as part of the PIPE Financing, and 5,611,587 shares of New Freenome Common Stock issued as merger consideration. |
(3) | Amount includes 30,000 PCSC Class B Shares held by each of PCSC’s independent directors (Messrs. McKenna, Song and Waksal). |
(4) | Amount includes 71,089,352 shares of New Freenome Common Stock issued to Freenome stockholders less 5,611,587 and 12,778,058 shares that will be held by the Perceptive PIPE Investor and Roche, respectively, which are presented in the rows labeled “Sponsor and the Perceptive PIPE Investor” and “Roche.” |
(5) | Amount includes the 18,500,000 shares of New Freenome Common Stock to be issued to the PIPE Investors, less the 5,500,000 shares to be purchased by the Perceptive PIPE Investor as part of the PIPE Financing (which are presented in the row labeled “Sponsor and the Perceptive PIPE Investor”). |
(6) | Amount comprises the potentially dilutive shares that could be issued pursuant to 8,252,587 Rollover Options issued to holders of Freenome Options (whether vested or unvested immediately prior to the Effective Time) in accordance with the terms of the Business Combination Agreement. Does not include the Initial Equity Awards and Anti-Dilution Equity Awards. |
(7) | Amount comprises the potentially dilutive shares that could be issued pursuant to 4,291,830 Rollover RSU Awards issued to holders of Freenome RSU Awards (whether vested or unvested immediately prior to the Effective Time) in accordance with the terms of the Business Combination Agreement. Does not include the Initial Equity Awards and Anti-Dilution Equity Awards. |
(8) | Includes 12,778,058 shares of New Freenome Common Stock to be issued as merger consideration and 6,420,139 shares of Freenome Common Stock issued upon conversion of the Roche Convertible Note. The Roche Convertible Note (including the principal amount and accrued interest) will automatically convert into shares of New Freenome Common Stock at a conversion price of $12.00 in connection with the Closing. This amount assumes accrued interest through May 31, 2026. |
(9) | Includes 3,333,333 shares of New Freenome Common Stock which would be issued upon Exact Sciences’ optional election to convert the Exact Sciences Note. |
Q: | What is the effective purchase price attributed to the New Freenome Common Stock to be received by the public shareholders, the Sponsor, the Perceptive PIPE Investor, PCSC’s independent directors (Messrs. McKenna, Song and Waksal), and the Freenome Stockholders at Closing? |
A: | Pursuant to the Business Combination Agreement, public shareholders who do not redeem their public shares will receive one share of New Freenome Common Stock for each PCSC Class A Share held by them immediately prior to the Domestication. While PCSC cannot be certain of the price such public shareholders paid for their public shares, assuming they purchased their public shares for $10.00 per share, which was the price of the PCSC Class A Shares sold in PCSC’s initial public offering, the effective purchase price paid per share of Freenome Common Stock issued to each public shareholder at Closing would be $10.00. In connection with PCSC’s initial public offering, the Sponsor paid an aggregate of $25,000 for 2,156,250 PCSC Class B Shares, or approximately $0.01 per share. In connection with the Business Combination, the 2,066,250 PCSC Class B Shares held by the Sponsor and an additional aggregate of 90,000 PCSC Class B Shares held by PCSC’s independent directors (Messrs. McKenna, Song and Waksal) will be automatically converted on a one-for-one basis into PCSC Class A Shares immediately prior to the Domestication, which will then automatically convert at the effective time of the Domestication into an equal number of shares of New Freenome Common Stock, valued at $10.00 per share, which is the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement. The Sponsor also purchased 286,250 PCSC Class A Shares at a price of $10.00 per share in a private placement that occurred simultaneously with the closing of PCSC’s initial public offering; such shares will automatically convert at the effective time of the Domestication into an equal number of shares of New Freenome Common Stock valued at $10.00 per share, which is the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement. The Perceptive PIPE Investor will also receive an estimated 5,615,003 shares of New Freenome Common Stock in the Business Combination upon the exchange of Freenome capital stock held by the Perceptive PIPE Investor pursuant to the terms of the Business Combination Agreement, and the Freenome stockholders (excluding the Perceptive PIPE Investor) will receive an estimated 65,516,765 shares of New Freenome Common Stock in the Business Combination, excluding an estimated 6,491,941 shares of New Freenome Common Stock issuable upon the exercise of Rollover Options and 4,294,391 shares of New Freenome Common Stock issuable pursuant to Rollover RSU Awards, which is equal to $655.2 million divided by $10.00 per share, which is the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement. The PIPE Investors (which includes the Perceptive PIPE Investor) will purchase 24,000,000 shares of New Freenome Common Stock at a purchase price of $10.00 per share, which is equal to $240.0 million. As a result of the low price the Sponsor paid for the PCSC Class B Shares, the Sponsor may realize a positive rate of return on its investment in the PCSC Class B Shares even if the market price per share of New Freenome Common Stock is below $10.00 per share after Closing, in which case the public shareholders may experience a negative rate of return on their investment. Based on the closing price of $13.58 per |
Q: | Why is PCSC proposing the Domestication? |
A: | The PCSC Board believes that there are significant advantages to us that will arise as a result of a change of our domicile to Delaware. Further, the PCSC Board believes that any direct benefit that the DGCL provides to a corporation also indirectly benefits its stockholders, who are the owners of the corporation. The PCSC Board believes that there are several reasons why transfer by way of continuation to Delaware is in the best interests of PCSC and its shareholders, as a whole, including, (i) the prominence, predictability and flexibility of the DGCL, (ii) Delaware’s well-established principles of corporate governance and (iii) the increased ability for Delaware corporations to attract and retain qualified directors, each of the foregoing are discussed in greater detail in the section entitled “Domestication Proposal—Reasons for the Domestication.” |
Q: | What amendments will be made to the current constitutional documents of PCSC? |
A: | The consummation of the Business Combination is conditional, among other things, on the Domestication. Accordingly, in addition to voting on the Business Combination, PCSC’s shareholders also are being asked to consider and vote the Domestication Proposal and the Governing Documents Proposal, to replace PCSC’s Existing Governing Documents with the Proposed Governing Documents, which differ from the Existing Governing Documents in several material respects, as summarized in the table below. The approval of the Domestication Proposal and the Governing Documents Proposal each requires a special resolution of the holders of PCSC Class B Shares under Cayman Islands law, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of the issued and outstanding PCSC Class B Shares who, being present in person or represented by proxy and entitled to vote at the extraordinary general meeting, vote at the extraordinary general meeting. The holders of the PCSC Class A Shares will have no right to vote on the Domestication Proposal or the Governing Documents Proposal, in accordance with Article 34.2 of the Existing Governing Documents. |
Q: | How will the Domestication affect my PCSC Class A Shares? |
A: | The Domestication is intended to occur at least one business day prior to the Closing Date. In connection with the Domestication, (1)(a) immediately prior to the Domestication, holders of PCSC Class B Shares will elect to convert their PCSC Class B Shares, into PCSC Class A Shares, (b) immediately prior to the Domestication, PCSC will effect the PCSC Shareholder Redemptions, (c) and after effecting the PCSC Shareholder Redemptions, upon the Domestication, each issued and outstanding PCSC Class A Share will convert automatically by operation of law, on a one-for-one basis, into one share New Freenome Common Stock, and (2) upon the Domestication, the governing documents of PCSC will be replaced with the Proposed Governing Documents, being the Proposed Certificate of Incorporation and the Proposed Bylaws as described in this proxy statement/prospectus and attached as Annex H and Annex I, respectively, to this proxy statement/prospectus and PCSC’s name will change to “Freenome, Inc.” See “Domestication Proposal.” |
Q: | What are the U.S. federal income tax consequences of the Domestication? |
A: | As discussed more fully under “Material U.S. Federal Income Tax Considerations,” below, the Domestication generally should qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue Code of 1986 (the “Code”). In the case of a transaction, such as the Domestication, that qualifies as a reorganization within the meaning of Section 368(a)(1)(F) of the Code, U.S. Holders (as defined in “Material U.S. Federal Income Tax Considerations”) of Public Shares will be subject to Section 367(b) of the Code and, as a result: |
• | a U.S. Holder of Public Shares whose Public Shares have a fair market value of less than $50,000 on the date of the Domestication, and who on the date of the Domestication owns (actually and constructively) less than 10% of the total combined voting power of all classes of Public Shares entitled to vote and less than 10% of the total value of all classes of Public Shares, generally will not recognize any gain or loss and generally will not be required to include any part of PCSC’s earnings in income pursuant to the Domestication; |
• | a U.S. Holder of Public Shares whose Public Shares have a fair market value of $50,000 or more on the date of the Domestication, and who on the date of the Domestication owns (actually and constructively) less than 10% of the total combined voting power of all classes of Public Shares entitled to vote and less than 10% of the total value of all classes of Public Shares will generally recognize gain (but not loss) on the exchange of Public Shares for shares of New Freenome Common Stock pursuant to the Domestication. As an alternative to recognizing gain, such U.S. Holders may file an election to include in income as a dividend the “all earnings and profits amount” (as defined in Treasury Regulation Section 1.367(b)-2(d)) attributable to their Public Shares, provided certain other requirements are satisfied. PCSC does not expect to have significant cumulative earnings and profits on the date of the Domestication; and |
• | a U.S. Holder of Public Shares who on the date of the Domestication owns (actually and constructively) 10% or more of the total combined voting power of all classes of Public Shares entitled to vote or 10% or more of the total value of all classes of Public Shares will generally be required to include in income as a dividend the “all earnings and profits amount” (as defined in Treasury Regulation Section 1.367(b)-2(d)) attributable to its Public Shares. Any such U.S. Holder that is a corporation may, under certain circumstances, effectively be exempt from taxation on a portion or all of the deemed dividend pursuant to Section 245A of the Code. PCSC does not expect to have significant cumulative earnings and profits on the date of the Domestication. |
Q: | What are the U.S. federal income tax consequences of the Mergers? |
A: | As discussed more fully under “Material U.S. Federal Income Tax Considerations,” below, the Mergers, taken together, generally should qualify as a reorganization within the meaning of Section 368(a) of the Code. If the Mergers so qualify, a U.S. Holder (as defined under “Material U.S. Federal Income Tax Considerations”) of Freenome Common Stock, generally will not recognize gain or loss for U.S. federal income tax purposes upon the exchange of shares of Freenome Common Stock for shares of New Freenome Common Stock pursuant to the Mergers, except with respect to cash received instead of fractional shares of New Freenome Common Stock. For further information, see “--Tax Consequences of the Mergers to U.S. Holders of Freenome Common Stock.” |
Q: | What are the material U.S. federal income tax consequences of exercising my redemption rights? |
A: | The tax consequences of an exercise of redemption rights depend on your particular facts and circumstances. Because the Domestication will occur after the PCSC Shareholder Redemptions, U.S. Holders exercising redemption rights should not be subject to the potential tax consequences of Section 367(b) of the Code as a result of the Domestication. Please see the section entitled “Material U.S. Federal Income Tax Considerations—U.S. Holders—Tax Consequences to U.S. Holders That Elect to Exercise Redemption Rights.” We urge you to consult your tax advisors regarding the tax consequences of exercising your redemption rights. |
Q: | Do I have redemption rights and is there a limit on the number of shares I may redeem? |
A: | If you are a holder of public shares, you have the right to request that we redeem your public shares for cash provided that you follow the procedures and deadlines described elsewhere in this proxy statement/prospectus. Public shareholders may elect to redeem the public shares held by them regardless of if or how they vote in respect of the Business Combination Proposal. If you wish to exercise your redemption rights, please see the answer to the next question: “How do I exercise my redemption rights?” |
Q: | How do I exercise my redemption rights? |
A: | Pursuant to the Existing Governing Documents, a public shareholder may request that PCSC redeem its public shares for cash contemporaneously with any vote on a Business Combination. If the Business Combination is approved, PCSC will pay to the holders of any public shares that have been validly tendered or delivered for redemption, a pro rata portion of the aggregate amount then on deposit in the trust account, calculated as of two business days prior to the consummation of the Business Combination and including interest earned on the funds held in the Trust Account not previously released to PCSC for permitted withdrawals. As a holder of public shares, you will be entitled to receive cash for any public shares to be redeemed only if you: |
(i) | hold public shares; and |
(iii) | prior to 5:00 p.m., Eastern Time, on [•], 2026 (two business days prior to the initially scheduled vote at the extraordinary general meeting), (a) submit a written request to the PCSC transfer agent in which you (i) request that PCSC redeem all or a portion of your public shares for cash, and (ii) identify yourself as the beneficial holder of the public shares and provide your legal name, phone number and address; and (b) deliver your public shares to the PCSC transfer agent, physically or electronically through DTC. |
Q: | What interests do the Freenome directors and officers have in the Business Combination? |
A: | Freenome’s directors and officers have interests in the Business Combination that are different from, or in addition to, those of the PCSC shareholders generally. These interests include, among other things, the interests listed below: |
• | Dr. Hukkelhoven, an executive officer of the Perceptive PIPE Investor, is a director of Freenome. In light of her relationship with both Freenome and the Perceptive PIPE Investor, an affiliate of the Sponsor, and to avoid any potential conflicts of interest, Freenome formed the Freenome Strategic Transaction Committee. |
• | Upon the completion of the Business Combination, the following persons are expected to be appointed Executive Officers of New Freenome: Drs. Elliott and Lin and Messrs. Ennis and Le. For a description of these arrangements see “Management of New Freenome Following the Business Combination—Executive Officers.” |
• | In connection with the closing of the Business Combination, Elliott is expected to receive the Initial Equity Awards and Anti-Dilution Equity Awards. See “Executive Compensation—Employment Arrangements in Place Prior to the Business Combination for Named Executive Officers.” |
• | Certain of Freenome’s directors are holders of, and/or are affiliated with entities that are holders of, Freenome equity interests and in such capacity will be entitled to receive the shares of New Freenome Common Stock payable to all holders of such equity interests pursuant to the terms of the Business Combination Agreement. Additionally, certain of Freenome’s directors are affiliated with entities that are PIPE Investors. See “Certain Relationships and Related Person Transactions—Freenome” and “Beneficial Ownership of Securities.” |
Q: | What happens to the funds deposited in the trust account after consummation of the Business Combination? |
A: | Following the closing of our initial public offering, an amount equal to $86,250,000 of the net proceeds from our initial public offering and the sale of the private placement shares was placed in the trust account. As of December 31, 2025, cash and investments held in the trust account totaled approximately $91,872,418 (including approximately $5,622,418 of investment income) consisting of U.S. Treasury Bills with a maturity of 185 days or less. These funds will remain in the trust account, except for the withdrawal of interest to pay taxes, if any, until the earliest of (i) the completion of PCSC’s initial business combination, (ii) the redemption of any public shares properly tendered in connection with a shareholder vote to amend the Existing Governing Documents to modify the substance and timing of PCSC’s obligation to redeem 100% of the public shares if PCSC does not complete a business combination by June 13, 2026 (unless such date is extended in accordance with the Existing Governing Documents), or (iii) the redemption of all the public shares of PCSC is unable to complete a business combination by June 13, 2026 (unless such date is extended in accordance with the Existing Governing Documents), subject to applicable law or with respect to any other provision relating to the rights of holders of public shares of PCSC. |
Q: | What happens if a substantial number of the public shareholders vote in favor of the Business Combination Proposal and exercise their redemption rights? |
A: | Our public shareholders are not required to vote “FOR” the Business Combination in order to exercise their redemption rights. Accordingly, the Business Combination may be consummated even though the funds available from the trust account and the number of public shareholders are reduced as a result of redemptions by public shareholders. |
Q: | What conditions must be satisfied to complete the Business Combination? |
A: | The consummation of the Business Combination is conditioned upon, among other things, (i) the approval by PCSC’s shareholders of each of the Condition Precedent Proposals being obtained; (ii) the approval of the Business Combination Agreement and the transactions contemplated thereby by the Freenome stockholders; (iii) the expiration or termination of the applicable waiting period under the HSR Act, (iv) no legal restraint or prohibition issued by any governmental entity enjoining, prohibiting or prevent the consummation of the Business Combination being in effect, (v) the effectiveness of the registration statement of which this proxy statement/prospectus forms a part, (iv) the approval for listing of the New Freenome Common Stock (including, for the avoidance of doubt, the shares of New Freenome Common Stock to be issued pursuant to the First Merger) on Nasdaq; (vi) after giving effect to the Business Combination (including the PIPE Financing and any PCSC shareholder redemptions), PCSC having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended) immediately after the Effective Time, (v) the Aggregate Transaction Proceeds Condition being satisfied; and (vi) the consummation of the Domestication. Therefore, unless these conditions are waived by the applicable parties to the Business Combination Agreement, the Business Combination Agreement could terminate and the Business Combination may not be consummated. |
Q: | When do you expect the Business Combination to be completed? |
A: | It is currently expected that the Business Combination will be consummated in the second quarter of 2026. This date depends, among other things, on the approval of the proposals to be put to PCSC shareholders at the extraordinary general meeting. However, such extraordinary general meeting could be adjourned if the Adjournment Proposal is adopted by our shareholders at the extraordinary general meeting and we elect to adjourn the extraordinary general meeting to a later date or dates if necessary or convenient, (i) to the extent necessary to ensure that any required supplement or amendment to the accompanying proxy statement/prospectus is provided to PCSC shareholders (B) in order to solicit additional proxies from PCSC shareholders in favor of one or more of the Conditions Precedent Proposals at the extraordinary general meeting or (C) if PCSC shareholders redeem an amount of public shares such that the Aggregate Transaction Proceeds Condition would not be satisfied. For a description of the conditions for the completion of the Business Combination, see “Business Combination Proposal—Conditions to Closing of the Business Combination.” |
Q: | Following the Business Combination, will PCSC’s securities continue to trade on a stock exchange? |
A: | PCSC will effect the Domestication from the Cayman Islands to Delaware. In connection with the Domestication, (a) immediately prior to the Domestication, holders of PCSC Class B Shares will elect to convert their PCSC Class B Shares, into PCSC Class A Shares, (b) immediately prior to the Domestication, PCSC will effect the PCSC Shareholder Redemptions, (c) and after effecting the PCSC Shareholder Redemptions, upon the Domestication, each issued and outstanding PCSC Class A Share will convert automatically by operation of law, on a one-for-one basis, into one share New Freenome Common Stock. |
Q: | What underwriting and placement agency fees are payable in connection with the Business Combination? |
A: | Pursuant to the Underwriting Agreement, dated June 11, 2024 (the “Underwriting Agreement”), by and between PCSC and Jefferies LLC (“Jefferies”), Jefferies was paid an upfront cash underwriting discount of $0.20 per public share, or $1,725,000 in the aggregate, paid upon the closing of PCSC’s initial public offering (the “Upfront Discount”). In addition, Jefferies is entitled to a deferred fee of $0.40 per public share, or $3,450,000 in the aggregate (the “Deferred Discount”). The Deferred Discount will become payable from the amounts held in the trust account solely in the event that PCSC completes a business combination, subject to the terms of the Underwriting Agreement. |
(1) | Amount comprises the unredeemed public shares in a variety of redemptions scenarios. This amount reflects the assumed redemption of 0 shares under the No Redemptions Scenario, 2,156,250 shares under the 25% Redemptions Scenario, 4,312,500 shares redeemed under the 50% Redemptions Scenario, and 6,568,122 shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(2) | Represents the product of (i) the sum of unredeemed public shares and (ii) the assumed redemption price. Uses approximately $10.65 as the assumed redemption price for the public shares estimated using an assumed Closing Date of December 31, 2025. |
Q: | What happens if the Business Combination is not consummated? |
A: | PCSC will not complete the Domestication to Delaware unless all other conditions to the consummation of the Business Combination have been satisfied or waived by the parties in accordance with the terms of the Business Combination Agreement. If PCSC is not able to consummate the Business Combination with Freenome nor able to complete another business combination by June 13, 2026, in each case, as such date may be extended pursuant to our Existing Governing Documents, we will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest earned on the funds held in the trust account and not previously released for permitted withdrawals (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and the PCSC Board, liquidate and dissolve, subject in the case of clauses (ii) and (iii) to our obligations under Cayman Islands law to provide for claims of creditors and the requirements of other applicable law. The Existing Governing Documents provide that, if we wind up for any other reason prior to the consummation of our initial business combination, we will follow the foregoing procedures with respect to the liquidation of the trust account as promptly as reasonably possible but not more than ten business days thereafter, subject to applicable Cayman Islands law. |
Q: | Do I have appraisal rights or dissenter’s rights in connection with the proposed Business Combination and the proposed Domestication? |
A: | PCSC’s shareholders do not have appraisal rights in connection with the Business Combination or the Domestication under the DGCL. PCSC’s shareholders do not have dissenter’s rights in connection with the Business Combination or the Domestication under Cayman Islands law. |
Q: | What else do I need to do now? |
A: | We urge you to read this proxy statement/prospectus, including the Annexes and the documents referred to herein, carefully and in their entirety and to consider how the Business Combination will affect you as a shareholder. Our shareholders should then vote as soon as possible in accordance with the instructions provided in this proxy statement/prospectus and on the enclosed proxy card. |
Q: | How do I vote? |
A: | If you are a holder of record of PCSC Shares on the record date of the extraordinary general meeting, you may vote in person at the extraordinary general meeting by submitting a proxy for the extraordinary general meeting. You may submit your proxy by completing, signing, dating and returning the enclosed proxy card in the accompanying pre-addressed postage paid envelope. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or nominee, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the broker, bank or nominee with instructions on how to vote your shares or, if you wish to attend the extraordinary general meeting and vote in person, obtain a proxy from your broker, bank or nominee. |
• | You can vote by signing and returning the enclosed proxy card. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign, date and return the proxy card without indicating how you wish to vote, your shares will be voted as recommended by the PCSC Board “FOR” the Business Combination Proposal, “FOR” the Domestication Proposal (in the case of the holders of the PCSC Class B Shares), “FOR” the Governing Documents Proposal (in the case of the holders of the PCSC Class B Shares), “FOR” each of the Advisory Governing Documents Proposals, “FOR” the Nasdaq Proposal, “FOR” the Equity Incentive Plan Proposal, “FOR” the Employee Stock Purchase Plan Proposal and “FOR” the Adjournment Proposal, in each case, if presented at the extraordinary general meeting. Your proxy card must be received by PCSC not less than 48 hours before the scheduled time of the extraordinary general meeting or any adjournment thereof at which the person named in the proxy card proposes to vote. Proxy cards received after this time will not be counted. |
• | You can attend the extraordinary general meeting and vote in person. You will receive a ballot when you arrive. However, if your PCSC Shares are held in the name of your broker, bank or another nominee, you must get a valid legal proxy from the broker, bank or other nominee. That is the only way PCSC can be sure that the broker, bank or nominee has not already voted your PCSC Shares. |
• | You can vote electronically. You may attend, vote and examine the list of shareholders entitled to vote at the extraordinary general meeting by visiting [•] and entering the control number found on your proxy card. |
Q: | If my shares are held in “street name,” will my broker, bank or nominee automatically vote my shares for me? |
A: | No. If your shares are held in a stock brokerage account or by a bank or other nominee, you are considered the “beneficial holder” of the shares held for you in what is known as “street name.” If this is the case, this proxy statement/prospectus may have been forwarded to you by your brokerage firm, bank or other nominee, or its agent. As the beneficial holder, you have the right to direct your broker, bank or other nominee as to how to vote your shares. If you do not provide voting instructions to your broker on a particular proposal on which your broker does not have discretionary authority to vote, your shares will not be voted on that proposal. This is called a “broker non-vote.” Abstentions and broker non-votes, while considered present for the purposes of establishing a quorum, will not count as votes cast at the extraordinary general meeting, and otherwise will have no effect on a particular proposal. If you decide to vote, you should provide instructions to your broker, bank or other nominee on how to vote in accordance with the information and procedures provided to you by your broker, bank or other nominee. |
Q: | How has the announcement of the Business Combination affected the trading price of the public shares? |
A: | On December 4, 2025, the last full trading day before the public announcement of the Business Combination, public shares closed at $10.70 per share. On January 6, 2026, a recent practicable date prior to the date of this proxy statement/prospectus, public shares closed at $13.58 per share. |
Q: | When and where will the extraordinary general meeting be held? |
A: | The extraordinary general meeting will be held at [•] a.m., Eastern Time, on [•], 2026, at the offices of Cooley LLP located at 55 Hudson Yards, New York, New York 10001, and via a virtual meeting, or at such other time, on such other date and at such other place to which the meeting may be adjourned. |
Q: | How do I attend the virtual extraordinary general meeting? |
A: | If you are a registered shareholder, you will receive a proxy card from PCSC’s transfer agent. The form contains instructions on how to attend the virtual extraordinary general meeting including the URL address, along with your control number. You will need your control number for access. If you do not have your control number, contact PCSC’s transfer agent at 917-262-2373, or emailproxy@continentalstock.com. |
Q: | Who is entitled to vote at the extraordinary general meeting? |
A: | PCSC has fixed [•], 2026 as the record date for the extraordinary general meeting. If you were a shareholder of PCSC at the close of business on the record date, you are entitled to vote on matters that come before the extraordinary general meeting. However, a shareholder may only vote his or her shares if he or she is present in person or is represented by proxy at the extraordinary general meeting. |
Q: | How many votes do I have? |
A: | PCSC shareholders are entitled to one vote at the extraordinary general meeting for each PCSC Share held of record as of the record date at the extraordinary general meeting. As of the close of business on the record date for the extraordinary general meeting, there were 11,067,500 PCSC Shares issued and outstanding, of which 8,625,000 were public shares. |
Q: | What constitutes a quorum? |
A: | A quorum of PCSC shareholders is necessary to hold a valid meeting. A quorum will be present at the extraordinary general meeting if one or more shareholders who together hold not less than one-third of the issued and outstanding PCSC Shares entitled to vote at the extraordinary general meeting are represented in person or by proxy at the extraordinary general meeting. As of the record date for the extraordinary general meeting, 3,689,167 PCSC Shares would be required to achieve a quorum at the extraordinary general meeting. As of the record date, the initial shareholders owned of record an aggregate of 2,442,500 PCSC Shares, representing approximately 22.1% of the issued and outstanding PCSC Shares. Therefore, an additional 1,246,667 public shares are required to establish a quorum. |
Q: | What vote is required to approve each proposal at the extraordinary general meeting? |
A: | The following votes are required for each proposal at the extraordinary general meeting: |
(i) | Business Combination Proposal: The approval of the Business Combination Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
(ii) | Domestication Proposal: The approval of the Domestication Proposal requires a special resolution of the holders of PCSC Class B Shares under Cayman Islands law, being the affirmative vote of at least two-thirds of the holders of issued and outstanding PCSC Class B Shares who, being present in person or represented by proxy and entitled to vote at the extraordinary general meeting, vote at the extraordinary general meeting. The holders of the PCSC Class A Shares will have no right to vote on the Domestication Proposal, in accordance with Article 34.2 of the Existing Governing Documents. |
(iii) | Governing Documents Proposal: The approval of the Governing Documents Proposal requires a special resolution of the holders of PCSC Class B Shares under Cayman Islands law, being the affirmative vote of at least two-thirds of the holders of issued and outstanding PCSC Class B Shares who, being present in person or represented by proxy and entitled to vote at the extraordinary general meeting, vote at the extraordinary general meeting. The holders of the PCSC Class A Shares will have no right to vote on the Governing Documents Proposal, in accordance with Article 34.2 of the Existing Governing Documents. |
(iv) | Advisory Governing Documents Proposals: The separate approval of each of the six Advisory Governing Documents Proposals requires an ordinary resolution under Cayman Islands law, on a non-binding and advisory basis only, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. These six proposals are being presented separately in accordance with SEC guidance to give shareholders the opportunity to present their separate views on important corporate governance provisions and will be voted upon on a non-binding advisory basis. This separate vote is not otherwise required by Cayman or Delaware law, but pursuant to SEC guidance, PCSC is required to submit these provisions to its shareholders separately for approval. The shareholder votes regarding these proposals are advisory in nature, and are not binding on PCSC, the PCSC Board, Freenome or the New Freenome Board. Furthermore, the Business Combination is not conditioned on the separate approval of the Advisory Governing Documents Proposals (separate and apart from the approval of the Governing Documents Proposal). Accordingly, regardless of the outcome of the non-binding advisory vote on these proposals, PCSC intends that the Proposed Governing Documents will take effect from the registration of PCSC in the State of Delaware as a corporation under the laws of the State of Delaware, assuming approval of the Business Combination Proposal and the Governing Documents Proposal. |
(v) | Nasdaq Proposal: The approval of the Nasdaq Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
(vi) | Equity Incentive Plan Proposal: The approval of the Equity Incentive Plan Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
(vii) | Employee Stock Purchase Plan Proposal: The approval of the Employee Stock Purchase Plan Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
(viii) | Adjournment Proposal: The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
Q: | What are the recommendations of the PCSC Board? |
A: | The PCSC Board believes that the Business Combination Proposal and the other proposals to be presented at the extraordinary general meeting are in the best interest of PCSC and its shareholders, as a whole, and unanimously recommends that its shareholders vote “FOR” the Business Combination Proposal, “FOR” the Domestication Proposal (in the case of the holders of the PCSC Class B Shares), “FOR” the Governing Documents Proposals (in the case of the holders of the PCSC Class B Shares), “FOR” each of the Advisory Governing Documents Proposals, “FOR” the Nasdaq Proposal, “FOR” the Equity Incentive Plan Proposal, “FOR” the Employee Stock Purchase Plan Proposal and “FOR” the Adjournment Proposal, in each case, if presented to the extraordinary general meeting. |
Q: | How do the Sponsor and the other initial shareholders intend to vote their shares? |
A: | The initial shareholders, being the Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal), have agreed to vote the PCSC Shares owned by them in favor of all the proposals being presented at the extraordinary general meeting. As of the date of this proxy statement/prospectus, our initial shareholders own approximately 22.1% of the issued and outstanding ordinary shares. As of the record date of the extraordinary general meeting, there were 8,911,250 PCSC Shares outstanding. |
Q: | May the Sponsor and the other initial shareholders purchase public shares prior to the extraordinary general meeting? |
Q: | Who is the Sponsor? |
A. | Our Sponsor, Perceptive Capital Solutions Holdings, is a Cayman Islands exempted company, which was formed to invest in PCSC. The Sponsor currently owns 2,066,250 PCSC Class B Shares and 286,250 private placement shares, which are PCSC Class A Shares. Although our Sponsor is permitted to undertake any activities permitted under the Cayman Companies Act and other applicable law, our Sponsor’s business is focused on investing in PCSC. |
Q: | What interests do the Sponsor, the Perceptive PIPE Investor, and PCSC’s officers and directors have in the Business Combination? |
A: | When you consider the recommendation of the PCSC Board in favor of approval of the Business Combination Proposal, you should keep in mind that the Sponsor, the Perceptive PIPE Investor, and PCSC’s officers and directors have interests in the Business Combination that are different from or in addition to (and which may conflict with) the interests of unaffiliated PCSC shareholders. Further, PCSC’s officers and directors have additional fiduciary or contractual obligations to other entities pursuant to which such officer or director is or will be required to present a business combination opportunity to such entity, which are set forth in more detail in the section titled “Information About PCSC — Conflicts of Interest.” We believe there were no such opportunities that were not presented as a result of the existing fiduciary or contractual obligations of our officers and directors to other entities. The PCSC Board was aware of and considered these interests, among other matters, in evaluating and negotiating the Business Combination and Business |
• | the fact that the Sponsor invested in PCSC an aggregate of $2,887,500, comprised of the $25,000 purchase price for 2,156,250 PCSC Class B Shares, or approximately $0.01 per share, and the $2,862,500 purchase price for 286,250 private placement shares at a purchase price of $10.00 per share. Subsequent to the initial purchase of the PCSC Class B Shares by the Sponsor, the Sponsor transferred 30,000 PCSC Class B Shares, to each of PCSC’s three independent directors, being Mark C. McKenna, Kenneth Song M.D., and Harlan W. Waksal, M.D. Such shares will have a significantly higher value at the time of the Business Combination or be worthless if the Business Combination is not consummated and PCSC is liquidated. Assuming a trading price of $13.58 per share of New Freenome Common Stock (based upon the closing price of the PCSC Class A Shares on the Nasdaq Capital Market on January 6, 2026), such 2,442,500 shares of New Freenome Common Stock that are expected to be issued to our initial shareholders at Closing would have an implied aggregate market value of $33.2 million (based upon the closing price of the PCSC Class A Shares on January 6, 2026). However, given that such shares of New Freenome Common Stock will be subject to certain restrictions, including those described elsewhere in this proxy statement/prospectus, PCSC believes such shares of New Freenome Common Stock have less value. Even if the trading price of the New Freenome Common Stock were as low as approximately $1.19 per share, the aggregate market value of such shares of New Freenome Common Stock held by the initial shareholders would be approximately equal to the initial investment in PCSC by the initial shareholders. Therefore, the Sponsor and its affiliates could earn a positive rate of return on their investments, even if other PCSC shareholders experience a negative rate of return in New Freenome and PCSC’s directors and officers and the Sponsor may have a conflict of interest in determining whether a particular business is an appropriate business with which to effectuate an initial business combination; |
• | the fact that, as a result of the low purchase price paid for the PCSC Class B Shares, if the Business Combination is completed, the Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal) are likely to be able to make a substantial profit on their investment in PCSC even at a time when the New Freenome Common Stock has lost significant value. Accordingly, the economic interests of the Sponsor and PCSC’s independent directors diverge from the economic interests of public shareholders because the Sponsor and PCSC’s independent directors will realize a gain on its investment from the completion of any business combination while public shareholders will realize a gain only if the post-closing trading price exceeds $10.00 per share; |
• | the fact that the initial shareholders have agreed not to redeem any PCSC Shares held by them in connection with a shareholder vote to approve a Business Combination; |
• | the fact that the initial shareholders have agreed to vote any PCSC Shares owned by them in favor of the Business Combination Proposal; |
• | the fact that the initial shareholders have agreed to waive their rights to liquidating distributions from the trust account with respect to any PCSC Shares (other than public shares subsequently acquired by them) held by them if the Business Combination is not approved and PCSC fails to complete the Business Combination by June 13, 2026; |
• | the fact that the Business Combination Agreement provides for the continued indemnification of PCSC’s existing directors and officers and requires PCSC to purchase, or cause to be purchased, at or prior to the Effective Time, and New Freenome to maintain in effect for a period of six years after the Effective Time, a “tail” policy providing directors’ and officers’ liability insurance coverage for certain PCSC directors and officers after the Business Combination; |
• | the fact that the Sponsor and PCSC’s officers and directors will lose their entire investment in PCSC and will not be reimbursed for any loans extended, fees due or out-of-pocket expenses incurred on PCSC’s behalf related to identifying, investigating, negotiating and completing an initial business combination if the Business Combination is not consummated by June 13, 2026. As of the date of this proxy statement/prospectus, PCSC does not owe the Sponsor any outstanding sums pursuant to any working capital loans, promissory notes, the existing administrative services and indemnification agreement between PCSC and the Sponsor, or otherwise; |
• | the fact that, in connection with the Closing and immediately prior to the Effective Time, the Sponsor may elect to contribute Working Capital Loans, of up to $3,000,000, to PCSC in exchange for PCSC Class A Shares (the “Working Capital Shares”), which are convertible at the option of the Sponsor into shares of New Freenome Common Stock, at a conversion price of $10.00 per share; |
• | the fact that if the trust account is liquidated, including in the event PCSC is unable to complete an initial business combination within the required time period, the Sponsor has agreed to indemnify PCSC to ensure that the proceeds in the trust account are not reduced below $10.00 per public share, or such lesser per public share amount as is in the trust account, by the claims of prospective target businesses with which PCSC has entered into an acquisition agreement or claims of any third party for services rendered or products sold to PCSC, but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account; |
• | the fact that if the Business Combination or another business combination is not consummated by June 13, 2026, PCSC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding PCSC Class A Shares for cash and, subject to the approval of its remaining shareholders and the PCSC Board, liquidating and dissolving; |
• | the fact that the Investor Rights Agreement was entered into with the initial shareholders, the Perceptive PIPE Investor and certain Freenome stockholders, which, among other things, (a) gives the initial shareholders, the Perceptive PIPE Investor and certain Freenome stockholders certain registration rights, including the right to have the offer and sale of their shares of New Freenome Common Stock registered on a resale registration statement to be filed by New Freenome shortly after the consummation of the Business Combination; |
• | the fact that the Sponsor Letter Agreement was executed with the initial shareholders, pursuant to which the initial shareholders, among other things, waive all adjustments to the conversion ratio set forth in the Existing Governing Documents with respect to the PCSC Class B Shares, and agree to be bound by certain transfer restrictions with respect to PCSC Shares prior to the consummation of the Business Combination, in each case subject to the terms and conditions set forth therein. No consideration has been or will be paid to PCSC, Freenome, Sponsor or each of PCSC’s independent directors in connection with the entry into the Sponsor Letter Agreement; |
• | the fact that the Perceptive PIPE Investor has entered into a subscription agreement to purchase 5,500,000 shares in the PIPE Financing, subject to the terms and conditions set forth in the Subscription Agreement executed by the Perceptive PIPE Investor. For more information on the assumptions underlying the number of shares described in the foregoing as being issuable on the Closing Date, please see “Risk Factors—Risks Related to the Business Combination and PCSC—PCSC shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination. Having a minority share position may reduce the influence that PCSC’s current shareholders have on the management of New Freenome”; |
• | the fact that the Perceptive PIPE Investor, which is an affiliate of the Sponsor and certain of PCSC’s directors and officers, has a fully diluted equity ownership stake in Freenome of 6.85% (representing shares of Series B, C, D and F Freenome Preferred Stock), which, assuming a no redemption scenario, will convert into 5,615,003 shares of New Freenome Common Stock, or an approximately 4.99% equity stake in New Freenome in connection with the Business Combination. PCSC estimates that, at the Closing, if unrestricted and freely tradeable, such shares would be valued at approximately $56.2 million, based on the $13.58 closing price of the PCSC Class A Shares on January 6, 2026. However, given that such shares of New Freenome Common Stock will be subject to certain restrictions, including those described elsewhere in this proxy statement/prospectus, PCSC believes such shares have less value. See the assumptions underlying such ownership percentages described in the section entitled “Beneficial Ownership of Securities” and more information to consider under “Risk Factors—Risks Related to the Business Combination and PCSC—PCSC shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination. Having a minority share position may reduce the influence that PCSC’s current shareholders have on the management of New Freenome.” Actual number of shares of New Freenome Common Stock issuable on the Closing Date will be determined pursuant to the terms of the Subscription Agreements and the Business Combination Agreement, as applicable; |
• | the fact that Dr. Hukkelhoven, an executive officer of the Perceptive PIPE Investor, is a director of Freenome; |
• | the fact that Joseph Edelman, Adam Stone, Michael Altman and Sam Cohn are affiliated with the Perceptive PIPE Investor; |
• | the right of the Sponsor and the Perceptive PIPE Investor to hold shares of New Freenome Common Stock following the Business Combination, subject to the terms and conditions of the lock-up restrictions; and |
• | the fact that PCSC may be entitled to distribute or pay over funds held by PCSC outside the Trust Account to the Sponsor or any of its Affiliates prior to the Closing. |
Q: | What happens if I sell my PCSC Shares before the extraordinary general meeting? |
A: | The record date for the extraordinary general meeting is earlier than the date of the extraordinary general meeting and earlier than the date that the Business Combination is expected to be completed. If you transfer your public shares after the applicable record date for the extraordinary general meeting, but before the extraordinary general meeting, unless you grant a proxy to the transferee, you will retain your right to vote at the extraordinary general meeting. |
Q: | May I change my vote after I have mailed my signed proxy card? |
A: | If you are a record owner of your shares and you give a proxy, you may change or revoke it at any time before it is exercised by doing any one of the following: |
• | you may send another proxy card with a later date, provided that it is received by PCSC not less than 48 hours before the scheduled time of the extraordinary general meeting or any adjournment thereof at which the person named in the proxy card proposes to vote; |
• | you may notify PCSC’s secretary by writing to Perceptive Capital Solutions Corp, 51 Astor Place, 10th Floor, New York, New York 10003, before the extraordinary general meeting that you have revoked your proxy; or |
• | you may attend the extraordinary general meeting, revoke your proxy, and vote in person, as indicated above. |
Q: | What happens if I fail to take any action with respect to the extraordinary general meeting? |
A: | If you fail to vote with respect to the extraordinary general meeting and the Business Combination Proposal and each other Condition Precedent Proposal is approved by shareholders and the Business Combination is consummated, you will become a stockholder of New Freenome. If you fail to vote with respect to the extraordinary general meeting and the Business Combination Proposal or such other Condition Precedent Proposal is not approved, you will remain a shareholder of PCSC. However, if you fail to vote with respect to the extraordinary general meeting, you will nonetheless be able to elect to redeem your public shares in connection with the Business Combination. |
Q: | What should I do if I receive more than one set of voting materials? |
A: | Shareholders may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast a vote with respect to all of your PCSC Shares. |
Q: | Who will solicit and pay the cost of soliciting proxies for the extraordinary general meeting? |
A: | PCSC will pay the cost of soliciting proxies for the extraordinary general meeting. PCSC has engaged Morrow Sodali LLC (“Morrow”) as proxy solicitor to assist in the solicitation of proxies for the extraordinary general |
Q: | Where can I find the voting results of the extraordinary general meeting? |
A: | The preliminary voting results will be announced at the extraordinary general meeting. PCSC will publish final voting results of the extraordinary general meeting in a Current Report on Form 8-K within four business days after the extraordinary general meeting. |
Q: | Who can help answer my questions? |
A: | If you have questions about the Business Combination or if you need additional copies of the proxy statement/prospectus or the enclosed proxy card you should contact: |
• | the Domestication is intended to occur at least one business day prior to the Closing Date. In connection with the Domestication, (1)(a) immediately prior to the Domestication, the holders of each issued and outstanding PCSC Class B Share will elect to convert their PCSC Class B Shares into PCSC Class A Shares, (b) immediately prior to the Domestication, PCSC will effect the redemption of the public shares initially issued in PCSC’s initial public offering that are validly submitted for redemption and not withdrawn, (c) and after effecting the PCSC Shareholder Redemptions, upon the Domestication, each issued and outstanding PCSC Class A Share will convert automatically by operation of law, on a one-for-one basis, into one share of New Freenome Common Stock, and (2) upon the Domestication, the governing documents of PCSC will become the certificate of incorporation and the bylaws as described in this proxy statement/prospectus and attached as Annex H and Annex I, and PCSC’s name will change to “Freenome, Inc.”; and |
• | at the Effective Time, (i) the Freenome Common Shares issued and outstanding as of immediately prior to the Effective Time (including such shares issued upon the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time in accordance with the terms of the Business Combination Agreement, but excluding Freenome Common Shares held in treasury or by Freenome |


+ | Includes the Perceptive PIPE Investor. |
* | The Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal). |
** | Previously Perceptive Capital Solutions Corp before the Domestication. |
Sources | Uses | ||||||||
Cash in Trust Account(1) | 91.9 | Cash to Balance Sheet | 317.2 | ||||||
Marketable Securities of Freenome | 138.1 | Marketable securities to Balance Sheet | 138.1 | ||||||
Existing Cash Balances, as of December 31, 2025 | 79.4 | Redemption of PCSC Class A Shares held by public shareholders(2) | 70.0 | ||||||
Cash Proceeds from the PIPE Financing | 240.0 | Estimated Unpaid Transaction Expenses, as of December 31, 2025 | 24.1 | ||||||
Total Sources | 549.4 | Total Uses | 549.4 | ||||||
(1) | Reflects the amount in the trust account as of December 31, 2025. |
(2) | Assumes a redemption price of $10.65 per share, based on the amount in the trust account as of December 31, 2025. |
* | Less than 1%. |
(1) | Amount comprises the unredeemed public shares in a variety of redemptions scenarios. This amount reflects the assumed redemption of 0 shares under the No Redemptions Scenario, 2,156,250 shares redeemed under the 25% Redemptions Scenario, 4,312,500 shares redeemed under the 50% Redemptions Scenario, and 6,568,122 shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(2) | Amount includes 2,066,250 PCSC Class B Shares held by the Sponsor, 286,250 private placement shares, which are PCSC Class A Shares, held by Sponsor, 5,500,000 shares purchased by the Perceptive PIPE Investor as part of the PIPE Financing, and 5,611,587 shares of New Freenome Common Stock to be issued as merger consideration. |
(3) | Amount includes 30,000 PCSC Class B Shares held by each of PCSC’s independent directors (Messrs. McKenna, Song and Waksal). |
(4) | Amount includes 71,089,352 shares of New Freenome Common Stock issued to Freenome stockholders less 5,611,587 and 12,778,058 shares that will be held by the Perceptive PIPE Investor and Roche, respectively, which are presented in the rows labeled “Sponsor and the Perceptive PIPE Investor” and “Roche.” The amounts in the table do not include the potentially dilutive shares that could be issued, specifically 8,252,587 Rollover Options issued to holders of Freenome Options (whether vested or unvested immediately prior to the Effective Time), 4,291,830 Rollover RSU Awards issued to holders of Freenome RSU Awards (whether vested or unvested immediately prior to the Effective Time) and 3,441,094 shares which would be issued upon Exact Sciences’ optional election to convert the Exact Sciences Note (assuming accrued interest through May 31, 2026). |
(5) | Amount includes the 18,500,000 shares of New Freenome Common Stock to be issued to the PIPE Investors, less the 5,500,000 shares to be purchased by the Perceptive PIPE Investor as part of the PIPE Financing (which are presented in the row labeled “Sponsor and the Perceptive PIPE Investor”). |
(6) | Includes 12,778,058 shares of New Freenome Common Stock to be issued as merger consideration and 6,420,139 shares of Freenome Common Stock issued upon conversion of the Roche Convertible Note. The Roche Convertible Note (including the principal amount and accrued interest) will automatically convert into shares of New Freenome Common Stock at a conversion price of $12.00 in connection with the Closing. This amount assumes accrued interest through May 31, 2026. |
* | Less than 1%. |
(1) | Amount comprises the unredeemed public shares in a variety of redemptions scenarios. This amount reflects the assumed redemption of 0 shares under the No Redemptions Scenario, 2,156,250 shares redeemed under the 25% Redemptions Scenario, 4,312,500 shares redeemed under the 50% Redemptions Scenario, and 6,568,122 shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(2) | Amount includes 2,066,250 PCSC Class B Shares held by the Sponsor, 286,250 PCSC Class A Shares held by Sponsor, 5,500,000 shares purchased by the Perceptive PIPE Investor as part of the PIPE Financing, and 5,611,587 shares of New Freenome Common Stock to be issued as merger consideration. |
(3) | Amount includes 30,000 PCSC Class B Shares held by each of PCSC’s independent directors (Messrs. McKenna, Song and Waksal). |
(4) | Amount includes 71,089,352 shares of New Freenome Common Stock issued to Freenome stockholders less 5,611,587 and 12,778,058 shares that will be held by the Perceptive PIPE Investor and Roche, respectively, which are presented in the rows labeled “Sponsor and the Perceptive PIPE Investor” And “Roche.” |
(5) | Amount includes the 18,500,000 shares of New Freenome Common Stock to be issued to the PIPE Investors, less the 5,500,000 shares to be purchased by the Perceptive PIPE Investor as part of the PIPE Financing (which are presented in the row labeled “Sponsor and the Perceptive PIPE Investor”). |
(6) | Amount comprises the potentially dilutive shares that could be issued pursuant to 8,252,587 Rollover Options issued to holders of Freenome Options (whether vested or unvested immediately prior to the Effective Time) in accordance with the terms of the Business Combination Agreement. Does not include shares the Initial Equity Awards and Anti-Dilution Equity Awards. |
(7) | Amount comprises the potentially dilutive shares that could be issued pursuant to 4,291,830 Rollover RSU Awards issued to holders of Freenome RSU Awards (whether vested or unvested immediately prior to the Effective Time) in accordance with the terms of the Business Combination Agreement. Does not include shares the Initial Equity Awards and Anti-Dilution Equity Awards. |
(8) | Includes 12,778,058 shares of New Freenome Common Stock to be issued as Mergers Consideration and 6,420,139 shares of Freenome Common Stock issued upon conversion of the Roche Convertible Note. The Roche Convertible Note (including the principal amount and accrued interest) will automatically convert into shares of New Freenome Common Stock at a conversion price of $12.00 in connection with the Closing. This amount assumes accrued interest through May 31, 2026. |
(9) | Includes 3,333,333 shares of New Freenome Common Stock which would be issued upon Exact Sciences’ optional election to convert the Exact Sciences Note. |
Securities to be Received | Other Compensation | |||||
The Sponsor | Assuming the Aggregate Transaction Proceeds Condition Redemptions Scenario: (i) 2,066,250 shares of New Freenome Common Stock upon the exchange of 2,066,250 PCSC Class B Shares in the Domestication, which were initially purchased prior to PCSC’s initial public | Reimbursement for Working Capital Loans to PCSC. To date, PCSC has no outstanding borrowings under Working Capital Loans. $15,000 per month through the Closing for office space, secretarial | ||||
• | the Business Combination Proposal; |
• | the Domestication Proposal; |
• | the Governing Documents Proposal; |
• | the Advisory Governing Documents Proposals; |
• | the Nasdaq Proposal; |
• | the Equity Incentive Plan Proposal; |
• | the Employee Stock Purchase Plan Proposal; and |
• | the Adjournment Proposal (if presented). |
• | Business Combination Proposal: The approval of the Business Combination Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
• | Domestication Proposal: The approval of the Domestication Proposal requires a special resolution of the holders of PCSC Class B Shares, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of issued and outstanding PCSC Class B Shares who, being present in person or represented by proxy and entitled to vote at the extraordinary general meeting, vote at the extraordinary general meeting. The holders of the PCSC Class A Shares will have no right to vote on the Domestication Proposal, in accordance with Article 34.2 of the Existing Governing Documents. |
• | Governing Documents Proposal: The approval of the Governing Documents Proposal requires a special resolution of the holders of PCSC Class B Shares, being the affirmative vote of at least a two-thirds (2/3) majority of the votes cast by the holders of the issued and outstanding PCSC Class B Shares who, being present in person or represented by proxy and entitled to vote at the extraordinary general meeting, at the extraordinary general meeting. The holders of the PCSC Class A Shares will have no right to vote on the Governing Documents Proposal, in accordance with Article 34.2 of the Existing Governing Documents. |
• | Advisory Governing Documents Proposals: The approval of each Advisory Governing Documents Proposals requires an ordinary resolution, on a non-binding and advisory basis only, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
• | Nasdaq Proposal: The approval of the Nasdaq Proposal requires an ordinary resolution, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
• | Equity Incentive Plan Proposal: The approval of the Equity Incentive Plan Proposal requires an ordinary resolution, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
• | Employee Stock Purchase Plan Proposal: The approval of the Employee Stock Purchase Plan Proposal requires an ordinary resolution, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
• | Adjournment Proposal: The approval of the Adjournment Proposal requires an ordinary resolution under Cayman Islands law, being the affirmative vote of at least a majority of the votes cast by the holders of the issued and outstanding PCSC Shares present in person or represented by proxy at the extraordinary general meeting and entitled to vote on such matter. |
(i) | hold public shares; and |
(ii) | prior to 5:00 p.m., Eastern Time, on [•], 2026 (two business days prior to the initially scheduled vote at the extraordinary general meeting), (a) submit a written request to the PCSC transfer agent in which you (i) request that PCSC redeem all or a portion of your public shares for cash, and (ii) identify yourself as the beneficial holder of the public shares and provide your legal name, phone number and address; and (b) deliver your public shares to the PCSC transfer agent physically or electronically through DTC. |
• | We may need to raise additional capital to fund our existing operations, develop our platform, commercialize our product or new product candidates or expand our operations. |
• | Raising additional capital may cause dilution to our stockholders, restrict our operations and could cause the price of our common stock to decline. |
• | Our approach to the development of multiple blood-based screening tests though the use of our technology platform is unproven, which makes it difficult to predict the time, cost of development and likelihood of successfully developing and launching additional tests. |
• | If we are unable to support demand for SimpleScreen CRC, or future products, if approved, including ensuring that we have adequate capacity to meet increased demand, or we are unable to successfully manage our anticipated growth, our business could suffer. |
• | We may experience challenges attracting and retaining qualified personnel due to competitive labor markets and we may be unable to manage our future growth effectively, all of which could make it difficult to execute our business strategy. |
• | If we lose the services of our founder, our Chief Executive Officer, or other members of our senior management team, we may not be able to execute our business strategy. |
• | Cybersecurity incidents such as security breaches, loss of data and other disruptions in relation to our information technology systems, as well as those of our third-party service providers, could compromise sensitive information related to our business, prevent us from accessing it and expose us to substantial liability, which could adversely affect our business and reputation. |
• | We, our collaborators and our service providers are subject to a variety of privacy and data security laws, regulations and contractual obligations, which may require us to incur substantial compliance costs, and any failure or perceived failure by us to comply with them could expose us to significant fines and other penalties and otherwise harm our business and operations. |
• | If our existing facility becomes damaged or inoperable or we are required to vacate our existing facility, our ability pursue our research and development efforts may be jeopardized. |
• | We rely on commercial courier delivery services to transport samples to our laboratory facility in a timely and cost-efficient manner and if these delivery services are disrupted, our business will be harmed. |
• | We face intense competition from other companies and may not be able to compete successfully. |
• | The use of Artificial Intelligence presents new risks and challenges to our business. |
• | Failure of, or defects in, our machine learning algorithms, artificial intelligence, and cloud-based computing infrastructure, including interruptions of service through third-party service providers, or increased regulation in the machine learning or artificial intelligence space, could impair our ability to process our data, develop products, or provide test results, and harm our business and results of operations. |
• | The sizes of the markets for our products, if approved, have not been established with precision, and may be smaller than we estimate. |
• | We rely on a limited number of suppliers or, in some cases, sole suppliers, for some of our products and materials and may not be able to find replacements or promptly transition to alternative suppliers. |
• | Changes in funding for, or disruptions caused by global health concerns impacting, the FDA and other government agencies or notified bodies could hinder their ability to hire and retain key leadership and other personnel, or otherwise prevent new medical device products from being developed, authorized or commercialized in a timely manner, which could negatively impact our business. |
• | Clinical development involves a lengthy and expensive process with an uncertain outcome, and results of earlier studies may not be predictive of future study results. In addition, regulatory authorities may require more extensive clinical evidence than we anticipate, and the standards for clinical data adequacy can evolve over time. |
• | If the third parties on which we rely for the conduct of our clinical trials and results do not perform our clinical trial activities in accordance with good clinical practices and related regulatory requirements, we may be unable to obtain regulatory clearance or approval for our product candidates or commercialize our products. |
• | Delays in receipt of, or failure to obtain, required FDA clearances or approvals or approvals required in other jurisdictions for our products in development, or improvements to or expanded indications for our current offerings, could materially delay or prevent us from commercializing or otherwise adversely impact future product commercialization. |
• | Our products, if cleared or approved, may in the future be subject to product recalls. A recall of our products, either voluntarily or at the direction of the FDA or another governmental authority, or the discovery of serious safety issues with our products, could have a significant adverse impact on us. In addition, recalls—whether required or voluntary—can trigger increased regulatory scrutiny of our quality systems, manufacturing processes, and post-market surveillance activities. |
• | Traditional fee-for-service Medicare generally does not cover screening tests absent a statutory benefit, and if our future tests are treated as screening tests, our ability to obtain Medicare coverage and reimbursement may be limited, delayed, or require legislative or guideline changes. |
• | If we are unable to obtain and maintain intellectual property protection for our technology, or if the scope of the intellectual property protection we obtain is not sufficiently broad, our competitors may develop and commercialize technology and tests similar or identical to ours, and our ability to successfully commercialize our products may be impaired. |
• | If we are unable to protect the confidentiality of our trade secrets, our business and competitive position would be harmed. |
• | We cannot ensure that patent rights relating to inventions described and claimed in our pending patent applications will issue or that future patents based on our patent applications will not be challenged and rendered invalid and/or unenforceable. |
• | Our Sponsor and our initial shareholders have entered into letter agreements with us to vote in favor of the Business Combination, regardless of how our public shareholders vote. |
• | Since the initial shareholders, including PCSC’s directors and officers, have interests that are different, or in addition to (and which may conflict with), the interests of our shareholders, a conflict of interest may have existed in determining whether the Business Combination with Freenome is appropriate as our initial business combination. Such interests include that Sponsor, as well as our officers and directors, will lose their entire investment in us if our business combination is not completed. |
• | The process of taking a company public by means of a business combination with a special purpose acquisition company is different from taking a company public through an underwritten offering and may create risks for our unaffiliated investors. |
• | The exercise of PCSC’s directors’ and officers’ discretion in agreeing to changes or waivers in the terms of the Business Combination may result in a conflict of interest when determining whether such changes to the terms of the Business Combination or waivers of conditions are appropriate and in PCSC’s shareholders’ best interest. |
• | If the conditions to the Business Combination Agreement are not met, the Business Combination may not occur. |
• | Because PCSC is incorporated under the laws of the Cayman Islands, in the event the Business Combination is not completed, you may face difficulties in protecting your interests, and your ability to protect your rights through the U.S. federal courts may be limited. |
• | PCSC shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination. Having a minority share position may reduce the influence that PCSC’s current shareholders have on the management of New Freenome. |
• | accelerate the development of our multiomics platform driven by artificial intelligence (“AI”) and machine learning (“ML”), which seeks to identify the early biological signals of disease; |
• | expand our commercial and data infrastructure to support future launch of multiple blood-based cancer detection tests; |
• | further advance our R&D programs; |
• | seek to identify additional indications; |
• | expand commercial and operational personnel; |
• | maintain, expand, enforce, defend and protect our intellectual property portfolio and provide reimbursement of third-party expenses related to our patent portfolio; |
• | seek regulatory approvals for any future product candidates for which we successfully complete clinical trials; and |
• | meet the requirements and demands of being a public company. |
• | fund development and marketing efforts of our product or any other future products we may develop; |
• | acquire, license or invest in technologies; |
• | increase our efforts to drive market adoption of our current products and tests, and address competitive developments; and |
• | finance capital expenditures and general and administrative expenses. |
• | the type, number, scope, progress, expansions, results, costs and timing of, discovery, preclinical studies and clinical trials of our product and any product candidates; |
• | the costs, timing and outcome of regulatory review of our current and future product pipeline; |
• | the terms and timing of establishing and maintaining license, collaboration and other similar arrangements; |
• | the legal costs of obtaining, maintaining and enforcing our patents and other intellectual property rights; |
• | our efforts to enhance operational systems and hire additional personnel to satisfy our obligations as a public company; |
• | the costs associated with hiring additional personnel and consultants as our development and commercial activities increase; |
• | the costs and timing of establishing or securing sales and marketing capabilities if any current and future product pipeline is approved; |
• | our ability to achieve sufficient market acceptance, coverage and adequate reimbursement from third-party payers and adequate market share and revenue for any approved products; and |
• | costs associated with any products or technologies that we may in-license or acquire. |
• | disagreement with the design, implementation, or results of, or interpretation of the data from, our clinical studies; |
• | determination that our product has not been shown to be safe and effective or substantially equivalent to a predicate device, or has other characteristics that preclude us from obtaining marketing authorization or certification, or prevent or limit its commercial use (for example, a narrowed indication for use claim); |
• | the population studied in the clinical program may not be sufficiently broad, generalizable, or representative of the intended target population of our product to assure effectiveness and safety in the population for which we seek approval, clearance, or certification; |
• | disagreement with our interpretation of data from clinical studies or may fail to accept data from clinical studies (or clinical sites), including if we fail to establish the integrity of our data; |
• | determination that our clinical studies otherwise fail to comply with applicable regulations, including GCP requirements; |
• | serious or unexpected adverse effects or other performance issues are identified with our existing or future products; |
• | determination that our manufacturing or quality system fails to comply with applicable regulations or otherwise fails to meet the standards necessary to support approval or certification; and |
• | the approval (or certification) policies or regulations of the FDA or comparable foreign regulatory authorities may significantly change in a manner rendering our clinical data insufficient for approval or certification. |
• | the performance, validation, and clinical utility of such products as demonstrated in clinical studies, from real-world use, and published in peer-reviewed journals; |
• | our ability to demonstrate the clinical validation and utility of our products and their potential advantages to the medical community; |
• | the ability of our products to demonstrate comparable or non-inferior performance in real-world intended use populations as in clinical studies; |
• | the willingness of consumers, including self-insured employers, health systems, healthcare providers, life insurance companies, patients, and others in the medical community to utilize our products; |
• | the willingness of commercial third-party payers and government payers to cover and reimburse our products, the scope and amount of which will affect an individual’s or entity’s willingness or ability to pay for our products and likely heavily influence healthcare providers’ decisions to recommend our products; |
• | willingness of providers, patients, and others to learn about our products, and establish a sense of understanding and confidence in the use of our products; |
• | the concern that products could lead to unnecessary medical screening procedures or a high false positive rate and the associated costs of unnecessary workups resulting from false positives; |
• | the belief of providers, patients, and others that the use of our products in its intended use population is clinically appropriate, and not restricting its use to a narrower intended population; |
• | the introduction or market acceptance of future third-party products, including the expansion of the capabilities of existing products and tests that are reimbursed; |
• | the ability of our partners and our employees and contractors to ensure the safety and privacy of our patient data; |
• | publicity (adverse or positive) concerning our products or operations (including third-party partners, patient-facing service providers, vendors, or suppliers) or future third-party products, including adverse publicity resulting from the use of our products or offerings by third parties, including partners; |
• | our ability to fulfill test orders in a timely manner; and |
• | the strength of our marketing and distribution support and patient-facing service providers. |
• | adverse publicity, warning letters, untitled letters, fines, injunctions, consent decrees and civil penalties; |
• | repair, replacement, refunds, recalls, termination of distribution, administrative detention or seizures of our products; |
• | operating restrictions, partial suspension or total shutdown of production; |
• | customer notifications or repair, replacement or refunds; |
• | refusing our requests for clearances or approvals of new products, new intended uses or modifications to existing products; |
• | withdrawals of current clearances, approvals or certifications, resulting in prohibitions on sales of our products; |
• | refusal to issue certificates needed to export products for sale in other countries; and |
• | criminal prosecution. |
• | the federal Anti-Kickback Statute, which prohibits, among other things, persons from knowingly and willfully soliciting, receiving, offering, or paying any remuneration (including any kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to induce, or in return for, either the referral of an individual, or the purchase, lease, order or recommendation of any good, facility, item, or service for which payment may be made, in whole or in part, under a federal healthcare program, such as the Medicare and Medicaid programs. A person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation, and many courts have interpreted that statute as being violated if merely one purpose of any arrangement is to induce referrals or purchases. In 2018, Congress enacted the Eliminating Kickbacks in Recovery Act of 2018 (“EKRA”), which establishes an all-payer anti-kickback prohibition for, among other things, knowingly and willfully paying or offering any remuneration directly or indirectly to induce a referral of an individual to a clinical laboratory. Violations of EKRA may result in fines, imprisonment, or both, for each occurrence. The law includes a limited number of exceptions, some of which closely align with corresponding Anti-Kickback Statute exceptions and safe harbors, and others that materially differ. Currently, there is no regulation interpreting or implementing EKRA, nor any guidance released by a federal agency regarding the scope of EKRA. Based on the plain language of EKRA and recent case law, certain sales-based incentive sales representatives, or customers will not be subject to scrutiny or will withstand regulatory challenge under EKRA; |
• | the federal physician self-referral prohibition, commonly known as the Stark Law, which, in the absence of an applicable exception, prohibits a physician from making a referral for certain designated health services covered by the Medicare or Medicaid program, including clinical laboratory services, if the physician or an immediate family member of the physician has a financial relationship with the entity providing the designated health services. The Stark Law also prohibits the entity furnishing the designated health services from billing, presenting or causing to be presented a claim for the designated health services furnished pursuant to the prohibited referral; |
• | federal civil and criminal false claims laws, including the False Claims Act, which impose criminal and civil penalties, including through civil “qui tam” or “whistleblower” actions, against individuals or entities from knowingly presenting, or causing to be presented, claims for payment or approval from Medicare, Medicaid, or other third-party payers that are false or fraudulent. In addition, the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute or Stark Law constitutes a false or fraudulent claim for purposes of the False Claims Act; |
• | healthcare fraud and false statements laws, which prohibit, among other things, knowingly making a false statement to improperly avoid, decrease, or conceal an obligation to pay money to the federal government. Similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of these statutes or specific intent to violate them in order to have committed a violation; |
• | the federal Civil Monetary Penalties Law, which, subject to certain exceptions, prohibits, among other things, the offer or transfer of remuneration, including waivers of copayments and deductible amounts (or any part thereof), to a Medicare or state healthcare program beneficiary if the person knows or should know it is likely to influence the beneficiary’s selection of a particular provider, practitioner, or supplier of services reimbursable by Medicare or a state healthcare program; |
• | the federal Physician Payment Sunshine Act, created under the ACA, and its implementing regulations, which require manufacturers of drugs, devices, biologicals, and medical supplies for which payment is available under Medicare, Medicaid, or the Children’s Health Insurance Program to report annually to the U.S. Department of Health and Human Services under the Open Payments Program, information related to payments or other transfers of value made to physicians (as defined by statute), teaching hospitals, and other healthcare practitioners, as well as ownership and investment interests held by such physicians and their immediate family members; |
• | federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that potentially harm consumers; and |
• | analogous state and foreign laws and regulations, such as state and foreign anti-kickback, false claims, consumer protection, and unfair competition laws that may apply to our business practices, including, but not limited to, research, distribution, sales and marketing arrangement, as well as submitting claims involving healthcare items or services reimbursed by any third-party payer, including commercial insurers; state laws that require healthcare companies to comply with the medical device industry’s voluntary compliance guidelines, the relevant compliance guidance promulgated by the federal government that otherwise restricts payments that may be made to healthcare providers, and other potential referral sources or state-specific standards on financial interactions with healthcare providers; state laws that require healthcare companies to file reports with states regarding pricing and marketing information, such as the tracking and reporting of gifts, compensation, and other remuneration and items of value provided to healthcare professionals and entities; and state and foreign laws governing the privacy and security of health information in certain circumstances, many of which differ from each other in significant ways and may not have the same effect, thus complicating compliance efforts. |
• | if and when patents may issue based on our patent applications; |
• | the scope of protection of any patent issuing based on our patent applications; |
• | whether the claims of any patent issuing based on our patent applications will provide protection against competitors; |
• | whether or not third parties will find ways to invalidate or circumvent our patent rights; |
• | whether or not others will obtain patents claiming aspects similar to those covered by our patents and patent applications; |
• | whether we will need to initiate litigation or administrative proceedings to enforce and/or defend our patent rights which will be costly whether we win or lose; and/or |
• | whether our patent applications will result in issued patents with claims that cover our products or technologies or uses thereof in the U.S. or in other jurisdictions. |
• | others may be able to make products that are similar to ours but that are not covered by the claims of our patent applications or patents that may issue from such patent applications; |
• | we or our collaborators or future licensors might not have been the first to make the inventions covered by a pending patent application or future patent that we own or license; |
• | we or our collaborators or future licensors might not have been the first to file patent applications covering certain of our or their inventions; |
• | others may independently develop similar or alternative technologies or duplicate any of our technologies without infringing, misappropriating or otherwise violating our intellectual property or proprietary rights; |
• | it is possible that noncompliance with the USPTO’s and foreign governmental patent agencies’ requirements for a number of procedural, documentary, fee payment, and other provisions during the patent process can result in abandonment or lapse of a patent or patent application, and partial or complete loss of patent rights in the relevant jurisdiction; |
• | it is possible that our pending patent applications will not lead to issued patents; |
• | future issued patents that we own may be revoked, modified or held invalid or unenforceable, as a result of legal challenges by our competitors or other third parties; |
• | our competitors or other third parties might conduct research and development activities in countries where we do not have patent rights and then use the information learned from such activities to develop competitive products for sale in our major commercial markets; |
• | we may not develop additional proprietary technologies that are patentable; |
• | we cannot predict the scope of protection of any patent issuing based on our patent applications, including whether the patent applications that we own will result in issued patents with claims that are directed to our products or technologies in the U.S. or in other jurisdictions; |
• | there may be significant pressure on the U.S. government and international governmental bodies to limit the scope of patent protection both inside and outside the U.S. for disease detection, diagnostic, and/or screening technologies that prove successful, as a matter of public policy regarding worldwide health concerns; |
• | countries other than the U.S. may have patent laws less favorable to patentees than those upheld by U.S. courts, allowing foreign competitors a better opportunity to create, develop and market competing products or technologies; |
• | the claims of any patent issuing based on our patent applications may not provide protection against competitors or any competitive advantages or may be challenged by third parties; |
• | if enforced, a court may not hold that our future patents are valid, enforceable and infringed; |
• | we may need to initiate litigation or administrative proceedings to enforce and/or defend our patent rights which will be costly whether we win or lose; |
• | we may choose not to file a patent application in order to maintain certain trade secrets or know-how, and a third party may subsequently file a patent application covering such intellectual property; |
• | we may fail to adequately protect and police our trademarks and trade secrets; |
• | the government could have the option to gain certain rights in inventions covered by our patents if the inventions relate to government grants received by us, especially if we do not meet certain grant requirements for inventions under the Bayh-Dole Act; |
• | the patents of others may have an adverse effect on our business, including if others obtain patents claiming subject matter similar to or improving that covered by our patent applications and future patents; and |
• | the patents of others may have an adverse effect on our business if they are asserted against a third-party supplier for components, accessories, and/or materials that we utilize in our products; such an event could result in a disruption or interruption in supply from these suppliers, or in the operations of such suppliers, which may negatively impact our business, supply chain and laboratory operations and could delay our ability to develop and commercialize our tests, including our CRC genomics assay. |
• | the scope of rights granted under the agreement and other interpretation-related issues; |
• | our financial and other obligations under the agreement; |
• | whether and the extent to which our test, product and/or technology infringe, misappropriate or otherwise violate the intellectual property of the future licensor that is not subject to the agreement; |
• | the sublicensing of patents and other rights; |
• | our diligence and other obligations under the agreement and what activities satisfy those obligations; |
• | the inventorship and ownership of inventions and know-how resulting from the joint creation or use of the intellectual property by our partners and our future licensors; and |
• | the priority of invention of patented technology. |
• | we or our collaborators may initiate litigation or other proceedings against third parties to enforce our patent rights; |
• | third parties may initiate litigation or other proceedings seeking to invalidate our patents or to obtain a declaratory judgment that their products or technology does not infringe our future patents or that such patents are invalid or unenforceable; |
• | third parties may initiate, oppositions, inter partes review, post grant review, or reexamination proceedings challenging the validity or scope of our patent rights, requiring us or our collaborators and/or future licensors to participate in such proceedings to defend the validity and scope of our patents; |
• | there may be a challenge or dispute regarding inventorship or ownership of future patents identified as being owned by us; |
• | at our initiation or at the initiation of a third party, the USPTO may initiate an interference between patent applications or future patents owned by us and those of our competitors or other third parties, requiring us or our collaborators and/or future licensors to participate in an interference proceeding to determine the priority of invention, which could jeopardize our patent rights; or |
• | third parties may seek approval to market products similar to our products prior to expiration of relevant future patents owned by us, requiring us to defend and enforce our future patents, including by filing lawsuits alleging patent infringement. |
• | a board of directors divided into three classes serving staggered three-year terms, such that not all members of the board will be elected at one time; |
• | a prohibition on stockholder actions through written consent, which requires that all stockholder actions be taken at a meeting of stockholders of New Freenome; |
• | a requirement that special meetings of stockholders be called only by the New Freenome Board acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office; |
• | advance notice requirements for stockholder proposals and nominations for election to the New Freenome Board; |
• | a requirement that no member of the New Freenome Board may be removed from office by New Freenome’s stockholders except for cause and, in addition to any other vote required by law, upon the approval of not less than two-thirds of all outstanding shares of New Freenome’s voting stock then entitled to vote in the election of directors; |
• | a requirement of approval of not less than two-thirds of all outstanding shares of New Freenome’s voting stock to amend any bylaws by stockholder action; and |
• | the authority of the New Freenome Board to issue preferred stock on terms determined by the New Freenome Board without stockholder approval and which preferred stock may include rights superior to the rights of the holders of common stock. |
• | the fact that our initial shareholders have agreed not to redeem any PCSC Class A Shares or PCSC Class B Shares held by them in connection with a shareholder vote to approve a proposed initial business combination; |
• | the fact that our initial shareholders have agreed to vote any PCSC Class A Shares or PCSC Class B Shares owned by them in favor of the Business Combination Proposal; |
• | the fact that the initial shareholders, including the Sponsor and certain of PCSC’s officers and directors (including those that are members of the Sponsor), have invested in PCSC an aggregate of $2,887,500, comprised of the $25,000 purchase price for the 2,156,250 PCSC Class B Shares and the $2,862,500 purchase price for 286,250 private placement shares. Subsequent to the initial purchase of the PCSC Class B Shares by the Sponsor, the Sponsor transferred to each of the three independent directors 30,000 PCSC Class B Shares. Such shares will have a significantly higher value at the time of the Business Combination or be worthless if the Business Combination is not consummated and PCSC is liquidated by June 13, 2026 (unless such date is extended in accordance with the Existing Governing Documents); |
• | the fact that the initial shareholders and PCSC’s other current officers and directors have agreed to waive their rights to liquidating distributions from the trust account with respect to any ordinary shares (other than public shares subsequently acquired by them) held by them if PCSC fails to complete an initial business combination by June 13, 2026; |
• | the fact that the Investor Rights Agreement will be entered into by the initial shareholders, being the Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal); |
• | the fact that the Business Combination Agreement provides for the continued indemnification of PCSC’s existing directors and officers and requires New Freenome to maintain the in effect for a period of six years, a “tail” policy providing directors’ and officers’ liability insurance coverage for PCSC’s existing directors and officers after the Business Combination; |
• | the fact that the Sponsor and PCSC’s officers and directors will lose their entire investment in PCSC and will not be reimbursed for any out-of-pocket expenses if an initial business combination is not consummated by June 13, 2026; |
• | the fact that if the trust account is liquidated, including in the event PCSC is unable to complete an initial business combination by June 13, 2026, the Sponsor has agreed to indemnify PCSC to ensure that the proceeds in the trust account are not reduced below $10.00 per public share, or such lesser per public share amount as is in the trust account on the liquidation date, by the claims of prospective target businesses with which PCSC has entered into an acquisition agreement or claims of any third party for services rendered or products sold to PCSC, but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account; |
• | the fact that if the Business Combination or another business combination is not consummated by the June 13, 2026 and if PCSC does not otherwise amend the Existing Governing Documents to extend the time period during which PCSC may consummate a business combination, PCSC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding PCSC Class A Shares for cash and, subject to the approval of its remaining shareholders and the PCSC Board, liquidating and dissolving; |
• | the fact that the Investor Rights Agreement was entered into with the initial shareholders, the Perceptive PIPE Investor and certain Freenome stockholders, which, among other things, (a) gives the initial shareholders, the Perceptive PIPE Investor, certain Freenome stockholders certain registration rights, including the right to have the offer and sale of their shares of New Freenome Common Stock registered on a resale registration statement to be filed by New Freenome shortly after the consummation of the Business Combination, and (b) subjects the shares of New Freenome Common Stock beneficially owned or owned of record by the Sponsor, the Perceptive PIPE Investor, certain officers and directors of PCSC and New Freenome (including any PIPE Shares or shares of New Freenome Common Stock issued pursuant to the Business Combination Agreement) to a 180-day lock-up period beginning on the Closing Date; |
• | the fact that the Sponsor Letter Agreement was executed with the initial shareholders, pursuant to which the initial shareholders, among other things, waive all adjustments to the conversion ratio set forth in the Existing Governing Documents with respect to the PCSC Class B Shares, and agreed to be bound by certain transfer restrictions with respect to PCSC Shares prior to the consummation of the Business Combination, in each case subject to the terms and conditions set forth therein. No consideration has been or will be paid to PCSC, Freenome, Sponsor or each of PCSC’s independent directors in connection with the entry into the Sponsor Letter Agreement; |
• | the fact that the Perceptive PIPE Investor has entered into a subscription agreement to purchase 5,500,000 shares of New Freenome Common Stock in the PIPE Financing, subject to the terms and conditions set forth in the Subscription Agreement executed by the Perceptive PIPE Investor; |
• | the fact that the Perceptive PIPE Investor, which is an affiliate of the Sponsor and certain of PCSC’s directors and officers, has a fully diluted equity ownership stake in Freenome of 6.85% (representing shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series F Preferred Stock), which will convert into 5,615,003 shares of New Freenome Common Stock, or an approximately 4.99% equity stake in New Freenome in connection with the Business Combination; |
• | the fact that Mark C. McKenna, Kenneth Song M.D., and Harlan W. Waksal, M.D. are affiliated with the Perceptive PIPE Investor; |
• | the right of the Sponsor and the Perceptive PIPE Investor to hold shares of New Freenome Common Stock following the Business Combination, subject to the terms and conditions of the lock-up restrictions; and |
• | the fact that PCSC may be entitled to distribute or pay over funds held by PCSC outside the Trust Account to the Sponsor or any of its Affiliates prior to the Closing. |
• | this proxy statement/prospectus would disclose the possibility that our sponsor, directors, officers, advisors or any of their affiliates may purchase shares from Public Shareholders outside the redemption process, along with the purpose of such purchases; |
• | if our sponsor, directors, officers, advisors or any of their affiliates were to purchase shares from public shareholders, they would do so at a price no higher than the price offered through our redemption process; |
• | this proxy statement/prospectus would include a representation that any of our securities purchased by our sponsor, directors, officers, advisors or any of their affiliates would not be voted in favor of approving the Business Combination; |
• | our sponsor, directors, officers, advisors or any of their affiliates would not possess any redemption rights with respect to such securities or, if they do acquire and possess redemption rights, they would waive such rights; and |
• | we would disclose in a Form 8-K, before the extraordinary general meeting to approve the Business Combination, the following material items: |
• | the amount of the public shares purchased outside of the redemption offer by our sponsor, directors, officers, advisors or any of their affiliates, along with the purchase price; |
• | the purpose of the purchases by our sponsor, directors, officers, advisors or any of their affiliates; |
• | the impact, if any, of the purchases by our sponsor, directors, officers, advisors or any of their affiliates on the likelihood that the Business Combination will be approved; |
• | the identities of our shareholders who sold to our sponsor, directors, officers, advisors or any of their affiliates (if not purchased on the open market) or the nature of such shareholders (e.g., 5% security holders) who sold to our sponsor, directors, officers, advisors or any of their affiliates; and |
• | the number of our public shares for which we have received redemption requests pursuant to our redemption offer. |
• | this proxy statement/prospectus would disclose the possibility that the Sponsor and PCSC’s officers and directors and/or their respective affiliates may purchase shares from Public Shareholders outside the redemption process, along with the purpose of such purchases; |
• | if the Sponsor and PCSC’s officers and directors and/or their respective affiliates were to purchase shares from Public Shareholders, they would do so at a price no higher than the price offered through our redemption process; |
• | this proxy statement/prospectus would include a representation that any of our securities purchased by the Sponsor and PCSC’s officers and directors and/or their respective affiliates would not be voted in favor of approving the Business Combination; |
• | the Sponsor and PCSC’s officers and directors and/or their respective affiliates would not possess any redemption rights with respect to such securities or, if they do acquire and possess redemption rights, they would waive such rights; and |
• | we would disclose in a Form 8-K, before the extraordinary general meeting to approve the Business Combination, the following material items: |
○ | the amount of the Public Shares purchased outside of the redemption offer by our sponsor, directors, officers, advisors or any of their affiliates, along with the purchase price; |
○ | the purpose of the purchases by our sponsor, directors, officers, advisors or any of their affiliates; |
○ | the impact, if any, of the purchases by our sponsor, directors, officers, advisors or any of their affiliates on the likelihood that the Business Combination will be approved; |
○ | the identities of our shareholders who sold to our sponsor, directors, officers, advisors or any of their affiliates (if not purchased on the open market) or the nature of such shareholders (e.g., 5% security holders) who sold to our sponsor, directors, officers, advisors or any of their affiliates; and |
○ | the number of our Public Shares for which we have received redemption requests pursuant to our redemption offer. |
• | changes in the industries in which New Freenome and its customers operate; |
• | variations in its operating performance and the performance of its competitors in general; |
• | actual or anticipated fluctuations in New Freenome’s quarterly or annual operating results; |
• | publication of research reports by securities analysts about New Freenome or its competitors or its industry; |
• | the public’s reaction to New Freenome’s press releases, its other public announcements and its filings with the SEC; |
• | New Freenome’s failure or the failure of its competitors to meet analysts’ projections or guidance that New Freenome or its competitors may give to the market; |
• | additions and departures of key personnel; |
• | changes in laws and regulations affecting its business; |
• | failure to comply with laws or regulations, including the Sarbanes-Oxley Act, or failure to comply with the requirements of the relevant U.S. stock exchange; |
• | actual, potential or perceived control, accounting or reporting problems; |
• | commencement of, or involvement in, litigation involving New Freenome; |
• | changes in New Freenome’s capital structure, such as future issuances of securities or the incurrence of additional debt; |
• | the volume of shares of New Freenome Common Stock available for public sale; |
• | general economic and political conditions such as recessions, interest rates, fuel prices, foreign currency fluctuations, international tariffs, social, political and economic risks and acts of war or terrorism; and |
• | the other factors described in this “Risk Factors” section or the section entitled “Cautionary Note Regarding Forward-Looking Statements.” |
• | a limited availability of market quotations for New Freenome’s securities; |
• | reduced liquidity for New Freenome’s securities; |
• | a determination that New Freenome Common Stock is a “penny stock” which will require brokers trading in New Freenome Common Stock to adhere to more stringent rules and possibly result in a reduced level of trading activity in the secondary trading market for New Freenome’s securities; |
• | a limited amount of news and analyst coverage; and |
• | a decreased ability to issue additional securities or obtain additional financing in the future. |
• | a U.S. Holder of Public Shares whose Public Shares have a fair market value of less than $50,000 on the date of the Domestication, and who on the date of the Domestication owns (actually and constructively) less than 10% of the total combined voting power of all classes of Public Shares entitled to vote and less than 10% of the total value of all classes of Public Shares, generally will not recognize any gain or loss and generally will not be required to include any part of PCSC’s earnings in income pursuant to the Domestication; |
• | a U.S. Holder of Public Shares whose Public Shares have a fair market value of $50,000 or more on the date of the Domestication, and who on the date of the Domestication owns (actually and constructively) less than 10% of the total combined voting power of all classes of Public Shares entitled to vote and less than 10% of the total value of all classes of Public Shares will generally recognize gain (but not loss) on the exchange of Public Shares for shares of New Freenome Common Stock pursuant to the Domestication. As an alternative to recognizing gain, such U.S. Holders may file an election to include in income as a dividend the “all earnings and profits amount” (as defined in Treasury Regulation Section 1.367(b)-2(d)) attributable to their Public Shares, provided certain other requirements are satisfied. PCSC does not expect to have significant cumulative earnings and profits on the date of the Domestication; and |
• | a U.S. Holder of Public Shares who on the date of the Domestication owns (actually and constructively) 10% or more of the total combined voting power of all classes of Public Shares entitled to vote or 10% or more of the total value of all classes of Public Shares will generally be required to include in income as a dividend the “all earnings and profits amount” (as defined in Treasury Regulation Section 1.367(b)-2(d)) attributable to its Public Shares. Any such U.S. Holder that is a corporation may, under certain circumstances, effectively be exempt from taxation on a portion or all of the deemed dividend pursuant to Section 245A of the Code. PCSC does not expect to have significant cumulative earnings and profits on the date of the Domestication. |
• | the ability of the New Freenome Board to issue shares of preferred stock, including “blank check” preferred stock and to determine the price and other terms of those shares, including preferences and voting rights, without stockholder approval, which could be used to significantly dilute the ownership of a hostile acquirer; |
• | the limitation of the liability of, and the indemnification of, New Freenome’s directors and officers; |
• | a prohibition on stockholder action by written consent, which forces stockholder action to be taken at an annual or special meeting of stockholders after such date and could delay the ability of stockholders to force consideration of a stockholder proposal or to take action, including the removal of directors; |
• | the requirement that a special meeting of stockholders may be called only by a majority of the entire New Freenome Board, which could delay the ability of stockholders to force consideration of a proposal or to take action, including the removal of directors; |
• | controlling the procedures for the conduct and scheduling of board of directors and stockholder meetings; |
• | the ability of the New Freenome Board to amend the bylaws, which may allow the New Freenome Board to take additional actions to prevent an unsolicited takeover and inhibit the ability of an acquirer to amend the bylaws to facilitate an unsolicited takeover attempt; and |
• | advance notice procedures with which stockholders must comply to nominate candidates to the New Freenome Board or to propose matters to be acted upon at a stockholders’ meeting, which could preclude stockholders from bringing matters before annual or special meetings of stockholders and delay changes in the New Freenome Board, and also may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect the acquirer’s own slate of directors or otherwise attempting to obtain control of New Freenome. |
• | a proposal to approve and adopt, by ordinary resolution, the Business Combination Agreement, including the Mergers, and the transactions contemplated thereby; |
• | a proposal to approve, by special resolution of the holders of PCSC Class B Shares, the Domestication; |
• | a proposal to approve, by special resolution of the holders of PCSC Class B Shares, that the Existing Governing Documents be amended and restated by deletion in their entirety and the substitution in their place of the Proposed Governing Documents; |
• | the following six (6) separate proposals to approve, by ordinary resolutions, on a non-binding and advisory basis only, the following governance provisions contained in the Proposed Governing Documents: |
• | to amend the Existing Governing Documents to authorize the change in the authorized capital stock of PCSC from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares, and 1,000,000 preference shares, par value of $0.0001 per share, to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated preferred stock, par value $0.0001 per share; |
• | to amend the Existing Governing Documents to authorize adopting Delaware as the exclusive forum for certain stockholder litigation; |
• | to amend the Existing Governing Documents to approve provisions requiring the affirmative vote of at least (i) two-thirds of the outstanding shares of capital stock entitled to vote to adopt, amend or repeal the Proposed Bylaws and (ii) a majority of New Freenome’s then outstanding common stock (except where a lower threshold is provided by the DGCL) for amendments to the Proposed Certificate of Incorporation; |
• | to amend the Existing Governing Documents to approve provisions permitting the removal of a director only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, voting together as a single class; |
• | to amend the Existing Governing Documents to approve provisions requiring stockholders to take action at an annual or special meeting and prohibiting stockholder action by written consent in lieu of a meeting; and |
• | to amend the Existing Governing Documents to authorize (i) changing the corporate name from “Perceptive Capital Solutions Corp” to “Freenome, Inc.,” (ii) making New Freenome’s corporate existence perpetual, and (iii) removing certain provisions related to PCSC’s status as a blank check company that will no longer be applicable upon consummation of the Business Combination; |
• | a proposal to approve, by ordinary resolution, the issuance of shares of New Freenome Common Stock issued in connection with the Business Combination and the PIPE Financing pursuant to Nasdaq Listing Rule 5635; |
• | a proposal to approve and adopt, by ordinary resolution, the New Freenome Equity Incentive Plan; |
• | a proposal to approve and adopt, by ordinary resolution, the New Freenome Employee Stock Purchase Plan; and |
• | a proposal to approve by, ordinary resolution, the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to, among other things, permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting. |
• | you can vote by signing and returning the enclosed proxy card. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign, date and return the proxy card without indicating how you wish to vote, your shares will be voted as recommended by the PCSC Board “FOR” the Business Combination Proposal, “FOR” the Domestication Proposal (in the case of the holders of PCSC Class B Shares), “FOR” the Governing Documents Proposal (in the case of the holders of PCSC Class B Shares), “FOR” the Advisory Governing Documents Proposal, “FOR” the Nasdaq Proposal, “FOR” the Equity Incentive Plan Proposal, “FOR” the Employee Stock Purchase Plan Proposal and “FOR” the Adjournment Proposal, in each case, if presented at the extraordinary general meeting. Your proxy card must be received by PCSC not less than 48 hours before the scheduled time of the extraordinary general meeting or any adjournment thereof at which the person named in the proxy card proposes to vote. Proxy cards received after this time will not be counted. |
• | you can attend the extraordinary general meeting and vote in person. You will receive a ballot when you arrive. However, if your PCSC Shares are held in the name of your broker, bank or another nominee, you must get a valid legal proxy from the broker, bank or other nominee. That is the only way PCSC can be sure that the broker, bank or nominee has not already voted your PCSC Shares. |
• | you can vote electronically. You may attend, vote and examine the list of shareholders entitled to vote at the extraordinary general meeting by visiting [•] and entering the control number found on your proxy card. |
• | you may send another proxy card with a later date provided that it is received by PCSC not less than 48 hours before the scheduled time of the extraordinary general meeting or any adjournment thereof at which the person named in the proxy card proposes to vote; |
• | you may notify PCSC’s secretary by writing to Perceptive Capital Solutions Corp, 51 Astor Place, 10th Floor, New York, New York 10003, before the extraordinary general meeting that you have revoked your proxy; or |
• | you may attend the extraordinary general meeting, revoke your proxy, and vote in person, as indicated above. |
(i) | hold public shares; and |
(ii) | prior to 5:00 p.m., Eastern Time, on [•], 2026 (two business days prior to the initially scheduled vote at the |
(a) | at least one business day prior to the Closing Date, PCSC will effect the Domestication by de-registering from the Register of Companies in the Cayman Islands and transfer by way of continuation from the Cayman Islands to Delaware and domesticate as a Delaware corporation in accordance with Section 388 of the DGCL and Part 12 of the Companies Act (Revised) of the Cayman Islands, upon which PCSC will change its name to “Freenome, Inc.”; |
(b) | the parties to the Business Combination Agreement will effect the First Merger by executing and filing a certificate of merger with the Secretary of State of the State of Delaware, pursuant to which Merger Sub I will merge with and into Freenome, with Freenome as the surviving company in the merger and, after giving effect to the First Merger, Freenome will be a wholly-owned subsidiary of PCSC. In accordance with the terms and subject to the conditions of the Business Combination Agreement, at the Effective Time, (i) the Freenome Common Shares issued and outstanding as of immediately prior to the Effective Time (including such shares issued upon the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time in accordance with the terms of the Business Combination Agreement, but excluding Freenome Common Shares held in treasury or by Freenome stockholders who have properly demanded appraisal of such Freenome Common Shares in accordance with Section 262 of the DGCL) will be automatically canceled and extinguished and converted into the right to receive a number of shares of New Freenome Common Stock equal to the Exchange Ratio, which is based on an implied Freenome base equity value of $725,000,000 and subject to certain adjustments as set forth in the Business Combination Agreement; (ii) each Freenome Option, being an option to purchase Freenome Common Shares, |
(c) | as soon as practicable following the Effective Time, but no later than one business day following the Effective Time, subject to the terms and conditions of the Business Combination Agreement, the parties to the Business Combination Agreement will effect the Second Merger by executing and filing a certificate of merger with the Secretary of State of the State of Delaware, pursuant to which Freenome, as the surviving corporation of the First Merger, will merge with and into Merger Sub II, with Merger Sub II continuing as the surviving company in the Second Merger. |
• | the holders of each issued and outstanding PCSC Class B Share will elect to convert their PCSC Class B Shares, on a one-for-one basis, into one PCSC Class A Share; |
• | after effecting the PCSC Shareholder Redemptions, |
• | each issued and outstanding PCSC Class A Share will convert automatically by operation of law, on a one-for-one basis, into one share of New Freenome Common Stock; and |
• | the governing documents of PCSC will become the certificate of incorporation and the bylaws as described in this proxy statement/prospectus and attached as Annex H and Annex I, respectively, to this proxy statement/prospectus and PCSC’s name will change to “Freenome, Inc.”; provided, that the form of the certificate of incorporation and the bylaws will be appropriately adjusted to give effect to any amendments contemplated by the form of certificate of incorporation or the bylaws that are not adopted and approved by PCSC shareholders at the extraordinary general meeting, other than the amendments to the PCSC governing documents that are contemplated by the Governing Documents Proposals, approval of which is a condition to the closing of the Business Combination. |
• | the applicable waiting period under the HSR Act relating to the Business Combination having been expired or been terminated, and any agreement between a party with any governmental entity not to consummate transactions contemplated by the Business Combination Agreement having expired or been terminated or obtained (or deemed, by applicable law, to have been obtained); |
• | no order or law or other legal restraint or prohibition issued by any court of competent jurisdiction or other governmental entity enjoining, prohibiting or preventing the consummation of the transactions contemplated by Business Combination being in effect; |
• | this registration statement/proxy statement on Form S-4 becoming effective in accordance with the provisions of the Securities Act, no stop order being issued by the SEC and remaining in effect with respect to this registration statement/proxy statement on Form S-4, and no proceeding seeking such a stop order having been threatened or initiated by the SEC and remaining pending; |
• | obtaining the written consent of the Freenome stockholders adopting and approving the Business Combination Agreement and the transactions contemplated thereby (including the Mergers and the conversion of all shares of Freenome preferred stock into Freenome Common Shares prior to the Effective Time) duly executed by the requisite number of stockholders of Freenome in accordance with the DGCL, Freenome’s governing documents and Freenome’s stockholder agreements; |
• | the approval of each Condition Precedent Proposal by the affirmative vote of the holders of the requisite number of PCSC Shares being obtained in accordance with PCSC’s governing documents and applicable law; |
• | the approval for listing of the New Freenome Common Stock (including, for the avoidance of doubt, the shares of New Freenome Common Stock to be issued pursuant to the First Merger) on Nasdaq; and |
• | after giving effect to the transactions contemplated by the Business Combination Agreement (including the PIPE Financing and any PCSC shareholder redemptions), PCSC having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Exchange Act) immediately after the Effective Time. |
• | the representations and warranties of Freenome regarding organization and qualification of Freenome and its subsidiaries, certain representations and warranties regarding the capitalization, and amounts payable upon a change in control, of Freenome and the representations and warranties of Freenome regarding the authority of Freenome to, among other things, consummate the transactions contemplated by the Business Combination Agreement, and brokers fees being true and correct (without giving effect to any limitation of “materiality” or “Company Material Adverse Effect” or any similar limitation set forth in the Business Combination Agreement) in all material respects as of the Closing Date as if made at and as of such date (or, if given as of an earlier date, as of such earlier date); |
• | certain other representations and warranties regarding the capitalization of Freenome being true and correct in all respects (except for de minimis inaccuracies) as of the Closing Date (or, if given as of an earlier date, as of such earlier date); |
• | the representation and warranty of Freenome regarding there having been no Company Material Adverse Effect (as such term is defined in the Business Combination Agreement) during the period beginning on January 1, 2025 and ending on December 5, 2025 being true and correct in all respects; |
• | all other representations and warranties of Freenome being true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth in the Business Combination Agreement) in all respects as of the Closing Date (or, if given as of an earlier date, as of such earlier date), except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a Company Material Adverse Effect (as defined in the Business Combination Agreement); |
• | Freenome having performed and complied in all material respects with the covenants and agreements required to be performed or complied with by it under the Business Combination Agreement at or prior to the Closing; |
• | since December 5, 2025, no Company Material Adverse Effect having occurred that is continuing; |
• | PCSC having received a certificate executed by an authorized officer of Freenome confirming that the conditions set forth in the first six bullet points in this section have been satisfied; |
• | PCSC having received the executed Investor Rights Agreement duly executed by Freenome; and |
• | PCSC having received Transaction Support Agreements duly executed by Freenome stockholders holding, as of immediately prior to the Effective Time, at least a majority of the outstanding Freenome Preferred Shares, whose vote or prior written consent is required for the conversion of shares of Freenome preferred stock into Freenome Common Shares pursuant to Freenome’s governing documents, and a majority of Freenome Series C preferred stock, Series D preferred stock, Series E preferred stock, and Series F preferred stock, including certain key supporting stockholders of Freenome. |
• | the representations and warranties regarding organization and qualification of the PCSC Parties, the authority of PCSC to, among other things, consummate the transactions contemplated by the Business Combination Agreement, certain representations and warranties regarding the capitalization of the PCSC Parties, and brokers fees being true and correct, in all material respects as of the Closing Date, as though made on and as of the Closing Date (or, if given as of an earlier date, as of such earlier date); |
• | certain other representations and warranties regarding the capitalization of PCSC being true and correct in all respects, (except for de minimis inaccuracies) as of the Closing Date (or, if given as of an earlier date, as of such earlier date); |
• | all other representations and warranties of the PCSC Parties being true and correct (without giving effect to any limitation of “materiality” or “PCSC Material Adverse Effect” (as defined in the Business Combination Agreement) or any similar limitation set forth in the Business Combination Agreement) in all respects as of the Closing Date, except where the failure of such representations and warranties to be true and correct, taken as a whole, does not cause a PCSC Material Adverse Effect; |
• | the PCSC Parties having performed and complied in all material respects with the covenants and agreements required to be performed or complied with by them under the Business Combination Agreement at or prior to the Closing; |
• | since December 5, 2025, no PCSC Material Adverse Effect having occurred that is continuing; |
• | the New Freenome Board consisting of the number of directors, and comprising the individuals, determined pursuant to Section 5.17(a)(i) and (ii) of the Business Combination Agreement; |
• | the Aggregate Transaction Proceeds being equal to or greater than $250,000,000; |
• | the Domestication having been consummated at least one business day prior to the Closing Date; |
• | Freenome having received a certificate executed by an authorized officer of PCSC confirming that the conditions set forth in the first five bullet points of this section have been satisfied; and |
• | Freenome having received the Investor Rights Agreements duly executed by PCSC and the Perceptive Shareholders. |
• | Subject to certain exceptions or as consented to in writing by PCSC (such consent not to be unreasonably withheld, conditioned or delayed (provided, that PCSC will be deemed to have consented in writing if it provides no acknowledgement of receipt within five business days after Freenome has made a request for such consent in writing)), prior to the Closing, Freenome will and will cause its subsidiaries to, operate the business of Freenome and its subsidiaries in the ordinary course in all material respects and use commercially reasonable efforts to maintain and preserve intact in all material respects the business organization, assets, properties and material business relations of Freenome and its subsidiaries. |
• | Subject to certain exceptions, prior to the Closing, Freenome will and will cause its subsidiaries to, not do any of the following without PCSC’s consent (such consent not to be unreasonably conditioned, withheld or delayed): |
• | declare, set aside, make or pay any dividends or distribution or payment in respect of, or repurchase or redeem any outstanding, any equity securities of Freenome or any subsidiary; |
• | merge, consolidate, combine or amalgamate with any person or purchase or otherwise acquire any business entity or organization or division thereof; |
• | adopt any amendments, supplements, restatements or modifications to any governing documents of Freenome or its subsidiaries or the Freenome Stockholder Agreements; |
• | sell, assign, abandon, lease, exclusively license or otherwise dispose of any material assets or properties of Freenome or its subsidiaries, other than inventory or obsolete equipment in the ordinary course of business; |
• | subject any material assets or properties of Freenome or its subsidiaries to any lien; |
• | dispose or subject to a lien any equity interests of Freenome or its subsidiaries or issue any options or other rights obligating Freenome or any of its subsidiaries to issue any equity interests; |
• | incur, create or assume any indebtedness other than ordinary course trade payables, or guarantee any liability of any person or entity; |
• | make any loans, advances or capital contributions to, or guarantees for the benefit of, or any investments in, any person; |
• | adopt or amend in any material respect, enter into or terminate any material benefit plan or materially increase the compensation or benefits payable to any current or former director, manager, officer, employee, individual, independent contractor or service provider or take any action to accelerate any payment or benefit payable to any such person; |
• | waive or release any noncompetition, non-solicitation, no-hire, nondisclosure or other restrictive covenant obligation of any current or former director, manager, officer, employee, individual independent contractor or other service provider; |
• | make, change or revoke any material tax election, enter into any material tax closing agreement, settle any material tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any material tax claim or assessment, other than any such extension or waiver obtained in the ordinary course of business; |
• | enter into any settlement the performance of which would involve payment in excess of a certain threshold or that impose any material non-monetary obligations on Freenome or any of its subsidiaries; |
• | authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reorganization or similar transaction; |
• | change the methods of accounting of Freenome or any of its subsidiaries, in any material respect, other changes that are made in accordance with Public Company Accounting Oversight Board standards; |
• | enter into any contract providing for the payment of any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the Business Combination Agreement or any ancillary document; |
• | make any change of control payment or payment with respect to a related party transaction that is not disclosed on the Freenome disclosure schedules; and |
• | amend, modify or terminate any material contract outside the ordinary course of business or waive any material benefit or right under any such material contract or enter into any contract that would constitute a material contract had it been effective prior to the date of the Business Combination Agreement. |
• | Subject to certain exceptions (including the ability of any PCSC Party to use (i) funds held by PCSC outside the Trust Account to pay any PCSC expenses or liabilities to distribute or pay over any funds held by PCSC outside the Trust Account to the Sponsor or any of its affiliates, in each case, prior to the Closing and (ii) extending one or more times, in accordance with PCSC’s governing documents, the deadline by which PCSC must complete its business combination) or as consented to in writing by Freenome (such consent not to be unreasonably withheld, conditioned or delayed, it being agreed that Freenome will be deemed to have consented in writing if it provides no acknowledgment of receipt within five business days after PCSC has made a request for such consent in writing and that the authorized representatives of Freenome prior to the Closing), PCSC will, and will cause its subsidiaries to, not do any of the following: |
• | adopt any amendments, supplements, restatements or modifications to the PCSC trust agreement, warrant agreement or the governing documents of PCSC or any of its subsidiaries; |
• | declare, set aside, make or pay any dividends or distribution or payment in respect of, or repurchase any outstanding, any equity securities of PCSC or any of its subsidiaries; |
• | split, combine or reclassify any of its capital stock or other equity securities or issue any other security in respect of, in lieu of or in substitution for shares of its capital stock; |
• | incur, create or assume any indebtedness or other liability; |
• | make any loans or advances to, or capital contributions in, any other person, other than to, or in, PCSC or any of its subsidiaries; |
• | issue any equity securities or grant any additional options, warrants or stock appreciation rights with respect to equity securities of PCSC or any of its subsidiaries; |
• | enter into, renew, modify or revise any PCSC related party transaction; |
• | engage in any activities or business, other than activities or business (i) in connection with or incident or related to such person’s organization, incorporation or formation, or continuing corporate (or similar) existence, (ii) contemplated by, or incident or related to, the Business Combination Agreement, any ancillary document thereto, the performance of covenants or agreements thereunder or the consummation of the transactions contemplated thereby or (iii) those that are administrative or ministerial, in each case, which are immaterial in nature; |
• | make, change or revoke any material tax election enter into any material tax closing agreement, settle any material tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to or relating to any material tax claim or assessment, other than any such extension or waiver obtained in the ordinary course of business; |
• | authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation or dissolution; and |
• | enter into any contract providing for the payment of any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the Business Combination Agreement. |
• | using reasonable best efforts to consummate the Business Combination, including using reasonable best efforts to obtain the PIPE Financing on the terms and subject to the conditions set forth in the Subscription Agreements and to obtain, file with or deliver to, as applicable, any consents of any governmental entities or other persons necessary, proper or advisable to consummate the transactions contemplated by the Business Combination Agreement or the ancillary documents; |
• | notifying the other party in writing promptly after learning of any transaction litigation relating to the Business Combination Agreement, any ancillary document or any matters relating thereto and reasonably cooperate with one another in connection therewith; |
• | keeping certain information confidential in accordance with the existing non-disclosure agreement between the parties; |
• | providing each other with reasonable access to their respective directors, officers, books and records and properties; |
• | making relevant public announcements; |
• | using (and causing their respective affiliates to use) reasonable best efforts to cause the Domestication to qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code and for the Merger to qualify as an integrated transaction treated as a “reorganization” within the meaning of Section 368 of the Code; |
• | cooperating (and causing their respective affiliates to cooperate) fully in connection with certain tax matters and filings; and |
• | the preparation of this registration statement/proxy statement on Form S-4, including Freenome’s obligations to provide the required financial information or statements and customary pro forma financial statements for inclusion herein and in any other filings to be made by PCSC with the SEC in connection with the transactions contemplated by the Business Combination Agreement or any ancillary documents. |
• | by the mutual written consent of PCSC and Freenome; |
• | by PCSC, subject to certain exceptions, if any of the representations or warranties made by Freenome are not true and correct or if Freenome fails to perform or has otherwise breached any of its covenants or agreements under the Business Combination Agreement (including an obligation to consummate the Closing) such that the relevant conditions to the obligations of PCSC, as described in the section entitled “—Conditions to Closing of the Business Combination” above could not be satisfied (assuming the Closing occurred as of such date) and the breach (or breaches) of such representations or warranties or failure (or failures) to perform such covenants or agreements is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof, and (ii) September 5, 2026; |
• | by Freenome, subject to certain exceptions, if any of the representations or warranties made by the PCSC Parties are not true and correct or if any PCSC Party fails to perform any of its covenants or agreements under the Business Combination Agreement (including an obligation to consummate the Closing) such that the relevant conditions to the obligations of Freenome, as described in the section entitled “—Conditions to Closing of the Business Combination” above could not be satisfied (assuming the Closing occurred as of such date) and the breach (or breaches) of such representations or warranties or failure (or failures) to perform such covenants or agreements is (or are) not cured or cannot be cured within the earlier of (i) thirty (30) days after written notice thereof, and (ii) September 5, 2026; |
• | by either PCSC or Freenome, |
• | if the transactions contemplated by the Business Combination Agreement are not consummated on or prior to September 5, 2026, unless the breach of any covenants or obligations under the Business Combination Agreement or any ancillary documents to the Business Combination Agreement to which the party seeking to terminate is a party by the party seeking to terminate proximately caused the failure to consummate the transactions contemplated by the Business Combination Agreement on or before September 5, 2026; |
• | if any governmental entity has issued an order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions contemplated by the Business Combination Agreement (including the Domestication and the Mergers) and such order or other action has become final and nonappealable; |
• | if the requisite approvals by the PCSC shareholders of the Condition Precedent Proposals are not obtained at the extraordinary general meeting (including any adjournment thereof); and |
• | by PCSC, if Freenome has not delivered, or caused to be delivered to PCSC, the Freenome Stockholder Written Consent or the Transaction Support Agreements as and when required under the Business Combination Agreement. |
• | have scientific or other competitive advantages in the markets in which they operate and ability to benefit from access to additional capital as well as PCSC’s industry relationships and expertise; |
• | are ready to be public companies, with strong management, corporate governance and reporting policies in place; |
• | will likely be well received by public investors and are expected to have good access to the public capital markets; |
• | have significant embedded and/or underexploited growth opportunities; |
• | exhibit unrecognized value or other characteristics that PCSC believes have been misevaluated by the market, based on PCSC’s rigorous analysis and scientific and business due diligence review; and |
• | will offer attractive risk-adjusted equity returns for PCSC shareholders. |
• | PCSC’s preliminary assessment of the target’s equity valuation; |
• | the strength, differentiation, and future prospects of the target’s pipeline, platform, or underlying scientific approach; and |
• | the target’s preparedness for a business combination and readiness to operate as a public company on an expeditious signing and closing timeline. |
• | PCSC’s directors’ and officers’ belief that Freenome was the most attractive opportunity that met PCSC’s key criteria, including due to its differentiated scientific and technological approach, its advancement toward meaningful near- and medium-term development or commercial milestones and the strength and experience of its management team; |
• | Freenome’s preparedness and willingness to devote appropriate resources to expeditiously negotiate and sign a definitive agreement, consummate a business combination, and transition to becoming a public company; |
• | the more advanced stage of engagement, discussions, and negotiations with Freenome, including substantial progress on key terms and conditions; and |
• | Freenome’s willingness to enter into a non-binding term sheet, with exclusivity, on terms PCSC’s directors and officers believed were attractive. |
• | the Business Combination will expand both the access to capital for Freenome and the range of investors potentially available as a public company, compared to the investors Freenome could otherwise gain access to if it continued to operate as a privately-held company; |
• | Freenome’s expected cash resources and need for additional capital to fund the development and commercialization of its product, and the uniqueness of this particular potential Business Combination, as the negotiated transaction will result in the infusion of capital from strategic healthcare investors at the time of Closing; |
• | the potential benefits from increased public market awareness of Freenome and its product and product candidates; |
• | the historical and current information concerning Freenome’s business, including its financial performance and condition, operations, management and research and development programs; |
• | the competitive nature of the industry in which Freenome operates; |
• | the Freenome Board’s fiduciary duties to Freenome’s stockholders; |
• | the Freenome Board’s belief that this transaction provides a viable public listing strategy and access to available capital, and addresses the risk of the lack of an available or unfavorable market for an initial public offering at a later date; |
• | the terms and conditions of the Business Combination Agreement; and |
• | the likelihood that the Business Combination will be consummated on a timely basis. |
• | the possibility that the Business Combination might not be completed in a timely manner or at all, and the potential adverse effect of the public announcement of the Business Combination on the reputation of Freenome and the ability of Freenome to obtain financing in the future in the event the Business Combination is not completed; |
• | the costs involved in connection with completing the Business Combination, the time and effort of Freenome management required to complete the Business Combination, the related disruptions or potential disruptions to Freenome’s business operations and future prospects, including its relationships with its employees, licensors, contract research organizations and partners and others that do business or may do business in the future with Freenome, and related administrative challenges associated with combining the companies; |
• | the additional expenses and obligations to which Freenome’s business will be subject following the Business Combination that Freenome has not previously been subject to, and the operational changes to Freenome’s business, in each case that may result from being a public company; |
• | the fact that the representations and warranties in the Business Combination Agreement do not survive the closing of the merger and the potential risk of liabilities that may arise post-closing; |
• | the risk that the current Public Shareholders of PCSC can redeem their PCSC Class A Shares for cash in connection with the consummation of the Business Combination, thereby reducing the amount of cash available to New Freenome following the consummation of the Business Combination; |
• | the possibility of litigation challenging the Business Combination; and |
• | various other risks associated with the combined organization and the merger, including the risks described in the section entitled “Risk Factors” in this prospectus. |
• | Dr. Hukkelhoven, an executive officer of the Perceptive PIPE Investor, is a director of Freenome. In light of her relationship with both Freenome and the Perceptive PIPE Investor, an affiliate of the Sponsor, and to avoid any potential conflicts of interest, Freenome formed the Freenome Strategic Transaction Committee. |
• | Upon the completion of the Business Combination, the following persons are expected to be appointed Executive Officers of New Freenome: Drs. Elliott and Lin and Messrs. Ennis and Le. For a description of these arrangements see “Management of New Freenome Following the Business Combination—Executive Officers.” |
• | In connection with the closing of the Business Combination, Dr. Elliott is expected to receive the Initial Equity Awards and Anti-Dilution Equity Awards. See “Executive Compensation—Employment Arrangements in Place Prior to the Business Combination for Named Executive Officers.” |
• | meetings with Freenome’s management team to understand and analyze Freenome’s business and prospects; |
• | legal due diligence conducted by Cooley; |
• | review of Freenome’s historical financial information; and |
• | review of the proposed structure of the Business Combination and drafts of definitive documents. |
• | Novel Technology for Early Cancer Detection, with Positive Data. Freenome’s commercial, flagship testing product, the SimpleScreen CRC v1, which is designed to deliver high sensitivity at the earliest and most treatable stages of colorectal cancer (CRC), is supported by the largest prospective study of its kind, PREEMPT CRC, which met all primary endpoints (topline readout completed in April 2024) and is designed to meet FDA requirements for a first-line label. Freenome has completed the premarket approval application submission for the SimpleScreen CRC v1 and expects FDA approval in 2026. |
• | Critical and Valuable Commercial Partnerships. The Special Committee and the PCSC Board believe that (i) Freenome’s exclusive U.S. license agreement with Exact Sciences, a leading provider of cancer screening and diagnostic tests, to commercialize SimpleScreen CRC and (ii) Freenome’s exclusive agreement with Roche to expand ongoing technology collaboration and develop and commercialize cancer screening tests outside the U.S., will accelerate market adoption of Freenome’s diagnostic tests and enhance Freenome’s overall screening platform to expedite the development of personalized screening tests for multiple types of cancer indications. For more information, see “Information about Freenome—Key Collaborations—Exact Collaboration and License Agreement.” |
• | Market Opportunity. The Special Committee and the PCSC Board believe that Freenome’s technology has a significant market opportunity. The Special Committee and the PCSC Board believe that Freenome has promising and differentiated diagnostic blood-based test programs, built off of the components of Freenome’s artificial intelligence and machine learning-based platform. |
• | Experienced Leadership Team. The Special Committee and the PCSC Board believe that Freenome has a proven and experienced team that is positioned to successfully lead New Freenome after the Business Combination and advance its diagnostic tests. |
• | Transaction Proceeds. Depending on the extent of redemptions by PCSC’s public shareholders and on the final amount of transaction expenses incurred in connection with the Business Combination, the Business Combination is expected to provide up to approximately $330 million of gross cash proceeds to New Freenome. This additional cash injection is expected to, among other things, fund New Freenome’s business plan through 2028 in all four redemption scenarios. For more information, see “Unaudited Pro Forma Condensed Combined Financial Information.” |
• | Opinion of the Special Committee’s Financial Advisor. The oral opinion of Scalar (subsequently confirmed in writing) rendered to the Special Committee on December 4, 2025, to the effect that, as of such date and based upon and subject to the Procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Scalar in preparing its opinion (attached as Annex L to this proxy statement/prospectus), the Consideration (as defined in such opinion) to be paid by PCSC to the Freenome Stockholders pursuant to the Business Combination Agreement was fair from a financial point of view to PCSC Class A Shareholders (other than the Excluded Parties) and PCSC, as more fully described below under the caption “Business Combination Proposal—Opinion of Scalar, LLC.” |
• | PIPE Equity Commitment. A group of institutional and accredited investors, including certain existing Freenome Stockholders and PCSC Shareholders, have committed $240.0 million in PIPE subscriptions, with those investors who are existing Freenome Stockholders (other than those investors who are existing PCSC Shareholders) subscribing for approximately $72.4 million of the PIPE Financing, those investors who are existing PCSC Shareholders (other than those investors who are existing Freenome Stockholders) subscribing for approximately $15.0 million of the PIPE Financing, those investors who are existing shareholders of both PCSC and Freenome (other than the Perceptive PIPE Investor) subscribing for approximately $52.6 million of the PIPE Financing, the Perceptive PIPE Investor subscribing for an aggregate of $55.0 million of the PIPE Financing, and those investors who are neither existing Freenome Stockholders nor existing PCSC Shareholders subscribing for $45.0 million of the PIPE Financing. This was |
• | Other Alternatives. The Special Committee and the PCSC Board believed, after a review of other business combination opportunities reasonably available to PCSC, that the proposed Business Combination represents the best potential business combination for PCSC based on its evaluation of Freenome and other potential business combination targets. |
• | Due Diligence. PCSC’s management team, with the assistance of PCSC’s financial, legal and regulatory advisors, conducted a due diligence review of Freenome including extensive telephonic and in-person meetings with the management team and advisors of Freenome regarding Freenome and its business plan, operations, prospects, evaluation analyses with respect to the Business Combination, review of material contracts, Freenome’s audited and unaudited financial statements and other material matters as well as general financial, technical, legal, intellectual property, regulatory, tax and accounting due diligence. |
• | Financial Condition. The Special Committee and the PCSC Board reviewed factors such as Freenome’s historical financial results, outlook and business and financial plans. In reviewing these factors, the Special Committee and the PCSC Board believe that Freenome is well positioned in its industry for potential strong future growth and therefore is likely to be positively viewed by public investors. |
• | Reasonableness of Consideration. Following a review of the financial data provided to PCSC, the due diligence of Freenome’s business conducted by PCSC’s management, PCSC’s advisors and the Special Committee’s advisors, including the fairness opinion delivered to the Special Committee by Scalar, and the support for the pre-transaction equity value of Freenome of $725 million that was expressed by PIPE Investors that decided to participate in the PIPE Financing, the management of PCSC determined that the aggregate consideration to be paid in the Business Combination was reasonable. |
• | Negotiated Transaction. The Special Committee and the PCSC Board considered the terms and conditions of the Business Combination Agreement and the related agreements and the transactions contemplated thereby, including each party’s representations, warranties and covenants, the conditions to each party’s obligation to consummate the Business Combination and the termination provisions of the Business Combination Agreement, as well as the strong commitment by both PCSC and Freenome to complete the Business Combination. The Special Committee and the PCSC Board also considered the financial and other terms of the Business Combination Agreement and the fact that such terms and conditions were the product of arm’s length negotiations between PCSC and Freenome. |
• | Post-Closing Economic Interest in New Freenome. If the Business Combination is consummated, PCSC’s shareholders (other than the public shareholders that sought redemption of their public shares) would have a meaningful economic interest in New Freenome and, as a result, would have a continuing opportunity to benefit from the success of New Freenome following the consummation of the Business Combination. |
• | Lock-Up. Pursuant to the Lock-up Agreement and subject to customary exceptions set forth therein, the shares of New Freenome Common Stock beneficially owned or owned of record by the Sponsor, the Perceptive PIPE Investor, certain officers and directors of PCSC and New Freenome (including any shares of New Freenome Common Stock issued pursuant to the PIPE Financing or shares of New Freenome Common Stock issued pursuant to the Business Combination Agreement) will be subject to a six-month lock-up period beginning on the Closing Date. |
• | Industry and Trends. Freenome’s business approach combines a multiomics platform that analyzes multiple signals in the blood with artificial intelligence and machine learning to tune into cancer’s subtlest clues, even at the earliest stages of the disease. The Special Committee and the PCSC Board consider Freenome’s novel approach towards cancer detection attractive, and, following a review of industry trends and other industry factors (including, among other things, historic and projected market growth), believe it has continued growth potential in future periods. |
• | Advisor Special Purpose Acquisition Company Experience. The fact that PCSC received advice on financial and strategic matters in connection with the Business Combination from advisors that have expertise in a wide |
• | Macroeconomic Risks. The risk that the future financial performance of Freenome may not meet the Special Committee’s and the PCSC Board’s expectations due to factors in Freenome’s control or outside of its control. |
• | Regulation. The risk that changes in the regulatory and legislative landscape or new industry developments may adversely affect the financial results and the other business benefits anticipated to result from the Business Combination. |
• | Redemption Risk. The potential that a significant number of public shareholders elect to redeem their shares prior to the consummation of the Business Combination and pursuant to the Existing Governing Documents. However, even in the event that a significant number of public shareholders elect to redeem their shares, this redemption would not be expected to, on its own, prevent the consummation of the Business Combination. |
• | Benefits Not Achieved. The risk that the potential benefits of the Business Combination may not be fully achieved or may not be achieved within the expected timeframe. |
• | Exclusivity. The fact that the Business Combination Agreement includes an exclusive dealing provision that prohibits PCSC from soliciting or cooperating with other business combination proposals, which restricts PCSC’s ability, so long as the Business Combination Agreement is in effect, to consider other potential business combinations. In addition, under the Business Combination Agreement, unless required by applicable law, the PCSC Board may not modify or withdraw in a manner adverse to Freenome its recommendation to the PCSC shareholders to vote in favor of the Business Combination Proposal and the other proposals set forth in this proxy statement/prospectus. |
• | Shareholder Vote. The risk that PCSC’s shareholders may fail to provide the votes necessary to effect the Business Combination. |
• | Market Volatility. The possibility that the market for PCSC Class A Shares experiences volatility and disruptions, causing deal disruption. |
• | Liquidation of PCSC. The risks and costs to PCSC if the Business Combination is not completed, including the risk of diverting management focus and resources from other business combination opportunities, which could result in PCSC being unable to effect a business combination by June 13, 2026, unless otherwise extended, and force PCSC to liquidate. |
• | Closing Conditions. The potential risks and costs associated with the Business Combination failing to be consummated in a timely manner or that Closing might not occur despite the reasonable best efforts of the parties. The completion of the Business Combination is conditioned on the satisfaction of certain Closing conditions that are not within PCSC’s control, including but not limited to approval by PCSC shareholders. See “Business Combination Proposal—Conditions to Closing of the Business Combination” for more information. |
• | Listing Risks. The challenges associated with preparing Freenome, a privately held entity, for the applicable disclosure, controls and listing requirements to which New Freenome will be subject as a publicly traded company on Nasdaq or another stock exchange. |
• | Fees and Expenses. The expected fees and expenses associated with the Business Combination and related transactions, some of which would be payable regardless of whether the Business Combination is ultimately consummated, and the substantial time and effort of management required to complete the Business Combination. |
• | Litigation Related to the Business Combination. The possibility of litigation challenging the Business Combination or that an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Business Combination. |
• | Interests of Certain Persons. The Special Committee was aware that the Perceptive PIPE Investor is an investor in Freenome. The Special Committee was also aware that the Sponsor, the Perceptive PIPE Investor, and PCSC’s officers, and directors may have interests in the Business Combination that are in addition to, and that may be different from, the interests of unaffiliated PCSC shareholders. For instance, the Sponsor will benefit from the completion of a business combination and may be incentivized to complete an acquisition of a less favorable target company or on terms less favorable to shareholders. Such interests are described in more detail under the caption “The Business Combination—Interests of the Sponsor, the Perceptive PIPE Investor, and PCSC’s Directors and Officers in the Business Combination.” The PCSC Board took several steps to mitigate these potential conflicts of interest, including establishing the Special Committee, comprised of three independent directors of PCSC, and requiring Special Committee approval of the Business Combination as a condition precedent to the PCSC Board’s approval of the Business Combination. The Special Committee also engaged Scalar to render an opinion and engaged Ropes & Gray and Maples as separate legal counsel to the Special Committee. Additionally, the Perceptive PIPE Investor’s designee on the Freenome Board recused herself from Freenome Board discussions regarding the Business Combination. |
• | Public Shareholders Will Have a Minority Ownership Interest in New Freenome. The fact that current public shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination and, as a result, such public shareholders will collectively own a minority interest in New Freenome after the Closing. As redemptions increase, the overall percentage ownership and voting percentage held by the Freenome stockholders, the Sponsor, the Perceptive PIPE Investor and the PIPE Investors will increase as compared to the overall percentage ownership and voting percentage held by public shareholders, thereby increasing dilution to public shareholders. Having a minority ownership interest may reduce the influence that current public shareholders have on the management of New Freenome. For more information, see “The Business Combination—Equity Ownership Upon Closing” and “Dilution.” |
• | Absence of Possible Structural Protections for Minority Shareholders. The PCSC Board took several steps to mitigate potential conflicts of interest, including requiring Special Committee approval of the Business Combination as a condition precedent to the PCSC Board’s approval of the Business Combination. However, other possible structural protections were not put in place. For example, the Business Combination does not require approval of a majority of unaffiliated security holders, and the Special Committee did not retain an unaffiliated representative to act solely on behalf of unaffiliated security holders for purposes of negotiating the terms of the Business Combination or to prepare a report concerning the approval of the Business Combination. |
• | Other Risks. Various other risks associated with the Business Combination, the business of PCSC and the business of Freenome described under the section entitled “Risk Factors.” |
• | PCSC: The PCSC Board and the Special Committee determined that the Business Combination presents an attractive business opportunity in light of a variety of factors, including but not limited to Freenome’s novel technology for early cancer detection, critical and valuable commercial partnerships, commercialization strategy, market opportunity, experienced leadership team, and the existence and size of the PIPE Financing. The Special Committee also reviewed the financial analysis and opinion of Scalar to the effect that, as of December 4, 2025 and based upon and subject to the assumptions, limitations, qualifications and other |
• | Sponsor and the Perceptive PIPE Investor: The Sponsor and the Perceptive PIPE Investor expect to receive substantial consideration in the Business Combination, including the following shares, calculated assuming the Aggregate Transaction Proceeds Condition Redemptions Scenario: (i) 2,066,250 shares of New Freenome Common Stock upon the exchange of 2,066,250 PCSC Class B Shares in the Domestication, which were initially purchased by the Sponsor prior to PCSC’s initial public offering for approximately $0.01 per share, and which will be voluntarily converted on a one-for-one basis into PCSC Class A Shares immediately prior to the Domestication, which will then automatically convert at the effective time of the Domestication into an equal number of shares of New Freenome Common Stock, valued at $10 per share, which is the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement, (ii) 286,250 shares of New Freenome Common Stock upon the exchange of 286,250 PCSC Class A Shares in the Domestication, which were initially purchased in a private placement that closed concurrently with PCSC’s initial public offering for $10 per share, which will automatically convert at the effective time of the Domestication into an equal number of shares of New Freenome Common Stock valued at $10 per share, which is the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement, (iii) 5,500,000 shares of New Freenome Common Stock, which is equal to the Perceptive PIPE Investor’s $55 million PIPE Financing divided by $10, the price per share of New Freenome Common Stock to be issued pursuant to the PIPE Financing, and (v) an estimated 5,615,003 shares of New Freenome Common Stock upon the exchange of Freenome capital stock in the First Merger held by the Perceptive PIPE Investor, which is determined by reference to the estimated Conversion Ratio using the assumed per share price of $10 in the Business Combination pursuant to the Business Combination Agreement. The Sponsor and its affiliates, including Perceptive Advisors, LLC, are also entitled to continued indemnification by New Freenome following the Closing pursuant to the terms of the Business Combination Agreement. The Sponsor is also entitled to the repayment of any Working Capital Lonas made by the Sponsor (of which there are none as of the date of this proxy statement/prospectus) and the payment of $15,000 per month by PCSC to the Sponsor for office space, secretarial and administrative services pursuant to the Administrative Services and Indemnification Agreement dated June 11, 2024, by and between PCSC and the Sponsor. For more information, see “— Compensation to be Received by the Sponsor, the Perceptive PIPE Investor, and PCSC’s Officers and Directors in Connection with the Business Combination and PIPE Financing.” The Sponsor will only be able to realize a return on their equity in PCSC (which may be materially higher than the return realized by public shareholders) if PCSC completes a business combination. In addition, the Sponsor faces potential detriments from the Business Combination, including the possibility of litigation challenging the Business Combination or the Sponsor’s role in the Business Combination, and the risk that if the Business Combination is not achieved, PCSC may be unable to consummate a business combination and be forced to liquidate, resulting in the Sponsor’s investment being worthless. |
• | PCSC Independent Directors: PCSC’s independent directors (Messrs. McKenna, Song and Waksal) each own 30,000 PCSC Class B Shares, which will be exchanged for 30,000 shares of New Freenome Common Stock in the Domestication. Such persons have waived any claim against the trust account for redemption of such PCSC Class B Shares. PCSC’s independent directors are also entitled to the repayment of any out-of-pocket expenses (of which there are none as of the date of this proxy statement/prospectus). Accordingly, in the event that PCSC liquidates, the PCSC independent directors may lose their entire investment. In addition, the PCSC directors face potential detriments from the Business Combination, including the possibility of litigation challenging the Business Combination or such directors’ roles in the Business Combination. |
• | Freenome: The Freenome Board and the Freenome Strategic Transaction Committee determined that the Business Combination presents an attractive business opportunity in light of certain factors, including that the Business Combination will expand both the access to capital for Freenome and the range of investors potentially available to Freenome as a public company, and taking into account Freenome’s expected cash resources and need for additional capital to fund the development of its diagnostic tests, and the uniqueness of this particular potential Business Combination, as the negotiated transaction will result in the infusion of capital at the time of Closing. The Freenome Strategic Transaction Committee and Freenome Board also considered the potential detriments of the Business Combination to Freenome, including the possibility that the Business Combination might not be completed in a timely manner or at all, the uncertainty of the potential benefits of the Business Combination being achieved, the costs involved in connection with completing the Business Combination, and the time and effort of Freenome management required to complete the Business Combination. For more information, see “— Freenome’s Reasons for the Business Combination” and various risks described under the section entitled “Risk Factors.” |
• | reviewed a draft of the agreed form, dated November 12, 2025, of the Sponsor Letter Agreement; |
• | reviewed a draft, dated December 3, 2025, of the Business Combination Agreement; |
• | reviewed a draft, dated November 3, 2025, of the Investor Subscription Agreements (the drafts described in these first three bullets, the “Reviewed Transaction Documents”); |
• | reviewed certain publicly available business and financial information relating to PCSC and the Company; |
• | reviewed certain historical financial information and other data relating to the Company that were provided to Scalar by the management of PCSC, approved for our use by PCSC and not publicly available; |
• | reviewed certain management data relating to the business prospects of the Company that were provided to Scalar by the management of PCSC, approved for Scalar’s use by PCSC and not publicly available; |
• | conducted discussions with members of the senior management of the Company concerning the business, operations, historical financial results and financial prospects of the Company and its addressable market and the Business Combination; |
• | reviewed current and historical market prices of the PCSC Class A Shares; |
• | reviewed certain financial and market data of the Company and compared that data with publicly available data for certain other companies similar to Freenome; |
• | reviewed certain pro forma effects relating to the Business Combination, including estimated transaction costs and the effects of anticipated financings, approved for Scalar’s use by PCSC; and |
• | conducted such other financial studies, analyses and investigations, and considered such other information, as Scalar deemed necessary or appropriate. |
• | Licensor enterprise value as of seven days prior to announcement, or “Licensor EV Pre-Announcement”; |
• | Licensor enterprise value as of 30 days post-announcement, or “Licensor EV Post-Announcement”; |
• | The announced nominal value of the potential license payments the licensor could receive pursuant to the license agreement, or “Potential License Payments”; |
• | The change in enterprise value between the Licensor EV Pre-Announcement and the Licensor EV Post-Announcement, or “Change in EV”; and |
• | The Change in EV divided by the Potential License Payments, or “Implied Multiple.” |
• | Freenome’s research and development expense for annual periods, or “R&D Expense”; |
• | The estimated required rate of return on R&D Expense, or “Yearly Return”; |
• | The product of Time Elapsed and Yearly Return, or “Total Expected Return”; |
• | The product of R&D Expense and Total Expected Return, or “Entrepreneurial Incentive”; and |
• | The sum of the R&D Expense and the Entrepreneurial Incentive, or “Cost to Recreate” |
* | All periods begin January 1 of the respective year |
• | The estimated period over which the applicable asset is expected to contribute a company’s future cash flows before becoming obsolete, or “Useful Life”; and |
• | The inverse of the Useful Life, or “Annual Obsolescence” |
• | 100% less the product of Time Elapsed, rounded to the nearest integer, and the Annual Obsolescence, or “Obsolescence Adjustment”; and |
• | The product of the Cost to Recreate and Obsolescence Adjustment, or “Total Cost to Recreate” |
* | All periods begin January 1 of the respective year |
# of shares | Value* | |||||
PCSC Class A Shares | 8,625,000 | $91,550,674 | ||||
PCSC Class B Shares | 2,156,250 | 22,887,668 | ||||
PCSC Class A Private Placement Shares | 286,250 | 3,038,421 | ||||
Company Shares (“Consideration”) | 76,234,625 | 809,197,836 | ||||
Roche Investment Shares | 6,370,313 | 67,618,134 | ||||
* | Value is the product of the # of shares and $10.6145709 |
• | the fact that the Sponsor invested in PCSC an aggregate of $2,887,500, comprised of the $25,000 purchase price for 2,156,250 PCSC Class B Shares, or approximately $0.01 per share, and the $2,862,500 purchase price for 286,250 private placement shares at a purchase price of $10.00 per share. Subsequent to the initial purchase of the PCSC Class B Shares by the Sponsor, the Sponsor transferred 30,000 PCSC Class B Shares, to each of PCSC’s three independent directors, being Mark C. McKenna, Kenneth Song M.D., and Harlan W. Waksal, M.D. Such shares will have a significantly higher value at the time of the Business Combination or be worthless if the Business Combination is not consummated and PCSC is liquidated. Assuming a trading price of $13.58 per share of New Freenome Common Stock (based upon the closing price of the PCSC Class A Shares on the Nasdaq Capital Market on January 6, 2026), such 2,442,500 shares of New Freenome Common Stock that are expected to be issued to our initial shareholders at Closing would have an implied aggregate market value of $33.12 million (based upon the closing price of the PCSC Class A Shares on January 6, 2026). However, given that such shares of New Freenome Common Stock will be subject to certain restrictions, including those described elsewhere in this proxy statement/prospectus, PCSC believes such shares of New Freenome Common Stock have less value. Even if the trading price of the New Freenome Common Stock were as low as approximately $1.19 per share, the aggregate market value of such shares of New Freenome Common Stock held by the initial shareholders would be approximately equal to the initial investment in PCSC by the initial shareholders. Therefore, the Sponsor and its affiliates could earn a positive rate of return on their investments, even if other PCSC shareholders experience a negative rate of return in New Freenome and PCSC’s directors and officers and the Sponsor may have a conflict of interest in determining whether a particular business is an appropriate business with which to effectuate an initial business combination; |
• | the fact that, as a result of the low purchase price paid for the PCSC Class B Shares, if the Business Combination is completed, the Sponsor and PCSC’s independent directors (Messrs. McKenna, Song and Waksal) are likely to be able to make a substantial profit on their investment in PCSC even at a time when the New Freenome Common Stock has lost significant value. Accordingly, the economic interests of the Sponsor and PCSC’s independent directors diverge from the economic interests of public shareholders because the Sponsor and PCSC’s independent directors will realize a gain on its investment from the completion of any business combination while public shareholders will realize a gain only if the post-closing trading price exceeds $10.00 per share; |
• | the fact that the initial shareholders have agreed not to redeem any PCSC Shares held by them in connection with a shareholder vote to approve a Business Combination; |
• | the fact that the initial shareholders have agreed to vote any PCSC Shares owned by them in favor of the Business Combination Proposal; |
• | the fact that the initial shareholders have agreed to waive their rights to liquidating distributions from the trust account with respect to any PCSC Shares (other than public shares subsequently acquired by them) held by them if the Business Combination is not approved and PCSC fails to complete the Business Combination by June 13, 2026; |
• | the fact that the Business Combination Agreement provides for the continued indemnification of PCSC’s existing directors and officers and requires PCSC to purchase, or cause to be purchased, at or prior to the Effective Time, and New Freenome to maintain in effect for a period of six years after the Effective Time, a “tail” policy providing directors’ and officers’ liability insurance coverage for certain PCSC directors and officers after the Business Combination; |
• | the fact that the Sponsor and PCSC’s officers and directors will lose their entire investment in PCSC and will not be reimbursed for any loans extended, fees due or out-of-pocket expenses incurred on PCSC’s behalf related to identifying, investigating, negotiating and completing an initial business combination if the Business Combination is not consummated by June 13, 2026. As of the date of this proxy statement/prospectus, PCSC does not owe the Sponsor any outstanding sums pursuant to any working capital loans, promissory notes, the existing administrative services and indemnification agreement between PCSC and the Sponsor, or otherwise; |
• | the fact that, in connection with the Closing and immediately prior to the Effective Time, the Sponsor may elect to contribute Working Capital Loans, of up to $3,000,000, to PCSC in exchange for Working Capital Shares, which are convertible at the option of the Sponsor into shares of New Freenome Common Stock, at a conversion price of $10.00 per share; |
• | the fact that if the trust account is liquidated, including in the event PCSC is unable to complete an initial business combination within the required time period, the Sponsor has agreed to indemnify PCSC to ensure that the proceeds in the trust account are not reduced below $10.00 per public share, or such lesser per public share amount as is in the trust account, by the claims of prospective target businesses with which PCSC has entered into an acquisition agreement or claims of any third party for services rendered or products sold to PCSC, but only if such a vendor or target business has not executed a waiver of any and all rights to seek access to the trust account; |
• | the fact that if the Business Combination or another business combination is not consummated by June 13, 2026, PCSC will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding PCSC Class A Shares for cash and, subject to the approval of its remaining shareholders and the PCSC Board, liquidating and dissolving; |
• | the fact that the Investor Rights Agreement was entered into with the initial shareholders, the Perceptive PIPE Investor and certain Freenome stockholders, which, among other things, (a) gives the initial shareholders, the Perceptive PIPE Investor and certain Freenome stockholders certain registration rights, including the right to have the offer and sale of their shares of New Freenome Common Stock registered on a resale registration statement to be filed by New Freenome shortly after the consummation of the Business Combination; |
• | the fact that the Sponsor Letter Agreement was executed with the initial shareholders, pursuant to which the initial shareholders, among other things, waive all adjustments to the conversion ratio set forth in the Existing Governing Documents with respect to the PCSC Class B Shares, and agree to be bound by certain transfer restrictions with respect to PCSC Shares prior to the consummation of the Business Combination, in each case subject to the terms and conditions set forth therein. No consideration has been or will be paid to PCSC, Freenome or the initial shareholders in connection with the entry into the Sponsor Letter Agreement; |
• | the fact that the Perceptive PIPE Investor has entered into a subscription agreement to purchase 5,500,000 shares in the PIPE Financing, subject to the terms and conditions set forth in the Subscription Agreement executed by the Perceptive PIPE Investor. For more information on the assumptions underlying the number of shares described in the foregoing as being issuable on the Closing Date, please see “Risk Factors—Risks Related to the Business Combination and PCSC—PCSC shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination. Having a minority share position may reduce the influence that PCSC’s current shareholders have on the management of New Freenome;” |
• | the fact that the Perceptive PIPE Investor, which is an affiliate of the Sponsor and certain of PCSC’s directors and officers, has a fully diluted equity ownership stake in Freenome of 7.89% (representing shares of Series B, C, D and F Freenome Preferred Stock), which, assuming a no redemption scenario, will convert into 5,615,003 shares of New Freenome Common Stock, or an approximately 12.04% equity stake in New Freenome in connection with the Business Combination. PCSC estimates that, at the Closing, if unrestricted and freely tradeable, such shares would be valued at approximately $184.1 million, based on the $13.58 closing price of the PCSC Class A Shares on January 6, 2026. However, given that such shares of New Freenome Common Stock will be subject to certain restrictions, including those described elsewhere in this proxy statement/prospectus, PCSC believes such shares have less value. See the assumptions underlying such ownership percentages described in the section entitled “Beneficial Ownership of Securities” and more information to consider under “Risk Factors—Risks Related to the Business Combination and PCSC—PCSC shareholders will experience immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination. Having a minority share position may reduce the influence that PCSC’s current shareholders have on the management of New Freenome.” Actual number of shares of New Freenome Common Stock issuable on the Closing Date will be determined pursuant to the terms of the Subscription Agreements and the Business Combination Agreement, as applicable; |
• | the fact that Dr. Hukkelhoven, an executive officer of the Perceptive PIPE Investor, is a director of Freenome; |
• | the fact that Joseph Edelman, Adam Stone, Michael Altman and Sam Cohn are affiliated with the Perceptive PIPE Investor; |
• | the right of the Sponsor and the Perceptive PIPE Investor to hold shares of New Freenome Common Stock following the Business Combination, subject to the terms and conditions of the lock-up restrictions; and |
• | the fact that PCSC may be entitled to distribute or pay over funds held by PCSC outside the Trust Account to the Sponsor or any of its Affiliates prior to the Closing. |
Securities to be Received | Other Compensation | |||||
The Sponsor | Assuming the Aggregate Transaction Proceeds Condition Redemptions Scenario: (i) 2,066,250 shares of New Freenome Common Stock upon the exchange of 2,066,250 PCSC Class B Shares in the Domestication, which were initially purchased prior to PCSC’s initial public offering for approximately $0.01 per share and (ii) 286,250 shares of New Freenome Common Stock upon the exchange of 286,250 PCSC Class A Shares in the Domestication, which were initially purchased in a private placement that closed concurrently with PCSC’s initial public offering at a price of $10.00 per | Reimbursement for Working Capital Loans to PCSC. To date, PCSC has no outstanding borrowings under Working Capital Loans. $15,000 per month through the Closing for office space, secretarial and administrative services. As of December 31, 2025, PCSC incurred $180,000 in fees for these services, of which such amount is included in accrued expenses in PCSC’s balance sheet as of December 31, 2025. Continued indemnification and the continuation of directors’ and officer’s liability insurance after the Business Combination. | ||||
• | Prominence, Predictability, and Flexibility of Delaware Law. For many years Delaware has followed a policy of encouraging incorporation in its state and, in furtherance of that policy, has been a leader in adopting, construing, and implementing comprehensive, flexible corporate laws responsive to the legal and business needs of corporations organized under its laws. Many corporations have chosen Delaware initially as a state of incorporation or have subsequently changed corporate domicile to Delaware. Because of Delaware’s prominence as the state of incorporation for many major corporations, both the legislature and courts in Delaware have demonstrated the ability and a willingness to act quickly and effectively to meet changing business needs. The DGCL is frequently revised and updated to accommodate changing legal and business needs and is more comprehensive, widely used and interpreted than other state corporate laws. This favorable corporate and regulatory environment is attractive to businesses such as Freenome’s. |
• | Well-Established Principles of Corporate Governance. There is substantial judicial precedent in the Delaware courts as to the legal principles applicable to measures that may be taken by a corporation and to the conduct of a company’s board of directors, such as under the business judgment rule and other standards. Because the judicial system is based largely on legal precedents, the abundance of Delaware case law provides clarity and predictability to many areas of corporate law. We believe such clarity would be advantageous to New Freenome, its board of directors and management to make corporate decisions and take corporate actions with greater assurance as to the validity and consequences of those decisions and actions. Further, investors and securities professionals are generally more familiar with Delaware corporations, and the laws governing such corporations, increasing their level of comfort with Delaware corporations relative to other jurisdictions. The Delaware courts have developed considerable expertise in dealing with corporate issues, and a substantial body of case law has developed construing Delaware law and establishing public policies with respect to corporate legal affairs. Moreover, Delaware’s vast body of law on the fiduciary duties of directors provides appropriate protection for New Freenome’s stockholders from possible abuses by directors and officers. |
• | Increased Ability to Attract and Retain Qualified Directors. Reincorporation from the Cayman Islands to Delaware is attractive to directors, officers, and stockholders alike. New Freenome’s incorporation in Delaware may make New Freenome more attractive to future candidates for our board of directors, because many such candidates are already familiar with Delaware corporate law from their past business experience. To date, we have not experienced difficulty in retaining directors or officers, but directors of public companies are exposed to significant potential liability. Thus, candidates’ familiarity and comfort with Delaware laws—especially those relating to director indemnification (as discussed below)—draw such qualified candidates to Delaware corporations. Our board of directors therefore believes that providing the benefits afforded directors by Delaware law will enable New Freenome to compete more effectively with other public companies in the recruitment of talented and experienced directors and officers. Moreover, Delaware’s vast body of law on the fiduciary duties of directors provides appropriate protection for our stockholders from possible abuses by directors and officers. |
1. | Name Change: Change our name from Perceptive Capital Solutions Corp to “Freenome, Inc.” |
2. | Corporate Purpose: Provide that the purpose of the post-combination company is “to engage in any lawful act or activity for which corporations may be organized under the DGCL” and to delete all provisions pertaining to a blank-check company. |
3. | Authorized Shares: Provide for a single class of common stock of New Freenome, entitled to one vote for each share of common stock held of record by such holder on all matters on which stockholders generally are entitled to vote (other than certain amendments relating to preferred stock) and provide for a capital structure of Freenome that will enable it to continue as an operating company governed by the DGCL. The capital structure of PCSC will be changed from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares and 1,000,000 preference shares to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated New Freenome preferred stock. |
4. | Exclusive Forum Provisions: Establish that, unless New Freenome consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of New Freenome, (ii) any action asserting a claim of, or a claim based on, a breach of a fiduciary duty owed by any current or former director, officer or other employee or stockholder of New Freenome to New Freenome or New Freenome’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Proposed Certificate of Incorporation or the Proposed Bylaws (including the interpretation, validity or enforceability thereof) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (iv) any action asserting a claim governed by the internal affairs doctrine; provided, however, that the exclusive forum provision will not apply to any causes of action arising under the Securities Act, or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. Unless New Freenome consents in writing to the selection of an alternative forum, the federal district courts of the U.S. shall be the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act, the Exchange Act, or the respective rules and regulations promulgated thereunder. |
5. | Adoption of Supermajority Vote Requirement in certain instances: Establish that the Proposed Bylaws may be amended by the New Freenome Board or by the stockholders by the affirmative vote of the holders of at least two-thirds of the voting power of the outstanding shares of capital stock entitled to vote on such amendment, voting as a single class; provided that if the New Freenome Board recommends that stockholders approve such amendment, it shall only require a majority vote. |
6. | Removal of Directors: Provide that any director may be removed only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, subject to the rights, if any, of any series of New Freenome preferred stock. |
7. | Action by Written Consent of the Stockholders: Eliminate the right of stockholders to act by written consent. |
8. | Provisions Related to Status as Blank Check Company: Provide for certain amendments to better reflect New Freenome’s existence as an operating company. For example, the Proposed Certificate of Incorporation would remove the requirement to dissolve New Freenome and allow it to continue as a corporate entity with perpetual existence following the consummation of the Business Combination. |
1. | Names Change: Currently, our name is Perceptive Capital Solutions Corp. The PCSC Board believes the name of the post-combination company should more closely align with the name of the post-Business Combination operating business and therefore has proposed the name change. |
2. | Corporate Purpose: The PCSC Board believes this change is appropriate to remove language applicable to a blank check company. |
3. | Authorized Shares: The principal purpose of this proposal is to provide for an authorized capital structure of New Freenome that will enable it to continue as an operating company governed by the DGCL. The PCSC Board believes that it is important for New Freenome to have available for issuance a number of authorized shares of common stock and preferred stock sufficient to support its growth and to provide flexibility for future corporate needs. |
4. | Exclusive Forum Provisions: Adopting Delaware as the exclusive forum for certain stockholder litigation is intended to assist New Freenome in avoiding multiple lawsuits in multiple jurisdictions regarding the same matter. The ability to require such claims to be brought in a single forum will help to assure consistent consideration of the issues, the application of a relatively known body of case law and level of expertise and should promote efficiency and cost-savings in the resolutions of such claims. The PCSC Board believes that the Delaware courts are best suited to address disputes involving such matters given that after the Domestication, New Freenome will be incorporated in Delaware. Delaware law generally applies to such matters and the Delaware courts have a reputation for expertise in corporate law matters. Delaware offers a specialized Court of Chancery to address corporate law matters, with streamlined procedures and processes, which help provide relatively quick decisions. This accelerated schedule can minimize the time, cost and uncertainty of litigation for all parties. The Court of Chancery has developed considerable expertise with respect to corporate law issues, as well as a substantial and influential body of case law construing Delaware’s corporate law and long-standing precedent regarding corporate governance. This provides stockholders and the post-combination company with more predictability regarding the outcome of intra-corporate disputes. In the event the Court of Chancery does not have jurisdiction, the other state or, if applicable, federal courts located in Delaware would be the most appropriate forums because these courts have more expertise on matters of Delaware law compared to other jurisdictions. The choice of forum provision is intended to apply to the fullest extent permitted by law to the above-specified types of actions and proceedings, including any derivative actions asserting claims under state law or the federal securities laws, and is intended to require, in each case, to the fullest extent permitted by law, that (i) any Securities Act claims be brought in the federal district courts of the U.S. in accordance with the choice of forum provision and (ii) suits brought to enforce any duty or liability created by Exchange Act be brought in the U.S. District Court for the District of Delaware. The provision does not apply to any direct claims brought by New Freenome’s shareholders on their own behalf, or on behalf of any class of similarly situated shareholders, under the Exchange Act. In addition, this amendment would promote judicial fairness and avoid conflicting results, as well as make New Freenome’s defense of applicable claims less disruptive and more economically feasible, principally by avoiding duplicative discovery. |
5. | Adoption of Supermajority Vote Requirement in certain instances: The Existing Governing Documents provide that amendments may be made by a special resolution under the Cayman Companies Act, being the affirmative vote of at least two-thirds of the issued and outstanding PCSC Shares represented in person or by proxy and entitled to vote thereon and who vote at a general meeting (provided that Article 17.5 may only be amended by a special resolution passed by holders representing at least two-thirds of the outstanding PCSC Class B Shares and any only the Class B Shareholders carry the right to vote on any special resolution required to amend the constitutional documents of PCSC or to adopt new constitutional documents of PCSC in each case as a result of PCSC approving a transfer by way of continuation in a jurisdiction outside the Cayman Islands). |
6. | Removal of Directors: The Existing Governing Documents provide that before a business combination, holders of PCSC Class B Shares may appoint or remove any director, and that after a business combination, shareholders may by ordinary resolution appoint or remove any director. Under the DGCL, unless a company’s certificate of incorporation provides otherwise, removal of a director only for cause is automatic with a classified board, provided that any director may be removed only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, subject to the rights, if any, of any series of preferred stock. The PCSC Board believes that such a standard will (i) increase board continuity and the likelihood that experienced board members with familiarity of New Freenome’s business operations would serve on the board at any given time and (ii) make it more difficult for a potential acquiror or other person, group or entity to gain control of the New Freenome Board. |
7. | Action by Written Consent of the Stockholders: Under the Proposed Certificate of Incorporation, New Freenome’s stockholders will have the ability to propose items of business (subject to the restrictions set forth therein) at duly convened stockholder meetings. Eliminating the right of stockholders to act by written consent limits the circumstances under which stockholders can act on their own initiative to remove directors, or alter or amend New Freenome’s governing documents outside of a duly called special or annual meeting of the stockholders of New Freenome. Further, the PCSC Board believes continuing to limit stockholders’ ability to act by written consent will (i) reduce the time and effort the New Freenome Board and management would need to devote to stockholder proposals, which time and effort could distract New Freenome’s directors and management from other important company business and (ii) facilitate transparency and fairness by allowing all stockholders to consider, discuss, and vote on pending stockholder actions. In addition, the elimination of the stockholders’ ability to act by written consent may have certain anti-takeover effects by forcing a potential acquirer to take control of the board of directors only at a duly called special or annual meeting. However, this proposal is not in response to any effort of which PCSC is aware to obtain control of New Freenome, and PCSC and its management do not presently intend to propose other anti-takeover measures in future proxy solicitations. Further, the PCSC Board does not believe that the effects of the elimination of stockholder action by written consent will create a significant impediment to a tender offer or other effort to take control of New Freenome. Inclusion of these provisions in the Proposed Certificate of Incorporation might also increase the likelihood that a potential acquirer would negotiate the terms of any proposed transaction with the board of directors and thereby help protect stockholders from the use of abusive and coercive takeover tactics. |
8. | Provisions Related to Status as Blank Check Company: The PCSC Board believes that making corporate existence perpetual is desirable to reflect the Business Combination with Freenome. Additionally, perpetual existence is the usual period of existence for corporations, and the PCSC Board believes that it is the most appropriate period for PCSC following the Business Combination. The elimination of certain provisions related to PCSC’s status as a blank check company is desirable because these provisions will serve no purpose following the Business Combination. For example, the Proposed Certificate of Incorporation does not include the requirement to dissolve New Freenome and allow it to continue as a corporate entity with perpetual existence following the consummation of the Business Combination. Perpetual existence is the usual period of existence for public corporations, and the PCSC Board believes it is the most appropriate period for New Freenome following the Business Combination. In addition, certain other provisions in PCSC’s current governing documents require that proceeds from PCSC’s initial public offering be held in the trust account until a business combination or liquidation of PCSC has occurred. These provisions cease to apply once the Business Combination is consummated and are therefore not included in the Proposed Certificate of Incorporation. |
• | Proposal A — to amend the Existing Governing Documents to authorize the change in the authorized capital stock of PCSC from (i) 479,000,000 PCSC Class A Shares, 20,000,000 PCSC Class B Shares, and 1,000,000 preference shares, par value of $0.0001 per share, to (ii) 1,000,000,000 shares of New Freenome Common Stock and 10,000,000 shares of undesignated preferred stock, par value $0.0001 per share. |
• | Proposal B — to amend the Existing Governing Documents to authorize adopting Delaware as the exclusive forum for certain stockholder litigation. |
• | Proposal C — to amend the Existing Governing Documents to approve provisions requiring the affirmative vote of at least (i) two-thirds of the outstanding shares of capital stock entitled to vote to adopt, amend or repeal the Proposed Bylaws and (ii) a majority of New Freenome’s then outstanding common stock (except where a lower threshold is provided by the DGCL) for amendments to the Proposed Certificate of Incorporation. |
• | Proposal D — to amend the Existing Governing Documents to approve provisions permitting the removal of a director only for cause and only by the affirmative vote of not less than two-thirds of the outstanding shares entitled to vote at an election of directors, voting together as a single class. |
• | Proposal E — to amend the Existing Governing Documents to approve provisions requiring stockholders to take action at an annual or special meeting and prohibiting stockholder action by written consent in lieu of a meeting. |
• | Proposal F — to amend the Existing Governing Documents to authorize (1) changing the corporate name from “Perceptive Capital Solutions Corp” to “Freenome, Inc.,” (2) making New Freenome’s corporate existence perpetual, and (3) removing certain provisions related to PCSC’s status as a blank check company that will no longer be applicable upon consummation of the Business Combination.” |
• | an individual citizen or resident of the U.S.; |
• | a corporation (or other entity treated as a corporation) that is created or organized (or treated as created or organized) in or under the laws of the U.S., any state thereof or the District of Columbia; |
• | an estate whose income is subject to U.S. federal income taxation regardless of its source; or |
• | a trust if (i) a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust or (ii) it has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person. |
• | financial institutions or financial services entities; |
• | broker-dealers; |
• | persons that are subject to the mark-to-market accounting rules under Section 475 of the Code; |
• | tax-exempt entities; |
• | governments or agencies or instrumentalities thereof; |
• | insurance companies; |
• | regulated investment companies; |
• | real estate investment trusts; |
• | certain expatriates or former long-term residents of the U.S.; |
• | persons that acquired Public Shares, shares of Freenome Common Stock, or shares of New Freenome Common Stock pursuant to an exercise of employee options, in connection with employee incentive plans or otherwise as compensation; |
• | persons that hold Public Shares, shares of Freenome Common Stock, or shares of New Freenome Common Stock as part of a straddle, constructive sale, hedging, redemption or other integrated transaction; |
• | persons whose functional currency is not the U.S. dollar; |
• | controlled foreign corporations; |
• | passive foreign investment companies; |
• | persons required to accelerate the recognition of any item of gross income with respect to Public Shares, shares of Freenome Common Stock, or New Freenome Common Stock as a result of such income being recognized on an applicable financial statement; |
• | persons who actually or constructively own 5% or more of the shares of PCSC or New Freenome by vote or value (except as specifically provided below); |
• | foreign corporations with respect to which there are one or more United States shareholders within the meaning of Treasury Regulation Section 1.367(b)-3(b)(1)(ii); or |
• | the Sponsor or its affiliates. |
(i) | a statement that the Domestication is a Section 367(b) exchange; |
(ii) | a complete description of the Domestication; |
(iii) | a description of any stock, securities or other consideration transferred or received in the Domestication; |
(iv) | a statement describing the amounts required to be taken into account for U.S. federal income tax purposes; |
(v) | a statement that the U.S. Holder is making the election and that includes (A) a copy of the information that the U.S. Holder received from PCSC establishing and substantiating the “all earnings and profits amount” with respect to the U.S. Holder’s Public Shares, and (B) a representation that the U.S. Holder has notified PCSC (or New Freenome) that the U.S. Holder is making the election; and |
(vi) | certain other information required to be furnished with the U.S. Holder’s tax return or otherwise furnished pursuant to the Code or the Treasury Regulations thereunder. |
• | U.S. Holders will not recognize gain or loss on the exchange of shares of Freenome Common Stock solely for shares of New Freenome Common Stock in the Integrated Merger; |
• | U.S. Holders who receive cash in lieu of fractional shares of New Freenome Common Stock in the Integrated Merger generally will be treated as having received such fractional shares in the Integrated Merger and then as having received cash in redemption of such fractional shares. Gain or loss will be recognized based on the difference between the amount of cash received in lieu of the fractional share of New Freenome Common Stock and the portion of the U.S. Holder’s adjusted tax basis in the shares of Freenome Common Stock surrendered which is allocable to the fractional share of New Freenome Common Stock, and adjusted as described above; |
• | The aggregate tax basis of the shares of New Freenome Common Stock received by a U.S. Holder in the Integrated Merger generally will be the same as the aggregate tax basis of shares of Freenome Common Stock surrendered in exchange therefor, decreased by the amount of cash received and increased by the amount of gain recognized by the U.S. Holder in the Integrated Merger; and |
• | The holding period of New Freenome Common Stock received by a U.S. Holder in the Integrated Merger will include the holding period of the shares of Freenome Common Stock surrendered by the U.S. Holder in the Integrated Merger. |
• | the gain is effectively connected with a trade or business of the Non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a United States permanent establishment or fixed base of the Non-U.S. Holder); |
• | the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more in the taxable year of the disposition, and certain other conditions are met; or |
• | New Freenome is or has been a “United States real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of disposition or the Non-U.S. Holder’s holding period for such securities disposed of, and either (A) New Freenome Common Stock is not considered to be regularly traded on an established securities market or (B) such Non-U.S. Holder has owned or is deemed to have owned, at any time during the shorter of the five-year period preceding such disposition and such Non-U.S. Holder’s holding period more than 5% of outstanding New Freenome Common Stock. There can be no assurance that New Freenome Common Stock will be treated as regularly traded on an established securities market for this purpose. |
(i) | Each share of Freenome common stock (collectively, “Freenome Common Shares”) issued and outstanding as of immediately prior to the Effective Time (including converted preferred shares, excluding treasury shares and shares subject to appraisal rights) will be canceled and converted into New Freenome Common Stock based on an exchange ratio, which is based on an implied Freenome base equity value of $725,000,000 and subject to certain adjustments as set forth in the Business Combination Agreement (the “Exchange Ratio”); |
(ii) | Each option to purchase Freenome Common Shares (each, a “Freenome Option”), whether vested or unvested, will be canceled in exchange for options to purchase New Freenome Common Stock under the equity incentive plan to be adopted by PCSC in advance of the Closing (the “New Freenome Equity Incentive Plan”) adjusted for the Exchange Ratio and exercise price, and subject to prior terms (vesting, expiration, forfeiture); and |
(iii) | Each restricted stock unit award that is outstanding with respect to Freenome Common Shares (each, a “Freenome RSU Award”) will be canceled and replaced with a restricted stock unit award under the New Freenome Equity Incentive Plan, settling in New Freenome Common Stock per an allocation schedule, generally subject to prior terms. |
• | Freenome’s existing shareholders will have the greatest voting interest in the combined entity under the no redemption and maximum redemption scenarios with over 63% of the voting interest in each scenario; |
• | Freenome will have the ability to designate a majority of the initial members of New Freenome’s Board; |
• | Freenome’s senior management will be the senior management of the combined entity; |
• | Freenome is the larger entity based on historical operating activity and has the larger employee base; and |
• | The post-combined company will assume a Freenome branded name: “Freenome, Inc.” |
• | The PIPE Financing; |
• | The conversion of Roche Convertible Note (including principal and accrued interest) into shares of New Freenome Common Stock; |
• | Incremental compensation expense associated with the grant of Anti-Dilution Equity Awards and vested restricted stock units; |
• | The conversion of each issued and outstanding PCSC Class A Share and PCSC Class B Share and each outstanding preference share of PCSC (if any) into New Freenome Common Stock; and |
• | The issuance of New Freenome Common Stock in connection with the Mergers, subject to the redemption scenarios described below. |
• | Assuming No Redemptions: This presentation assumes that none of the holders of PCSC’s Class A Shares exercise redemption rights with respect to such shares. Therefore, as described above, holders of PCSC Class A Shares as of immediately prior to the Closing shall receive a number of shares of New Freenome Common Stock. |
• | Assuming Maximum Redemptions: This presentation assumes that holders of 6,568,122 PCSC Class A Shares exercise redemption rights with respect to such shares for their pro rata share of the funds in the Trust Account. As described above, the Business Combination Agreement includes a condition that, at the Closing, aggregate transaction proceeds be greater than or equal to $250.0 million in cash, including (i) cash from the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with any redemption), plus (ii) the aggregate amount of cash that has been funded pursuant to the PIPE, minus the Unpaid PCSC expenses. Thus, the redemption of 6,568,122 PCSC Class A Shares represents the estimated maximum number of PCSC Class A Shares that can be redeemed while still achieving the minimum aggregate transaction proceeds of $250.0 million. |
(1) | Amount excludes 2,717,005 Freenome restricted stock units that will vest following the Closing. Includes 5,611,655 shares of New Freenome Common Stock issued to the Perceptive PIPE Investor upon conversion of Freenome capital stock. |
(2) | Includes 2,066,250 PCSC Class B Shares and 286,250 PCSC Class A private placement shares held by the Sponsor and 90,000 PCSC Class B Shares held by PCSC independent directors. |
(3) | Includes 5,500,000 PIPE Shares issued to the Perceptive PIPE Investor, 5,000,000 PIPE Shares issued to an existing Freenome equity holder and 13,500,000 PIPE Shares issued to third-party PIPE Investors. |
Freenome (Historical) | PCSC (Historical) | Transaction Accounting Adjustments (Assuming No Redemptions) (Note 2) | Pro Forma Combined (Assuming No Redemptions) | Additional Transaction Accounting Adjustments (Assuming Maximum Redemptions) (Note 2) | Pro Forma Combined (Assuming Maximum Redemptions) | |||||||||||||||||||
Assets | ||||||||||||||||||||||||
Cash and cash equivalents | $78,558 | $865 | $91,872 | (a) | $390,261 | (69,963) | (l) | $320,298 | ||||||||||||||||
(3,450) | (b) | |||||||||||||||||||||||
240,000 | (c) | |||||||||||||||||||||||
(17,584) | (g) | |||||||||||||||||||||||
Short-term marketable securities | 138,106 | — | 138,106 | 138,106 | ||||||||||||||||||||
Accounts and other receivables | 1,307 | — | 1,307 | 1,307 | ||||||||||||||||||||
Prepaid expenses and other current assets | 8,520 | 43 | 8,563 | 8,563 | ||||||||||||||||||||
Total current assets | 226,491 | 908 | 310,838 | 538,237 | (69,963) | 468,274 | ||||||||||||||||||
Cash and investments held in Trust Account | — | 91,872 | (91,872) | (a) | — | — | ||||||||||||||||||
Property and equipment, net | 155,776 | — | 155,776 | 155,776 | ||||||||||||||||||||
Operating lease right-of-use asset, net | 97,055 | — | 97,055 | 97,055 | ||||||||||||||||||||
Intangible assets, net | 3,300 | — | 3,300 | 3,300 | ||||||||||||||||||||
Goodwill | 10,513 | — | 10,513 | 10,513 | ||||||||||||||||||||
Other long-term assets | 4,800 | — | (4,520) | (g) | 280 | 280 | ||||||||||||||||||
Restricted cash | 9,118 | — | 9,118 | 9,118 | ||||||||||||||||||||
Total assets | $507,053 | $92,780 | $214,446 | $814,279 | $(69,963) | $744,316 | ||||||||||||||||||
Liabilities | ||||||||||||||||||||||||
Accounts payable | $6,084 | $— | (2,683) | (g) | $3,401 | $3,401 | ||||||||||||||||||
Accrued compensation and other related benefits | 13,424 | — | 13,424 | 13,424 | ||||||||||||||||||||
Accrued expenses and other current liabilities | 3,783 | 2,254 | (3,235) | (g) | 2,802 | 2,802 | ||||||||||||||||||
Deferred revenue | 7,123 | 7,123 | 7,123 | |||||||||||||||||||||
Current portion of lease liabilities | 10,114 | — | 10,114 | 10,114 | ||||||||||||||||||||
Total current liabilities | 40,528 | 2,254 | (5,918) | 36,864 | — | 36,864 | ||||||||||||||||||
Lease liabilities, net of current portion | 199,015 | — | 199,015 | 199,015 | ||||||||||||||||||||
Convertible note, at fair value | 41,600 | — | 41,600 | 41,600 | ||||||||||||||||||||
Convertible note, related party | 60,895 | (60,895) | (h) | — | — | |||||||||||||||||||
Deferred revenue, net of current portion | 49,138 | 49,138 | 49,138 | |||||||||||||||||||||
Other long-term liabilities | 15,433 | 15,433 | 15,433 | |||||||||||||||||||||
Deferred underwriting compensation | — | 3,450 | (3,450) | (b) | — | — | ||||||||||||||||||
Total liabilities | 406,609 | 5,704 | (70,263) | 342,050 | — | 342,050 | ||||||||||||||||||
For the Year Ended December 31, 2025 | ||||||||||||||||||||||||
Freenome (Historical) | PCSC (Historical) | Transaction Accounting Adjustments (Assuming No Redemptions) (Note 2) | Pro Forma Combined (Assuming No Redemptions) | Additional Transaction Accounting Adjustments (Assuming Maximum Redemptions) (Note 2) | Pro Forma Combined (Assuming Maximum Redemptions) | |||||||||||||||||||
Revenue: | ||||||||||||||||||||||||
License and collaboration revenue | $27,139 | $— | $27,139 | $27,139 | ||||||||||||||||||||
Service and other revenue | 3,270 | — | 3,270 | 3,270 | ||||||||||||||||||||
Total revenue | 30,409 | — | — | 30,409 | — | 30,409 | ||||||||||||||||||
Operating costs and expenses: | ||||||||||||||||||||||||
Cost of services | 1,944 | — | 1,944 | 1,944 | ||||||||||||||||||||
Research and development | 197,117 | — | 16,289 | (cc) | 217,466 | 217,466 | ||||||||||||||||||
4,060 | (dd) | |||||||||||||||||||||||
General and administrative | 54,817 | 2,981 | (180) | (aa) | 79,484 | (138) | (ee) | 79,346 | ||||||||||||||||
16,513 | (cc) | |||||||||||||||||||||||
4,115 | (dd) | |||||||||||||||||||||||
1,238 | (ee) | |||||||||||||||||||||||
Total operating costs and expenses | 253,878 | 2,981 | 42,035 | 298,894 | (138) | 298,756 | ||||||||||||||||||
Loss from operations | (223,469) | (2,981) | (42,035) | (268,485) | 138 | (268,347) | ||||||||||||||||||
Interest and investment income, net | 6,914 | — | 6,914 | 6,914 | ||||||||||||||||||||
Interest expense | (2,820) | — | 1,548 | (ff) | (1,272) | (1,272) | ||||||||||||||||||
Other income (expense), net | 32 | — | 32 | 32 | ||||||||||||||||||||
Interest from investments held in Trust Account | — | 3,821 | (3,821) | (bb) | — | — | ||||||||||||||||||
Unrealized loss on investments held in trust | — | (3) | 3 | (bb) | — | — | ||||||||||||||||||
Net loss attributable to common stockholders | $(219,343) | $837 | $(44,305) | $(262,811) | $138 | $(262,673) | ||||||||||||||||||
Net income (loss) per share, basic | $(8.28) | $0.08 | $(2.28) | $(2.42) | ||||||||||||||||||||
Weighted average shares outstanding, basic | 26,497,083 | 11,067,500 | 115,293,996 | 108,725,874 | ||||||||||||||||||||
Net income (loss) per share, diluted | $(8.28) | $0.08 | $(2.28) | $(2.42) | ||||||||||||||||||||
Weighted average shares outstanding, diluted | 26,497,083 | 11,067,500 | 115,293,996 | 108,725,874 | ||||||||||||||||||||
1. | Basis of Presentation |
• | Freenome’s audited consolidated balance sheet as of December 31, 2025 and the related notes included elsewhere in this proxy statement/prospectus; and |
• | PCSC’s audited consolidated balance sheet as of December 31, 2025 and the related notes included elsewhere in this proxy statement/prospectus. |
• | Freenome’s audited consolidated statement of operations for the year ended December 31, 2025 and the related notes included elsewhere in this proxy statement/prospectus; and |
• | PCSC’s audited consolidated statement of operations for the year ended December 31, 2025 and the related notes included elsewhere in this proxy statement/prospectus. |
2. | Transaction Accounting Adjustments to Unaudited Pro Forma Condensed Combined Financial Information |
(a) | Reflects the reclassification of cash and investments held in the Trust Account that becomes available following the Business Combination to cash and cash equivalents, assuming no redemptions. |
(b) | Reflects the payment of $3.5 million in deferred underwriters’ compensation subject to an agreement with the underwriters. |
(c) | Reflects proceeds of $240.0 million from the issuance and sale of 24,000,000 shares of New Freenome Common Stock at $10.00 per share in the PIPE Financing pursuant to the Subscription Agreements. |
(d) | Reflects the reclassification of $91.9 million of PCSC Class A Shares subject to possible redemption to permanent equity, assuming no redemptions. |
(e) | Reflects the conversion of 2,156,250 PCSC Class B Shares into 2,156,250 shares of New Freenome Common Stock. |
(f) | Represents the exchange of 8,911,250 PCSC Class A Shares for 8,911,250 shares of New Freenome Common Stock, assuming no redemptions. |
(g) | Represents preliminary estimated transaction costs to be incurred by Freenome and PCSC of approximately $10.0 million and $8.5 million, respectively, for legal, financial advisory and other professional fees. PCSC’s estimated transaction costs exclude the deferred underwriting fees as described in Note 2(b) above. |
• | $0.8 million was deferred in other long-term assets and paid by Freenome as of December 31, 2025; |
• | $1.0 million was deferred in other long-term assets and accrued in accrued expenses and other current liabilities as of December 31, 2025; |
• | $2.7 million was deferred in other long-term assets and in accounts payable as of December 31, 2025; |
• | $9.2 million was reflected as a reduction of cash, which represents Freenome’s preliminary estimated transaction costs less the amounts previously paid by Freenome; |
• | $10.0 million were capitalized and offset against the proceeds from the Business Combination and reflected as a decrease in additional paid-in capital. |
• | $2.2 million was accrued by PCSC in accrued expenses and other current liabilities and recognized as expense as of December 31, 2025; |
• | $8.5 million was reflected as a reduction of cash; |
• | $4.1 million represents equity issuance costs related to the PIPE financing described in Note 2(c) above and reflected as a decrease in additional paid-in capital; and |
• | $2.1 million was reflected as an adjustment to accumulated deficit, which represents the total estimated PCSC transaction costs less: (i) $4.1 million capitalized and offset against the proceeds from the PIPE investment; and (ii) $2.2 million previously recognized by PCSC as of December 31, 2025. |
(h) | Reflects the conversion of the Roche Convertible Note and accrued interest into 6,420,139 shares of New Freenome Common Stock in connection with the Closing. |
(i) | Reflects the recapitalization of Freenome’s equity consisting of 26,267,598 shares of common stock and 212,541,832 shares of redeemable convertible preferred stock into 71,089,352 shares of New Freenome Common Stock. |
(j) | Reflects the elimination of PCSC’s historical accumulated deficit after recording the transaction costs to be incurred by PCSC as described in Note 2(g) above. |
(k) | Represents the recognition of stock-based compensation expense associated with Freenome restricted stock units, the vesting of which is conditioned on the satisfaction of a service condition and a liquidity event requirement, which is expected to be satisfied no later than six months following the Closing. These costs expensed through Accumulated deficit are included in the unaudited pro forma condensed combined statement of operations for the year ended December 31, 2025 as discussed in Note 2(cc) below. |
(l) | Represents the maximum redemption of 6,568,122 PCSC Class A Shares for approximately $70.0 million. |
(aa) | Represents pro forma adjustment to eliminate historical expenses related to PCSC’s administrative, financial and support services paid to the Sponsor, which will terminate upon consummation of the Business Combination. |
(bb) | Represents pro forma adjustment to eliminate interest and unrealized gain (loss) from investments held in Trust Account. |
(cc) | Represents the recognition of stock-based compensation expense associated with Freenome restricted stock units that, on a pro forma basis, will have vested at the Closing. These costs are reflected as if incurred on January 1, 2025, the date the Business Combination occurred for purposes of the unaudited pro forma condensed combined statements of operations. This is a non-recurring item. |
(dd) | Reflects the amortization of stock-based compensation expense associated with Freenome’s unvested restricted stock units, which are subject to vesting based upon both a service-based requirement and a liquidity event requirement. At the Closing the liquidity event requirement will have been meet and Freenome will amortize stock-based compensation expense associated with the unvested restricted stock units over the remaining service period. |
(ee) | Reflects the recognition of stock-based compensation expense associated with the Anti-Dilution Equity Awards that will be granted following the Business Combination, pursuant to the Elliott Offer Letter. The terms of the Elliott Offer Letter provide that an Anti-Dilution Option grant and an Anti-Dilution RSU grant will be made such that the aggregate number of shares underlining outstanding option awards and RSU awards issued to the employee are equal to 0.5% and 0.5%, respectively, of the fully-diluted capitalization of New Freenome following the Closing. The estimated number of Anti-Dilution Options to be granted are 295,660 options assuming no redemptions, or 262,819 options assuming maximum redemptions. The estimated number of Anti-Dilution RSUs to be granted are 295,660 RSUs assuming no redemptions, or 262,819 RSUs assuming maximum redemptions. The strike price of the Anti-Dilution Option will be equal to the fair market value of the common stock on the date the new Freenome’s Board approves that grant. The other terms and conditions of the Anti-Dilution Option and Anti-Dilution RSUs, including the vesting commencement date and vesting schedule will be the same as the Initial Option and Initial RSU Award provided for in the employment agreement. |
(ff) | Reflects the elimination of interest expense related to the Roche Convertible Note, which will be converted into shares of New Freenome Common Stock as described in Note 2(h) above. |
(gg) | No income tax adjustment is reflected for the year ended December 31, 2025 based on Freenome’s estimated annual effective tax rate for the year ending December 31, 2025, and Freenome having a full valuation allowance on its net deferred tax asset. |
3. | Loss per Share |
(1) | Includes 2,717,005 shares underlying Freenome restricted stock units that will vest six months following the Closing as the issuance of shares will no longer be contingent on any conditions except the passage of time. Includes 5,611,655 shares of New Freenome Common Stock issued to the Perceptive PIPE Investor upon conversion of Freenome capital stock. |
(2) | Includes 2,066,250 PCSC Class B Shares and 286,250 PCSC Class A private placement shares held by the Sponsor and 90,000 PCSC Class B Shares held by PCSC independent directors. |
(3) | Includes 5,500,000 PIPE Shares issued to the Perceptive PIPE Investor, 5,000,000 PIPE Shares issued to an existing Freenome equity holder and 13,500,000 PIPE Shares issued to third-party PIPE Investors. |
(4) | The pro forma weighted average shares, basic and diluted exclude the following because including them would be antidilutive: |
• | 3,333,333 shares issuable upon conversion of the Exact Sciences Note; |
• | 8,252,587 unexercised Freenome stock options; |
• | 1,574,825 unvested Freenome restricted stock units that remain subject to future service; and |
• | 14,628 unexercised Freenome warrants. |
* | See table below for a reconciliation of the number of shares. |
** | See table below for the calculation of the net tangible book value per share. |
Denominator Adjustments | No Redemption Scenario(1) | 25% Redemptions Scenario(2) | 50% Redemptions Scenario(3) | Aggregate Transaction Proceeds Condition Redemptions Scenario(4) | ||||||||
Shares outstanding held by PCSC shareholders as of December 31, 2025 | 11,067,500 | 11,067,500 | 11,067,500 | 11,067,500 | ||||||||
Adjustment to reflect assumed redemption of PCSC Class A Shares | — | (2,156,250) | (4,312,500) | (6,568,122) | ||||||||
Adjustment to reflect shares issuable to PIPE Investors | 24,000,000 | 24,000,000 | 24,000,000 | 24,000,000 | ||||||||
PCSC shareholders and PIPE Investors, after the redemption of PCSC Shares | 35,067,500 | 32,911,250 | 30,755,000 | 28,499,378 | ||||||||
(1) | This scenario assumes that no public shares are redeemed. This scenario further assumes the closing of the PIPE Financing of $240.0 million, the reclassification of unredeemed public shares of PCSC to permanent equity of $91.9 million and payment of the estimated transaction costs of PCSC of $6.2 million, net of associated liabilities of $5.7 million. |
(2) | This scenario assumes that 2,156,250 public shares, or 25% of the Public Shares subject to redemption, are redeemed for an aggregate payment of approximately $22.9 million (based on the estimated per-share redemption price of approximately $10.65 per share) from the trust account based on funds in the trust account as of December 31, 2025. This scenario further assumes the closing of the PIPE Financing of $240.0 million, the reclassification of unredeemed public shares of PCSC to permanent equity of $68.9 million, and payment of the estimated transaction costs of PCSC of $6.2 million net of associated liabilities of $5.7 million. |
(3) | This scenario assumes that 4,312,500 public shares, or 50% of the Public Shares subject to redemption, are redeemed for an aggregate payment of approximately $45.9 million (based on the estimated per-share redemption price of approximately $10.65 per share) from the trust account based on funds in the trust account as of December 31, 2025. This scenario further assumes the closing of the PIPE Financing of $240.0 million, the reclassification of unredeemed public shares of PCSC to permanent equity of $45.9 million, and payment of the estimated transaction costs of PCSC of $6.2 million, net of associated liabilities of $5.7 million. |
(4) | This scenario assumes that 6,568,122 public shares, or approximately 76% of the public shares subject to redemption, are redeemed for an aggregate payment of approximately $70.0 million (based on the estimated per-share redemption price of approximately $10.65 per share) from the trust account based on funds in the trust account as of December 31, 2025. This scenario further assumes the closing of the PIPE Financing of $240.0 million, the reclassification of unredeemed public shares of PCSC to permanent equity of $21.9 million and payment of the estimated transaction costs of PCSC of $6.2 million, net of associated liabilities of $5.7 million. Pursuant to the Aggregate Transaction Proceeds Condition, at the Closing, aggregate transaction proceeds be greater than or equal to $250.0 million in cash, including (i) cash from the Trust Account (after reduction for the aggregate amount of payments required to be made in connection with any redemption), plus (ii) the aggregate amount of cash that has been funded pursuant to the PIPE, minus the Unpaid PCSC expenses. Thus, the redemption of 6,568,122 public shares, approximately 76% of the public shares subject to redemption, represents the estimated maximum number of public shares that can be redeemed while still achieving the Aggregate Transaction Proceeds Condition. |
• | subject us to negative economic, competitive and regulatory developments, any or all of which may have a substantial adverse impact on the particular industry in which we operate after our initial business combination; and |
• | cause us to depend on the marketing and sale of a single product or limited number of products or services. |
• | Our registration statement/proxy statement filed for our business combination transaction would disclose the possibility that our initial shareholders, advisors and their affiliates may purchase public shares from public shareholders outside the redemption process, along with the purpose of such purchases; |
• | if our initial shareholders, advisors and their affiliates were to purchase public shares from public shareholders, they would do so at a price no higher than the price offered through our redemption process; |
• | our registration statement/proxy statement filed for our business combination transaction would include a representation that any of our securities purchased by our initial shareholders, advisors and their affiliates would not be voted in favor of approving the business combination transaction; |
• | our initial shareholders, advisors and their affiliates would not possess any redemption rights with respect to our securities or, if they do acquire and possess redemption rights, they would waive such rights; and |
• | we would disclose in a Form 8-K, before our security holder meeting to approve the business combination transaction, the following material items: |
• | the amount of our securities purchased outside of the redemption offer by our initial shareholders, advisors and their affiliates, along with the purchase price; |
• | the purpose of the purchases by our initial shareholders, advisors and their affiliates; |
• | the impact, if any, of the purchases by our initial shareholders, advisors and their affiliates on the likelihood that the business combination transaction will be approved; |
• | the identities of our security holders who sold to our initial shareholders, advisors and their affiliates (if not purchased on the open market) or the nature of our security holders (e.g., 5% security holders) who sold to our initial shareholders, advisors and their affiliates; and |
• | the number of our securities for which we have received redemption requests pursuant to our redemption offer. |
Name | Age | Position | ||||
Joseph Edelman | 68 | Chairman and Director | ||||
Adam Stone | 44 | Chief Executive Officer and Director | ||||
Michael Altman | 42 | Chief Business Officer and Director | ||||
Sam Cohn | 37 | Chief Financial Officer | ||||
Mark C. McKenna | 44 | Director | ||||
Kenneth Song | 49 | Director | ||||
Harlan W. Waksal | 70 | Director | ||||
• | meeting with our independent registered public accounting firm regarding, among other issues, audits, and adequacy of our accounting and control systems; |
• | monitoring the independence of the independent registered public accounting firm; |
• | verifying the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as required by law; |
• | inquiring and discussing with management our compliance with applicable laws and regulations; |
• | pre-approving all audit services and permitted non-audit services to be performed by our independent registered public accounting firm, including the fees and terms of the services to be performed; |
• | appointing or replacing the independent registered public accounting firm; |
• | determining the compensation and oversight of the work of the independent registered public accounting firm (including resolution of disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or related work; |
• | establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or reports which raise material issues regarding our financial statements or accounting policies; and |
• | reviewing and approving all payments made to our existing shareholders, officers or directors and their respective affiliates. Any payments made to members of our audit committee will be reviewed and approved by our board of directors, with the interested director or directors abstaining from such review and approval. |
• | should have demonstrated notable or significant achievements in business, education or public service; |
• | should possess the requisite intelligence, education and experience to make a significant contribution to the board of directors and bring a range of skills, diverse perspectives and backgrounds to its deliberations; and |
• | should have the highest ethical standards, a strong sense of professionalism and intense dedication to serving the interests of the shareholders. |
• | reviewing and approving on an annual basis the corporate goals and objectives relevant to our Chief Executive Officer’s compensation, evaluating our Chief Executive Officer’s performance in light of such goals and objectives and determining and approving the remuneration (if any) of our Chief Executive Officer based on such evaluation; |
• | reviewing and approving the compensation of all of our other Section 16 officers; |
• | reviewing our executive compensation policies and plans; |
• | implementing and administering our incentive compensation equity-based remuneration plans; |
• | assisting management in complying with our proxy statement and annual report disclosure requirements; |
• | approving all special perquisites, special cash payments and other special compensation and benefit arrangements for our officers and employees; |
• | producing a report on executive compensation to be included in our annual proxy statement; and |
• | reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors. |
• | duty to act in good faith in what the director or officer believes to be in the best interests of the company as a whole; |
• | duty to exercise powers for the purposes for which those powers were conferred and not for a collateral purpose; |
• | directors should not improperly fetter the exercise of future discretion; |
• | duty to exercise authority for the purpose for which it is conferred and a duty to exercise powers fairly as between different sections of shareholders; |
• | duty not to put themselves in a position in which there is a conflict between their duty to the company and their personal interests; and |
• | duty to exercise independent judgement. |
• | Our officers and directors are not required to, and will not, commit their full time to our affairs, which may result in a conflict of interest in allocating their time between our operations and our search for a business combination and their other businesses. We do not intend to have any full-time employees prior to the completion of our initial business combination. Each of our officers is engaged in several other business endeavors for which he may be entitled to substantial compensation, and our officers are not obligated to contribute any specific number of hours per week to our affairs. Further, our sponsor and our officers and directors may sponsor or form other special purpose acquisition companies similar to ours or may pursue other business or investment ventures during the period in which we are seeking an initial business combination. Any such companies, businesses or investments may present additional conflicts of interest in pursuing an initial business combination. However, we do not believe that any such potential conflicts would materially affect our ability to complete our initial business combination. |
• | Our sponsor subscribed for founder shares and purchased private placement shares in a private placement that closed simultaneously with our initial public offering. In April 2024, our sponsor transferred 30,000 founder shares to each of Mark C. McKenna, Kenneth Song and Harlan W. Waksal. Our sponsor and our management team have entered into the Letter Agreement, pursuant to which they have agreed to waive their redemption rights with respect to their founder shares, private placement shares and PCSC Class A Shares in connection with (i) the completion of our initial business combination and (ii) the approval by the shareholders of an amendment to the Existing Governing Documents (A) that would modify the substance or timing of our obligation to provide holders of our public shares the right to have their shares redeemed or repurchased in connection with our initial business combination or to redeem 100% of our public shares if we do not complete our initial business combination by June 13, 2026 or (B) with respect to any other provision relating to the rights of holders of our public shares. Additionally, our sponsor and each member of our management team have agreed to waive their rights to liquidating distributions from the Trust Account with respect to their founder shares and their private placement shares if we fail to complete our initial business combination by |
• | Our officers and directors may have a conflict of interest with respect to evaluating a particular business combination if the retention or resignation of any such officers and directors was included by a target business as a condition to any agreement with respect to our initial business combination. The low price that our sponsor, officers and directors (directly or indirectly) paid for the founder shares creates an incentive whereby our officers and directors could potentially make a substantial profit even if we select an acquisition target that subsequently declines in value and is unprofitable for public shareholders. If we do not complete our initial business combination by June 13, 2026, the founder shares may lose most of their value, except to the extent they receive liquidating distributions from assets outside the Trust Account, which could create an incentive for our sponsor, officers and directors to complete a transaction even if we select an acquisition target that subsequently declines in value and is unprofitable for public shareholders. |
• | By seeking shareholder approval, we will complete our initial business combination only if a majority of the issued and outstanding PCSC Shares, represented in person or by proxy and entitled to vote thereon, voted at a shareholder meeting are voted in favor of the Business Combination. In such case, our sponsor and directors and officers have agreed to vote their founder shares, private placement shares and public shares in favor of our proposed initial business combination (for more information on voting and permitted purchases of public shares see, “—Effecting Our Business Combination—Permitted Purchases of Our Securities and Other Transactions with Respect to Our Securities.”) |

• | Proprietary technology platform underpinned by a novel assay, high-quality and rigorous scientific approach, scalable automation capabilities and world-class expertise across multiomics, AI/ML and DL. We fundamentally believe a “one size fits all” technological approach is insufficient to detect every cancer across stages and subtypes. Our platform is supported by a proprietary non-bisulfite, base level epigenetic assay technology, specialized molecular testing used to analyze chemical modifications to DNA, a rigorous sample collection and trial design approach, differentiated wet lab/automation capabilities and a |
• | Flexible multi-cancer detection platform designed to enable cancer specific accuracy optimization to support a personalized test offering tailored to each individual's risk profile, targeting a collective approximately $50 billion market opportunity. We are prioritizing the development of single cancer early detection tests based on reimbursement pathway potential and clinical guidelines starting with CRC. As the market evolves to multi-cancer test ordering, we believe clinicians, patients and payers will continue to stress diagnostic yield performance for those cancers in which a patient is at increased risk. Our common platform is designed to offer single cancer tests or risk-based panels all within a similar cost structure. Our cancer screening strategy is focused on addressing today’s expensive, burdensome and highly fragmented screening paradigm that is limiting adoption. We estimate that our collective U.S. market opportunity across CRC screening and certain additional cancer screening indications under evaluation is approximately $50 billion. This estimate is an internal market-sizing exercise intended to illustrate the potential aggregate market size and is not a projection of future revenue. It was derived using estimates of relevant U.S. screening-eligible population of 120 million for colorectal cancer and its overlap with those eligible for other cancer indications based on publicly available screening guidelines, U.S. population estimates, and Medicare and private insurance coverage estimates, combined with assumed per test pricing similar to the $592 rate proposed under the Nancy Gardner Sewell Medicare Multi-Cancer Early Detection Screening Coverage Act taking effect as soon as 2028. These estimates involve significant judgment and uncertainty, including with respect to the size of overlapping eligible populations, future pricing, reimbursement, physician and patient adoption, and timing of regulatory approval and commercialization. We have not received regulatory approval for, and do not currently have commercial products for, the additional cancer screening indications described in this section, and there can be no assurance that any such product candidates will be successfully developed, approved or commercialized. |
• | SimpleScreen CRC test is designed to deliver high sensitivity at the earliest and most treatable stages of disease to serve as a foundation for establishing a broader multi-cancer testing platform. Test development and performance is supported by the PREEMPT study, a prospective multi-center observational study with approximately 48 thousand patients enrolled and approximately 27 thousand evaluated. SimpleScreen CRC v1 is designed to meet FDA requirements for a first-line label for CRC screening. In addition, we are working on a comprehensive upgrade of v1 across the assay, including optimizing key aspects of the reagents such as increasing the ability to detect cell free DNA (“cfDNA”) molecules, increasing workflow automation to approximately 95% full automation and algorithm in v2, which has demonstrated improved detection rates and overall performance in recent studies that we anticipate will enable us to develop a potentially best-in-class blood-based CRC test over time. |
• | Differentiated and capital efficient commercialization strategy, supported by a partnership with Exact Sciences, has the potential to meaningfully accelerate market adoption and brand recognition. We announced an exclusive U.S. license agreement with Exact Sciences to commercialize our blood-based CRC test. Exact Sciences is the leader in stool-based CRC testing with a significant commercial infrastructure and large, leading base of screening revenues of volumes. This strategic partnership is designed to drive accelerated market adoption through Exact Sciences' well-established commercial infrastructure as SimpleScreen provides a new blood-based offering to complement Exact Sciences’ stool-based offering and reach the approximately 40-50 million people who remain unscreened for CRC in the U.S. alone. Importantly, we retain full rights for CRC blood testing when tests are ordered in combination with additional cancer screening tests, including for lung and more than ten other initial cancer indications the company is pursuing. We believe Exact Sciences’ substantial commercial footprint will accelerate and drive the scaling of testing volumes for multi-cancer indications over time. |
• | Promising global reach and product pipeline depth, supported by expanded strategic collaboration with Roche. We announced an exclusive license and option agreement with Roche to develop and commercialize an ex-U.S. kitted (de-centralized) version of our personalized multi-cancer early detection (“MCED”) test on the Roche sequencing by expansion (“SBX”) platform. We will retain key rights to all U.S. kitted tests and U.S. and ex-U.S. centralized testing, and importantly have access to multi-cancer kit data, if available with proper consents and in accordance with applicable laws. |
• | Targeting leading healthcare systems and payers to drive deep integration across the ecosystem and infrastructure, which will support commercial launch across tests and create a sustainable, data-driven competitive moat. Highly scalable, modular AI infrastructure and strategy to be leveraged with health systems for future algorithm training and indication expansion pairs Freenome's AI-enabled learning engine with RWD and informatics for bi-directional data exchange with leading healthcare organizations. Our platform is also designed for scalability and seamless integration into existing healthcare workflows, to facilitate strategic partnering and potentially increase test adoption. |









• | reach to over 260,000 providers; |
• | relationships with hundreds of health systems; |
• | EHR integrations; |
• | a commercial organization of over 1,400 personnel; and |
• | database of millions of people who have not completed stool-based testing. |

• | traditional screening methods and modalities across routine testing — including, but not limited to: imaging (e.g., low-dose CT scans, MRI), colonoscopies, at-home stool collection assays, endoscopies, pap smear tests, and others; |
• | MCED — testing to screen for numerous cancers from a single blood draw by looking for cancer signals from various analytes, including DNA, RNA, proteins and more; and |
• | individual indications — blood-based screening for individual cancers (e.g., CRC, lung, prostate, etc.). |
• | Novelty, breadth, depth and quality of our proprietary technology platform and data moat; |
• | Laboratory automation, infrastructure, and scale; |
• | Versatility of our testing foundation combining unprecedented multiomics with AI/ML, enabling rapid test versioning; |
• | Quality and clinical performance of tests; |
• | Rigor and diversity of clinical studies conducted and underway; |
• | Regulatory foundation; |
• | Commercial arrangements with leading third party diagnostic companies; |
• | Unique clinical insights from pivotal FDA validation studies in blood-based CRC and Lung testing, including the PREEMPT CRC Study; |
• | Digital patient identification and education tools; |
• | Availability of multiple cancer indications on a common platform; and |
• | Cross-functional and interdisciplinary team covering all the domains required to advance Freenome's mission and vision. |
• | Certain payers, including those participating in Medicare’s Molecular Diagnostic Services Program (“MolDx”), require the use of Z-Code Identifiers, which supplement CPT codes and support technical assessment and coverage decisions. |
• | Changes to coding, including reassignment of CPT codes or Z-Codes, may materially affect reimbursement levels. |
• | Suspension, limitation or revocation of CLIA certification or state licenses; |
• | criminal sanctions; |
• | state on-site monitoring; |
• | directed plans of correction; |
• | exclusion from Medicare and Medicaid; |
• | civil monetary penalties; and |
• | civil injunctive suit or criminal penalties. |
• | product design and development; |
• | product testing; |
• | product manufacturing; |
• | product safety; |
• | post-market adverse event reporting; |
• | post-market surveillance; |
• | product labeling; |
• | product storage; |
• | record keeping; |
• | premarket clearance or approval; |
• | post-market approval studies; |
• | advertising and promotion; and |
• | product sales and distribution. |
• | establishment registration and device listings with the FDA; |
• | QSR, which require manufacturers to follow stringent design, testing, process control, documentation and other quality assurance procedures; |
• | labeling regulations, which prohibit the promotion of products for uncleared or unapproved, i.e., “off-label,” uses and impose other restrictions on labeling; |
• | medical device reporting regulations, which require that manufacturers report to the FDA if their device may have caused or contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute to a death or serious injury if it were to recur; |
• | corrections and removal reporting regulations, which require that manufacturers report to the FDA field corrections and product recalls or removals if undertaken to reduce a risk to health posed by the device or to remedy a violation of the FDCA that may present a risk to health; and |
• | requirements to conduct post-market surveillance studies to establish continued safety data. |
• | untitled letters or warning letters; |
• | fines, injunctions and civil penalties; |
• | recall or seizure of our products; |
• | operating restrictions, partial suspension or total shutdown of production; |
• | refusing requests for 510(k) clearance or premarket approval or de novo classification of new products; |
• | withdrawing premarket approvals that are already granted or reclassifying the devices; and |
• | criminal prosecution. |
• | accelerate the development of our AI/ML-driven multiomics platform that seeks to identify the early biological signals of disease; |
• | expand our commercial and data infrastructure to support future launch of multiple blood-based cancer detection tests; |
• | further advance our R&D programs; |
• | seek to identify additional indications; |
• | expand commercial and operational personnel; |
• | maintain, expand, enforce, defend and protect our intellectual property portfolio and provide reimbursement of third-party expenses related to our patent portfolio; and |
• | seek regulatory approvals for any future product candidates for which we successfully complete clinical trials. |
Year Ended December 31, | Change | |||||||||||
2025 | 2024 | $ | % | |||||||||
Revenues | $30,409 | $2,882 | $27,527 | 955% | ||||||||
Expenses | ||||||||||||
Cost of services | 1,944 | 2,564 | (620) | -24% | ||||||||
Research and development | 197,117 | 225,749 | (28,632) | -13% | ||||||||
General and administration | 54,817 | 66,542 | (11,725) | -18% | ||||||||
Total operating costs and expenses | 253,878 | 294,855 | (40,977) | -14% | ||||||||
Loss from operations | (223,469) | (291,973) | 68,504 | -23% | ||||||||
Other income: | ||||||||||||
Interest and investment income, net | 6,914 | 17,584 | (10,670) | -61% | ||||||||
Interest expense | (2,820) | — | (2,820) | n/a | ||||||||
Other income (expense), net | 32 | (32) | 64 | -200% | ||||||||
Total other income | 4,126 | 17,552 | (13,426) | -76% | ||||||||
Net loss | $(219,343) | $(274,421) | $55,078 | -20% | ||||||||
• | $1.4 million from the sale and distribution of EarlyCDT Lung test kits in the UK and globally through our U.K.-based subsidiary, an increase of $0.8 million from revenue for the year ended December 31, 2024; |
• | $1.1 million from royalties on the EarlyCDT Lung tests performed through our U.K.-based subsidiary, a decrease of $0.1 million from revenue for the year ended December 31, 2024; |
• | $0.5 million from sale of EarlyCDT Lung tests plates through its U.K.-based subsidiary, an increase of $0.2 million from revenue for the year ended December 31, 2024; and |
• | $0.3 million from the performance of diagnostic and research services under a research and service agreement with Roche, a decrease of $0.5 million from revenue for the year ended December 31, 2024. |
Year Ended December 31, | Change | |||||||||||
2025 | 2024 | $ | % | |||||||||
Salaries and benefits | $71,216 | $81,085 | $(9,869) | -12% | ||||||||
Facility, depreciation and amortization | 62,216 | 54,752 | 7,464 | 14% | ||||||||
Materials, laboratory supplies and equipment | 29,330 | 31,359 | (2,029) | -6% | ||||||||
Direct research and development costs | 12,081 | 28,747 | (16,666) | -58% | ||||||||
Information technology | 11,711 | 13,478 | (1,767) | -13% | ||||||||
Stock-based compensation | 5,241 | 5,915 | (674) | -11% | ||||||||
Consulting and contractor | 3,872 | 7,698 | (3,826) | -50% | ||||||||
Other | 1,450 | 2,715 | (1,265) | -47% | ||||||||
$197,117 | $225,749 | $(28,632) | -13% | |||||||||
• | $16.7 million decrease in direct research and development costs, primarily due to a reduction in clinical trial costs; |
• | $10.6 million decrease in personnel related expenses, including salaries and benefits and stock-based compensation, due to reduced headcount and compensation costs from a reduction in force during the year ended December 31, 2024; |
• | $3.8 million decrease in consulting and contractor expenses; |
• | $2.0 million decrease in materials, laboratory supplies and equipment; |
• | $1.8 million decrease in information technology; and |
• | $1.3 million decrease in other expenses. |
• | $7.5 million increase in facility, depreciation and amortization expenses is primarily related to the amortization of leasehold improvements, which is due to the higher costs associated with our headquarters and laboratory facilities. |
Year Ended December 31, | Change | |||||||||||
2025 | 2024 | $ | % | |||||||||
Salaries and benefits | $25,804 | $ 31,121 | (5,317) | -17% | ||||||||
Consulting and contractor | 14,685 | 13,358 | 1,327 | 10% | ||||||||
Stock-based compensation | 5,314 | 13,367 | (8,053) | -60% | ||||||||
Information technology | 4,748 | 3,859 | 889 | 23% | ||||||||
Facility, depreciation and amortization | 2,693 | 2,763 | (70) | -3% | ||||||||
Other expenses | 1,573 | 2,074 | (501) | -24% | ||||||||
$54,817 | $66,542 | $(11,724) | -18% | |||||||||
• | $13.3 million decrease in personnel related expenses, including Salaries and benefits and Stock-based compensation, due to reduced headcount and compensation costs from a reduction in force during the year ended December 31, 2024 and the departure of our former chief executive officer in September 2024; |
• | $0.5 million in other expenses; and |
• | $0.1 million in facilities, depreciation, and amortization expenses related to our office buildings. |
• | $1.3 million increase in consulting and contractor costs; and |
• | $0.9 million increase in information technology related expenses. |
• | the type, number, scope, progress, expansions, results, costs and timing of, discovery, preclinical studies and clinical trials of our product and any product candidates; |
• | the costs, timing and outcome of regulatory review of our current and future product pipeline; |
• | the terms and timing of establishing and maintaining license, collaboration and other similar arrangements; |
• | the legal costs of obtaining, maintaining and enforcing our patents and other intellectual property rights; |
• | our efforts to enhance operational systems and hire additional personnel to satisfy our obligations as a public company; |
• | the costs associated with hiring additional personnel and consultants as our development and commercial activities increase; |
• | the costs and timing of establishing or securing sales and marketing capabilities if any current and future product pipeline is approved; |
• | our ability to achieve sufficient market acceptance, coverage and adequate reimbursement from third-party payers and adequate market share and revenue for any approved products; and |
• | costs associated with any products or technologies that we may in-license or acquire. |
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Net cash flows used in operating activities | $(110,669) | $(196,367) | ||||
Net cash flows provided by (used in) investing activities | 21,383 | (52,810) | ||||
Net cash flows provided by financing activities | 100,761 | 263,992 | ||||
Grant date | Fair value per common share on grant date | Number of shares subject to options granted | Per share exercise price of options(1) | Per share estimated fair value of options(1) | Number of shares subject to restricted stock units granted | Per share estimated fair value of restricted stock units | ||||||||||||
March 11, 2025 | $3.96 | 2,705,101 | $3.96 | $2.57 | 3,250,291 | $3.96 | ||||||||||||
May 29, 2025 | $3.96 | 2,192,083 | $3.96 | $2.57 | 1,584,876 | $3.96 | ||||||||||||
August 20, 2025 | $1.77 | — | — | — | 662,871 | $1.77 | ||||||||||||
October 24, 2025 | $1.77 | 95,266 | $2.39 | $0.93 | — | — | ||||||||||||
(1) | The per share exercise price and per share estimated fair value of options are prior to modifications as a result of the Repricing discussed below |
• | Aaron Elliott, Ph.D., its current Chief Executive Officer, effective as of April 1, 2025; |
• | Riley Ennis, its co-founder and Chief Product Officer and former principal executive officer from September 2024 to March 31, 2025; |
• | Cheng-Ho (Jimmy) Lin, M.D., Ph.D., MHS, its Chief Scientific Officer; and |
• | Linh H. Le, its Chief Financial Officer. |
Name and Principal Position | Year | Salary ($) | Bonus ($) | Stock Awards ($)(1) | Option Awards ($)(2) | Non-Equity Incentive Plan Compensation ($)(3) | All Other Compensation ($)(4) | Total ($) | ||||||||||||||||
Aaron Elliott, Ph.D.(5) Chief Executive Officer | 2025 | 513,750 | — | 5,849,767 | 3,797,865 | 513,750 | 13,715 | 10,688,847 | ||||||||||||||||
Riley Ennis(6) Co-Founder, Chief Product Officer and Former Principal Executive Officer | 2025 | 546,000 | — | 1,549,999 | 2,014,890 | 327,600 | — | 4,438,489 | ||||||||||||||||
Cheng-Ho (Jimmy) Lin, M.D., Ph.D., MHS Chief Scientific Officer | 2025 | 530,000 | — | 1,050,002 | 1,364,927 | 212,000 | — | 3,156,929 | ||||||||||||||||
Linh H. Le(7) Chief Financial Officer | 2025 | 301,288 | — | 899,997 | 1,174,761 | 150,644 | 30,872 | 2,557,562 | ||||||||||||||||
(1) | The amounts reported represent the aggregate grant date fair value of RSUs granted to Freenome’s NEOs during the fiscal year ended December 31, 2025, calculated in accordance with Financial Accounting Standards Board (“FASB”) Accounting Standards Codification (“ASC”) Topic 718, disregarding estimated forfeitures related to service-based vesting conditions. For a description of the assumptions used in determining these values, see Note 2 of Freenome’s financial statements included elsewhere in this proxy statement/prospectus. The amounts reported in this column reflect the accounting cost for the RSUs and do not correspond to the actual economic value that may be received by |
(2) | The amounts reported represent the aggregate grant date fair value of stock options awarded to Freenome’s NEOs during the fiscal year ended December 31, 2025, calculated in accordance with FASB ASC Topic 718, disregarding estimated forfeitures related to service-based vesting. For a description of the assumptions used in determining these values, see Note 2 of Freenome’s financial statements included elsewhere in this proxy statement/prospectus. The amounts reported in this column reflect the accounting cost for the stock options and do not correspond to the actual economic value that may be received by Freenome’s NEOs upon the exercise of the stock options or any sale of the underlying shares. |
(3) | The amounts reported represent cash incentive bonuses for performance during the year ended December 31, 2025 For more information on these bonuses, see the description of the annual performance bonuses under “2025 Bonuses” below. |
(4) | The amounts reported represent commuting expenses, including travel, lodging and meal expenses, reimbursed by Freenome for travel between the applicable NEO’s residence and the Company’s headquarters. |
(5) | Dr. Elliott commenced employment with Freenome on April 1, 2025. The amount reported represents his actual base salary earned during 2025. His annualized base salary for 2025 was $685,000. |
(6) | Mr. Ennis served as Freenome’s principal executive officer from September 2024 through March 31, 2025, in addition to serving as Freenome’s Chief Product Officer. |
(7) | Mr. Le commenced employment with Freenome on May 19, 2025. The amount reported represents his actual base salary earned during 2025. His annualized base salary for 2025 was $485,000. |
Option Awards(1) | Stock Awards(1) | ||||||||||||||||||||||||||
Name | Grant Date | Vesting Commencement Date | Number of Securities Underlying Unexercised Options (#) Exercisable | Number of Securities Underlying Unexercised Options (#) Unexercisable | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) Unexercisable | Option Exercise Price ($) | Option Expiration Date | Equity Incentive Plan Awards: Number of Unearned Shares or Units of Stock (#) | Equity Incentive Plan Awards: Market Value of Unearned Shares or Units of Stock ($)(2) | ||||||||||||||||||
Aaron Elliott, Ph.D. | 5/29/2025 | 4/1/2025 | 1,477,214(3) | — | — | 3.96 | 5/28/2035 | — | — | ||||||||||||||||||
5/29/2025 | 4/1/2025 | — | — | — | — | — | 1,477,214(4) | 4,368,122 | |||||||||||||||||||
Riley Ennis | 12/13/2019 | — | — | — | — | — | 1,091,451(5) | 3,227,421 | |||||||||||||||||||
6/22/2020 | 5/23/2020 | 1,099,202 | — | — | 1.37 | 6/22/2030 | — | — | |||||||||||||||||||
2/5/2021 | 5/6/2021 | — | — | — | — | — | 1,657,150(6) | 4,900,193 | |||||||||||||||||||
6/22/2022 | 6/22/2022 | — | — | — | — | — | 556,980(8) | 1,646,990 | |||||||||||||||||||
6/22/2022 | 6/22/2022 | 849,562 | 145,048(7) | — | 4.50 | 6/22/2032 | — | — | |||||||||||||||||||
2/18/2023 | 2/2/2023 | — | — | — | — | — | 132,819(6) | 392,746 | |||||||||||||||||||
2/18/2023 | 2/2/2023 | 187,999 | 77,412(7) | — | 3.36 | 2/18/2033 | — | — | |||||||||||||||||||
2/16/2024 | 2/16/2024 | — | — | — | — | — | 209,392(6) | 619,172 | |||||||||||||||||||
2/16/2024 | 2/16/2024 | 244,290 | 174,494(9) | — | 5.16 | 2/16/2034 | — | ||||||||||||||||||||
3/11/2025 | 2/15/2025 | — | — | — | — | — | 391,414(6) | 1,157,411 | |||||||||||||||||||
3/11/2025 | 2/15/2025 | — | 782,828(7) | — | 3.96 | 3/11/2035 | — | — | |||||||||||||||||||
Cheng-Ho (Jimmy) Lin, M.D. Ph.D., MHS | 7/31/2019 | 4/15/2019 | 38,351 | — | — | 1.37 | 4/15/2029 | — | — | ||||||||||||||||||
10/16/2019 | 4/15/2019 | 514,547 | — | — | 1.37 | 10/16/2029 | — | — | |||||||||||||||||||
2/5/2021 | 2/5/2021 | — | — | — | — | — | 150,000(5) | 443,550 | |||||||||||||||||||
6/22/2022 | 6/22/2022 | — | — | — | — | — | 278,490(8) | 823,495 | |||||||||||||||||||
6/22/2022 | 6/22/2022 | 424,785 | 72,525(7) | — | 4.50 | 6/22/2032 | — | — | |||||||||||||||||||
2/18/2023 | 2/2/2023 | — | — | — | — | — | 87,832(6) | 259,719 | |||||||||||||||||||
2/18/2023 | 2/2/2023 | 124,322 | 51,192(7) | — | 3.36 | 2/18/2033 | — | — | |||||||||||||||||||
2/16/2024 | 2/16/2024 | — | — | — | — | — | 138,446(6) | 409,385 | |||||||||||||||||||
2/16/2024 | 2/16/2024 | 161,520 | 115,372(9) | — | 5.16 | 2/16/2034 | — | — | |||||||||||||||||||
3/11/2025 | 2/15/2025 | — | — | — | — | — | 265,152(6) | 784,054 | |||||||||||||||||||
3/11/2025 | 2/15/2025 | — | 530,303(7) | — | 3.96 | 3/11/2035 | — | — | |||||||||||||||||||
Linh H. Le | 5/29/2025 | 5/19/2025 | — | 454,545(7) | — | 3.96 | 5/29/2035 | — | — | ||||||||||||||||||
8/20/2025 | 8/15/2015 | — | — | — | — | — | 227,272(6) | 672,043 | |||||||||||||||||||
(1) | All option and RSU awards were granted under the 2016 Plan. |
(2) | As no public market existed for Freenome Common Shares as of December 31, 2025, there was no market value for these shares as of such date. The dollar amount included is based on $2.957 per Freenome Common Share, which equals the assumed per share price used in the Business Combination pursuant to the Business Combination Agreement of approximately $10 multiplied by an estimated Exchange Ratio of 0.29570. |
(3) | This stock option has an early exercise feature such that the option is immediately exercisable. In the event of an early exercise, all are exercised that are still subject to vesting conditions are treated as restricted stock subject to repurchase until those vesting conditions are met. As of December 31, 2025, all shares underlying this stock option were unvested and the underlying shares vest over a four-year period as follows: 25% vest on the first anniversary of the vesting commencement date and the remaining 75% vest in equal monthly installments over the following three years, subject to continued service through the applicable vesting date. |
(4) | The shares underlying this RSU award are subject to both a time-based vesting condition and a performance-based vesting condition, both of which must be satisfied before the shares will be deemed vested and may be settled. The time-based vesting condition will be satisfied over a four-year period, with 25% of the shares satisfying the time-based vesting condition on the first quarterly vesting date (with quarterly vesting dates occurring on February 15, May 15, August 15 and November 15) on or after the first anniversary of the vesting commencement date, and an additional 6.25% satisfying the time-based vesting condition on each quarterly vesting date thereafter, subject to continuous service through each applicable vesting date. The performance-based vesting condition will be satisfied on the earlier of (1) the Closing and (2) a change in control of Freenome. |
(5) | The shares underlying RSU award are subject to a performance-based vesting condition, which will be satisfied on the earliest of (1) six months after the Closing, (2) March 15 of the calendar year following the year in which the Closing occurs and (3) a change in control of Freenome. |
(6) | The shares underlying this RSU award are subject to both a time-based vesting condition and a performance-based vesting condition, both of which must be satisfied before the shares will be deemed vested and may be settled. The time-based vesting condition will be satisfied over a four-year period, with 25% of the shares satisfying the time-based vesting condition on the first quarterly vesting date (with quarterly vesting dates occurring on February 15, May 15, August 15 and November 15) on or after the first anniversary of the vesting commencement date, and an additional 6.25% satisfying the time-based vesting condition on each quarterly vesting date thereafter, subject to continuous service through each applicable vesting date. The performance-based vesting condition will be satisfied on the earliest of (1) six months after the Closing, (2) March 15 of the calendar year following the year in which the Closing occurs and (3) a change in control of Freenome. |
(7) | The shares underlying this stock option vest over a four-year period as follows: 25% vest on the first anniversary of the vesting commencement date and the remaining 75% vest in equal monthly installments over the following three years, subject to continued service through the applicable vesting date. |
(8) | The shares underlying this RSU award are subject to both a time-based vesting condition and a performance-based vesting condition, both of which must be satisfied before the shares will be deemed vested and may be settled. The time-based vesting condition will be satisfied over a four-year period, with 25% of the shares satisfying the time-based vesting condition on the first anniversary of the vesting commencement date and the remaining 75% satisfying the time-based vesting condition on each monthly anniversary of the vesting commencement date thereafter, subject to continuous service through each applicable vesting date. The performance-based vesting condition will be satisfied on the earliest of (1) six months after the Closing, (2) March 15 of the calendar year following the year in which the Closing occurs and (3) a change in control of Freenome. |
(9) | The shares underlying this stock option vest in 36 equal monthly installments following the vesting commencement date, subject to continued service through the applicable vesting date. |
Name | Fees Earned or Paid in Cash ($)(1) | Option Awards ($)(2) | Stock Awards ($)(3) | Total ($) | ||||||||
Moritz Hartmann(4) | — | — | — | — | ||||||||
Ellen Hukkelhoven, Ph.D.(4) | — | — | — | — | ||||||||
Peter Kolchinsky, Ph.D.(4) | — | — | — | — | ||||||||
Josh Lauer(4) | — | — | — | — | ||||||||
Deepika Pakianathan, Ph.D.(5) | 61,875 | 102,513 | 67,114 | 231,502 | ||||||||
Vijay Pande(4) | — | — | — | — | ||||||||
Randal Scott, Ph.D.(6) | 51,667 | 102,513 | 67,114 | 221,294 | ||||||||
Douglas VanOort(7) | 85,159 | 385,567 | 292,113 | 762,840 | ||||||||
(1) | The amounts reported represents the fees each director received for their services to the Freenome Board during the fiscal year ended December 31, 2025. |
(2) | The amounts reported represent the aggregate grant date fair value of stock options awarded to Freenome’s non-employee directors during the fiscal year ended December 31, 2025, calculated in accordance with FASB ASC Topic 718, disregarding estimated forfeitures related to service-based vesting. For a description of the assumptions used in determining these values, see Note 2 of Freenome’s financial statements included elsewhere in this proxy statement/prospectus. The amounts reported in this column reflect the accounting cost for the stock options and do not correspond to the actual economic value that may be received by the applicable non-employee director upon the exercise of the stock options or any sale of the underlying shares. |
(3) | The amounts reported represent the aggregate grant date fair value of RSUs granted to Freenome’s non-employee directors during the fiscal year ended December 31, 2025, calculated in accordance with FASB ASC Topic 718, disregarding estimated forfeitures related to time-based vesting conditions. For a description of the assumptions used in determining these values, see Note 2 of Freenome’s financial statements included elsewhere in this proxy statement/prospectus. The amounts reported in this column reflect the accounting cost for the RSUs and do not correspond to the actual economic value that may be received by Freenome’s non-employee directors upon the vesting of the RSUs or any sale of the underlying shares. The RSUs are subject to both a time-based vesting condition and performance-based vesting condition. The grant date fair value has been calculated based on the probable outcome of the performance-based vesting condition as of the grant date, which equates to the maximum value of the RSUs as of the grant date. |
(4) | As of December 31, 2025, Messrs. Hartmann, Lauer, Kolchinsky and Pande and Dr. Hukkelhoven did not hold any outstanding equity awards. |
(5) | As of December 31, 2025, Dr. Pakianathan held outstanding options to purchase an aggregate of 167,207 Freenome Common Shares and 49,205 RSUs. |
(6) | As of December 31, 2025, Dr. Scott held outstanding options to purchase an aggregate of 380,671 Freenome Common Shares and 43,255 RSUs. |
(7) | As of December 31, 2025, Mr. VanOort held outstanding options to purchase an aggregate of 170,454 Freenome Common Shares and 73,766 RSUs. |
Annual Retainer | |||
Board of Directors: | |||
Members | $ | ||
Additional retainer for non-executive chair | $ | ||
Audit Committee: | |||
Members (other than chair) | $ | ||
Retainer for chair | $ | ||
Compensation Committee: | |||
Members (other than chair) | $ | ||
Retainer for chair | $ | ||
Nominating and Corporate Governance Committee: | |||
Members (other than chair) | $ | ||
Retainer for chair | $ | ||
• | New Freenome’s Class I directors will be [•]; |
• | New Freenome’s Class II directors will be [•]; and |
• | New Freenome’s Class III directors will be [•]. |
• | appointing, approving the compensation of, and assessing the independence of New Freenome’s independent registered public accounting firm; |
• | pre-approving auditing and permissible non-audit services, and the terms of such services, to be provided by New Freenome’s independent registered public accounting firm; |
• | reviewing the overall audit plan with New Freenome’s independent registered public accounting firm and members of management responsible for preparing New Freenome’s financial statements; |
• | reviewing and discussing with management and New Freenome’s independent registered public accounting firm New Freenome’s annual and quarterly financial statements and related disclosures as well as critical accounting policies and practices used by New Freenome; |
• | coordinating the oversight and reviewing the adequacy of New Freenome’s internal control over financial reporting; |
• | establishing policies and procedures for the receipt and retention of accounting-related complaints and concerns; |
• | recommending based upon the audit committee’s review and discussions with management and New Freenome’s independent registered public accounting firm whether New Freenome’s audited financial statements shall be included in its Annual Report on Form 10-K; |
• | monitoring the integrity of New Freenome’s financial statements and New Freenome’s compliance with legal and regulatory requirements as they relate to New Freenome’s financial statements and accounting matters; |
• | preparing the audit committee report required by SEC rules to be included in New Freenome’s annual proxy statement; |
• | reviewing all related persons transactions for potential conflict of interest situations and approving all such transactions; and |
• | reviewing quarterly earnings releases. |
• | annually reviewing and recommending to the board of directors the corporate goals and objectives relevant to the compensation of New Freenome’s Chief Executive Officer; |
• | evaluating the performance of New Freenome’s Chief Executive Officer in light of such corporate goals and objectives and based on such evaluation (i) reviewing and determining the cash compensation of New Freenome’s Chief Executive Officer and (ii) reviewing and approving grants and awards to New Freenome’s Chief Executive Officer under equity-based plans; |
• | reviewing and approving the compensation of New Freenome’s other executive officers; |
• | reviewing and establishing New Freenome’s overall management compensation, philosophy and policy; |
• | overseeing and administering New Freenome’s compensation and similar plans; |
• | evaluating and assessing potential and current compensation advisors in accordance with the independence standards identified in the applicable Nasdaq listing rules; |
• | reviewing and approving New Freenome’s policies and procedures for the grant of equity-based awards; |
• | reviewing and recommending to the board of directors the compensation of New Freenome’s directors; |
• | preparing New Freenome’s compensation committee report if and when required by SEC rules; |
• | reviewing and discussing annually with management New Freenome’s “Compensation Discussion and Analysis,” if and when required, to be included in New Freenome’s annual proxy statement; and |
• | reviewing and approving the retention or termination of any consulting firm or outside advisor to assist in the evaluation of compensation matters. |
• | developing and recommending to the New Freenome Board criteria for board and committee membership; |
• | establishing procedures for identifying and evaluating board of director candidates, including nominees recommended by stockholders; |
• | reviewing the composition of the board of directors to ensure that it is composed of members containing the appropriate skills and expertise to advise New Freenome; |
• | identifying individuals qualified to become members of the board of directors; |
• | recommending to the New Freenome Board the persons to be nominated for election as directors and to each of the board’s committees; |
• | developing and recommending to the board of directors a code of business conduct and ethics and a set of corporate governance guidelines; and |
• | overseeing the evaluation of the New Freenome Board and management. |
• | each person known by PCSC to be the beneficial owner of more than 5% of PCSC’s outstanding ordinary shares on the record date; |
• | each person known by PCSC who may become beneficial owner of more than 5% of New Freenome’s outstanding Common Stock immediately following the Business Combination; |
• | each of PCSC’s current officers and directors; |
• | each person who will (or is expected to) become an executive officer or a director of New Freenome upon consummation of the Business Combination; |
• | all of PCSC’s current officers and directors as a group prior to the consummation of the Business Combination; and |
• | all of New Freenome’s executive officers and directors as a group after the consummation of the Business Combination. |
* | Less than one percent. |
(1) | The pre-Business Combination percentage of beneficial ownership in the table below is calculated based on 11,067,500 PCSC Shares outstanding as of the date hereof, comprising of 8,911,250 PCSC Class A Shares and 2,156,250 PCSC Class B Shares. |
(2) | The post-Business Combination percentage of beneficial ownership is calculated based on 112,464,296 shares of New Freenome Common Stock outstanding, comprising of (i) 11,067,500 shares with respect to and in exchange for PCSC Shares outstanding as of the date hereof (ii) 24,000,000 PIPE Shares (iii) 77,396,796 shares issuable with respect to and in exchange for 240,175,479 shares of Freenome shares outstanding as of February 28, 2026 and (iv) 6,420,139 shares issuable upon the conversion of the Roche Convertible Note. Such amount assumes that no public shareholders have redeemed their public shares. |
(3) | The post-Business Combination percentage of beneficial ownership is calculated based on 112,464,296 shares of New Freenome Common Stock outstanding, comprising of (i) 11,067,500 shares with respect to and in exchange for PCSC Shares outstanding as of the date hereof (ii) 24,000,000 PIPE Shares (iii) 77,396,796 shares issuable with respect to and in exchange for 240,175,479 shares of Freenome shares outstanding as of February 28, 2026 and (iv) 6,420,139 shares issuable upon the conversion of the Roche Convertible Note. Such amount assumes that 6,568,122 public shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(4) | Unless otherwise noted, the business address of each of the following individuals is 51 Astor Place, 10th Floor, New York, NY 10003. |
(5) | Does not include any shares indirectly owned by this individual as a result of his membership interest in our Sponsor. As of March 18, 2026, Mr. Edelman has an aggregate indirect ownership interest in the Sponsor of approximately 37%. |
(6) | The Sponsor is governed by a board of directors consisting of two directors, Adam Stone and Michael Altman. As such, Messrs. Stone and Altman have voting and investment discretion with respect to the securities held of record by the Sponsor and may each be deemed to have shared beneficial ownership of all of the PCSC Shares held directly by the Sponsor. Additionally, as of March 18, 2026, Mr. Edelman has an aggregate indirect ownership interest in the Sponsor of approximately 37%. |
(7) | Interests shown consist of 2,066,250 PCSC Class B Shares and 286,250 private placement shares, which are PCSC Class A Shares. |
(8) | Interests shown consist of PCSC Class B Shares only. |
(9) | Includes PCSC Class A Shares beneficially owned by RA Capital Healthcare Fund, L.P. (the “RA Capital Fund”), as reported on the Schedule 13G filed on June 24, 2024. RA Capital Healthcare Fund GP, LLC is the general partner of the Fund. The general partner of RA Capital is RA Capital Management GP, LLC, of which Dr. Kolchinsky and Mr. Shah are the controlling persons. RA Capital serves as investment adviser for the Fund and may be deemed a beneficial owner, for purposes of Section 13(d) of the Act, of any securities of the Issuer held by the Fund. The Fund has delegated to RA Capital the sole power to vote and the sole power to dispose of all securities held in the Fund’s portfolio, including the Issuer’s PCSC Class A Shares reported herein. Because the Fund has divested voting and investment power over the reported securities it holds and may not revoke that delegation on less than 61 days’ notice, the Fund disclaims beneficial ownership of the securities it holds for purposes of Section 13(d) of the Act. As managers of RA Capital, Dr. Kolchinsky and Mr. Shah may be deemed beneficial owners, for purposes of Section 13(d) of the Act, of any securities of the Issuer beneficially owned by RA Capital. RA Capital, Dr. Kolchinsky, and Mr. Shah disclaim beneficial ownership of the securities reported in the Schedule 13G other than for the purpose of determining their obligations under Section 13(d) of the Act, and the filing of the Schedule 13G shall not be deemed an admission that either RA Capital, Dr. Kolchinsky, or Mr. Shah is the beneficial owner of such securities for any other purpose. Includes shares of New Freenome Common Stock issuable to entities affiliated with RA Capital Management, L.P. (“RA Capital”) in connection with the PIPE Financing and the shares of New Freenome Common Stock issuable to RA Capital in exchange for RA Capital’s pre-Business Combination shares of Freenome Common Stock. The business address of RA Capital is 200 Berkeley Street, 18th Floor, Boston, MA 02116. |
(10) | Includes 286,250 shares of New Freenome Common Stock issuable with respect to and in exchange for the 286,250 private placement shares, which are PCSC Class A Shares, in connection with the Business Combination. Includes 2,066,250 shares of New Freenome Common Stock issuable to the Sponsor with respect to and in exchange for its pre-Business Combination ownership of 2,066,250 PCSC Class B Shares. |
(11) | Includes shares of New Freenome Common Stock issuable to the Perceptive PIPE Investor in connection with the PIPE Financing and shares of New Freenome Common Stock that will be issued to the Perceptive PIPE Investor with respect to and in exchange for its pre-Business Combination shares held in Freenome. For more information on securities issuable to the Perceptive PIPE Investor also see “Risk Factors—Risks Related to the Business Combination and PCSC—The Public Shareholders will experience (i) immediate dilution as a consequence of the issuance of New Freenome Common Stock as consideration in the Business Combination and in the PIPE Financing and (ii) future dilution in connection with other sources of dilution, such as the Equity Incentive Plan and the New Freenome Employee Stock Purchase Plan. Having a minority share position may reduce the influence that PCSC shareholders have on the management of New Freenome”. The Perceptive PIPE Investor, Perceptive Advisors LLC and Joseph Edelman have shared voting and dispositive power with respect to the shares held by the Perceptive PIPE Investor. Perceptive Advisors LLC serves as the investment advisor of the Perceptive PIPE Investor and may be deemed to beneficially own the securities directly held by the Perceptive PIPE Investor. Mr. Edelman is the controlling person of Perceptive Advisors LLC and may be deemed to beneficially own the securities directly held by the Perceptive PIPE Investor. Perceptive PIPE Investor, Perceptive Advisors LLC, and Mr. Edelman disclaim beneficial ownership of all such shares except to the extent of its or his pecuniary interest therein. The principal address of Perceptive Advisors LLC is 51 Astor Place, 10th Floor New York, NY 10003. |
(12) | Includes 740,264 PCSC Class A Shares beneficially owned by BIT Capital GmbH (“BIT Capital”), as reported on the Schedule 13G filed on February 14, 2026. Jan Beckers, as the managing director of BIT Capital, may be deemed to beneficially own the 740,264 PCSC Class A Shares beneficially owned by BIT Capital. Each of BIT Capital and Mr. Beckers disclaims beneficial ownership of such shares except to the extent of his or its pecuniary interest therein. The business address for each of the reporting persons is Schiffbauerdamm 1, 10117 Berlin, Germany. |
(13) | Includes 716,645 PCSC Class A Shares beneficially owned by CRCM LLC (“CRCM”), as reported on the Schedule 13G filed on February 14, 2026. CRCM has shared voting and shared dispositive power with respect to 716,645 PCSC Class A Shares. Each reporting person disclaims beneficial ownership of such shares except to the extent of his or its pecuniary interest therein. The business address for each of the reporting persons is 599 Lexington Avenue, 36th Floor, New York, New York 10022. |
(14) | Includes 640,894 PCSC Class A Shares beneficially owned by 683 Capital Partners, LP (“683 Capital Partners”), as reported on the Schedule 13G filed on February 17, 2026. 683 Capital Management, LLC (“683 Capital Management”), as the investment manager of 683 Capital Partners, may be deemed to have beneficially owned the 640,894 PCSC Class A Shares beneficially owned by 683 Capital Partners. Ari Zweiman, as the Managing Member of 683 Capital Management, may be deemed to have beneficially owned the 640,894 PCSC Class A Shares beneficially owned by 683 Capital Management. Each of 683 Capital Management and Mr. Zweiman disclaims beneficial ownership of such shares except to the extent of his or its pecuniary interest therein. The business address for each of the reporting persons is 1700 Broadway, Suite 4200, New York, New York 10019. |
(15) | Includes PCSC Class A Shares beneficially owned by Holocene Advisors, LP (“Holocene”), a Delaware limited partnership, as reported on the Schedule 13G filed on February 17, 2026. Holocene has shared voting and shared dispositive power with respect to 625,173 PCSC Class A Shares. J. Brandon Haley, as the control person of Holocene, may be deemed to beneficially own the 625,173 PCSC Class A Shares beneficially owned by Holocene. Each of Holocene and Mr. Haley disclaims beneficial ownership of such shares except to the extent of his or its pecuniary interest therein. The business address of each of the reporting persons is 15 East 26th Street, 8th Floor, New York, NY 10010. |
(16) | Includes 603,072 PCSC Class A Shares beneficially owned by One Fin Capital Management LP (“One Fin”), a Delaware limited partnership, as reported on the Schedule 13G filed on January 13, 2026. One Fin Capital Master Fund LP (the “Partnership”), a Cayman Islands limited partnership, directly holds 603,072 PCSC Class A Shares. One Fin, as the investment adviser of the Partnership, may be deemed to beneficially own the 603,072 PCSC Class A Shares held by the Partnership. One Fin Capital GP LLC, a Delaware limited liability company, as the general partner of the Partnership, may be deemed to beneficially own the 603,072 PCSC Class A Shares held by the Partnership. David MacKnight, as the control person of One Fin and One Fin Capital GP LLC, may be deemed to beneficially own the 603,072 PCSC Class A Shares held by the Partnership. Each of One Fin, One Fin Capital GP LLC and Mr. MacKnight disclaims beneficial ownership of such shares except to the extent of his or its pecuniary interest therein. The business address for each of the reporting persons is One Letterman Drive, Building C, Suite C3-400, San Francisco, CA 94129. |
(17) | Includes (i) 5,255,376 shares of New Freenome Common Stock issuable to RA Capital Fund in connection with the PIPE Financing (ii) 9,779,824 shares of New Freenome Common Stock that will be issued to RA Capital Fund with respect to and in exchange for 33,093,213 shares of its pre-Business Combination shares held in Freenome and (iii) 750,000 shares of New Freenome Common Stock that will be issued with respect to and in exchange for its PCSC Class A Shares beneficially owned by RA Capital Fund. |
(18) | Includes (i) 12,778,211 shares of New Freenome Common Stock issuable with respect to and in exchange for 43,239,233 shares of pre-Business Combination shares held in Freenome by Roche and (ii) 6,370,313 shares of New Freenome Common Stock issuable to Roche upon the conversion of the Roche Convertible Note. |
(19) | Includes 5,820,326 shares of New Freenome Common Stock issuable with respect to and in exchange for the 19,694,964 shares of pre - Business Combination shares held in Freenome by Andreessen Horowitz. |
(20) | Unless otherwise noted, the business address of each of the following individuals is Freenome Holdings, Inc., Genesis Marina, 3300 Marina Blvd, Brisbane, CA 94005. |
(*) | Less than one percent. |
(1) | The pre-Business Combination percentage of beneficial ownership in the table below is calculated based on 240,175,479 Freenome shares outstanding as of February 28, 2026 on an as converted to common shares basis. |
(2) | The post-Business Combination percentage of beneficial ownership is calculated based on 112,464,296 shares of New Freenome Common Stock outstanding, comprising of (i) 11,067,500 shares with respect to and in exchange for PCSC Shares outstanding as of the date hereof (ii) 24,000,000 PIPE Shares (iii) 77,396,796 shares issuable with respect to and in exchange for 240,175,479 shares of Freenome shares outstanding as of February 28, 2026 and (iv) 6,420,139 shares issuable upon the conversion of the Roche Convertible Note. Such amount assumes that no public shareholders have redeemed their public shares. |
(3) | The post-Business Combination percentage of beneficial ownership is calculated based on 112,464,296 shares of New Freenome Common Stock outstanding, comprising of (i) 11,067,500 shares with respect to and in exchange for PCSC Shares outstanding as of the date hereof (ii) 24,000,000 PIPE Shares (iii) 77,396,796 shares issuable with respect to and in exchange for 240,175,479 shares of Freenome shares outstanding as of February 28, 2026 and (iv) 6,420,139 shares issuable upon the conversion of the Roche Convertible Note. Such amount assumes that 6,568,122 public shares redeemed under the Aggregate Transaction Proceeds Condition Redemptions Scenario. |
(4) | Unless otherwise noted, the business address of each of the following individuals is Genesis Marina, 3300 Marina Blvd, Brisbane, CA 94005. |
(5) | Prior to the Business Combination, consists of (i) 40,987,227 shares held by Roche Holdings, Inc. Roche Holdings, Inc. is an indirect, wholly owned subsidiary of Roche Holding Ltd, a Swiss publicly held corporation. The address of Roche Holdings, Inc. is 1 DNA Way, South San Francisco, CA 94080; and (ii) 2,252,006 shares held in Freenome by Roche Finance Ltd. Roche Finance Ltd is a wholly owned subsidiary of Roche Holding Ltd, a Swiss publicly held corporation. The address of Roche Finance Ltd is Grenzacherstrasse 122, 4058 Basel, Switzerland. After the Business Combination, consists of (i) 12,119,923 shares of New Freenome Common Stock that will be issued with respect to and in exchange for its pre-Business Combination shares held in Freenome by Roche Holdings, Inc. Roche Holdings, Inc. is an indirect, wholly owned subsidiary of Roche Holding Ltd, a Swiss publicly held corporation. The address of Roche Holdings, Inc. is 1 DNA Way, South San Francisco, CA 94080; and (ii) 665,198 shares of New Freenome Common Stock that will be issued with respect to and in exchange for its pre-Business Combination shares held in Freenome by Roche Finance Ltd. Roche Finance Ltd is a wholly owned subsidiary of Roche Holding Ltd, a Swiss publicly held corporation. The address of Roche Finance Ltd is Grenzacherstrasse 122, 4058 Basel, Switzerland. |
(6) | Consists of (i) 11,762,417 shares of Common Stock held by AH Bio Fund I, L.P. (“AH Bio Fund I”), for itself and as nominee for AH Bio Fund I-B, L.P.; (ii) 4,238,514 shares of Common Stock held by AH Parallel Fund IV, L.P. (“AH Parallel IV”), for itself and as nominee for AH Parallel Fund IV-A, L.P., AH Parallel Fund IV-B, L.P., and AH Parallel Fund IV-Q, L.P.; (iii) 3,672,090 shares of Common Stock held by Andreessen Horowitz LSV Fund II, L.P. (“AH LSV Fund II”) for itself and as nominee for Andreessen Horowitz LSV Fund II-B, L.P. and Andreessen Horowitz LSV Fund II-Q, L.P.; and (iv) 21,943 shares of Common Stock held by CLF Partners, LP (“CLF”). AH Equity Partners |
(7) | Perceptive PIPE Investor, Perceptive Advisors LLC and Joseph Edelman have shared voting and dispositive power with respect to the shares held by Perceptive Life Sciences Master Fund Ltd. Perceptive Advisors LLC serves as the investment advisor of the Perceptive PIPE Investor and may be deemed to beneficially own the securities directly held by Perceptive Life Sciences Master Fund Ltd. Mr. Edelman is the controlling person of Perceptive Advisors LLC and may be deemed to beneficially own the securities directly held by Perceptive Life Sciences Master Fund Ltd., Perceptive Advisors LLC, and Mr. Edelman disclaim beneficial ownership of all such securities except to the extent of its or his pecuniary interest therein. The principal address of Perceptive Advisors LLC is 51 Astor Place, 10th Floor New York, NY 10003. |
(8) | Consists of (i) 23,194,886 shares held by RA Capital Healthcare Fund, L.P. (“RACHF”), (ii) 3,432,197 shares held by RA Capital Nexus Fund, L.P. (“Nexus”), (iii) 1,957,278 shares held by RA Capital Nexus Fund II, L.P. (“Nexus II”), (iv) 3,210,040 shares held by RA Capital Nexus Fund III, L.P. (“Nexus III,” and together with RACHF, Nexus, and Nexus II, the “RA Funds”), and (v) 1,298,812 shares held by a separately managed account. RA Capital Management, L.P. is the investment manager for the RA Funds and the separately managed account. The general partner of RA Capital Management, L.P. is RA Capital Management GP, LLC, of which Peter Kolchinsky and Rajeev Shah are the managing members. Each of RA Capital Management, L.P., RA Capital Management GP, LLC, Mr. Kolchinsky and Mr. Shah may be deemed to have voting and investment power over the shares held by the RA Funds and the separately managed account. RA Capital Management, L.P., RA Capital Management GP, LLC, Mr. Kolchinsky and Mr. Shah disclaim beneficial ownership of such shares, except to the extent of any pecuniary interest therein. The principal business address of the persons and entities listed above is 200 Berkeley Street, 18th Floor, Boston, MA 02116. |
(9) | Prior to the Business Combination, reflects (i) 4,764,271 Freenome shares outstanding held by Mr. Ennis, (ii) 1,321,739 Freenome shares outstanding held by Riley Ennis Irrevocable Trust dated 1/14/21, (iii) 7,102,470 Freenome shares underlying vested Freenome options held by Mr. Ennis and (iv) 7,210,855 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026 held by Mr. Ennis. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
(10) | Unless otherwise noted, the business address of each of the following individuals is Genesis Marina, 3300 Marina Blvd, Brisbane, CA 94005. |
(11) | Pursuant the Elliott Offer Letter, at the closing of the Business Combination, Dr. Elliott will receive additional equity awards to bring his aggregate option holdings to 0.5% and his aggregate restricted stock unit holdings to 0.5% of the Company's fully diluted capitalization as of closing. |
(12) | Prior to the Business Combination, reflects (i) no Freenome shares underlying vested Freenome options and (ii) 369,309 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
(13) | Prior to the Business Combination, reflects (i) 679,932 Freenome shares outstanding, (ii) 1,987,503 Freenome shares underlying vested Freenome options and (iii) 2,053,016 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
(14) | Prior to the Business Combination, reflects (i) 91,006 Freenome shares underlying vested Freenome options and (ii) 93,521 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
(15) | Prior to the Business Combination, reflects (i) 305,995 Freenome shares underlying vested Freenome options and (ii) 308,466 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
(16) | Prior to the Business Combination, reflects (i) 47,349 Freenome shares underlying vested Freenome options and (ii) 52,084 Freenome shares underlying Freenome options to be vested and exercisable within 60 days February 28, 2026. After the Business Combination, New Freenome shares owned reflects [•] shares of New Freenome underlying vested New Freenome options. |
Participant(1) | Shares | Total Purchase Price | ||||
Roche Holdings, Inc.(2) | 6,757,980 | $49,999,996.31 | ||||
Andreessen Horowitz LSV Fund II, L.P. as nominee(3) | 1,013,697 | $7,499,999.45 | ||||
Perceptive Life Sciences Master Fund Ltd.(4) | 2,703,192 | $19,999,998.53 | ||||
Entities affiliated with RA Capital Healthcare Fund, L.P.(5) | 13,515,959 | $99,999,985.22 | ||||
(1) | For additional details regarding these stockholders and their equity holdings, see “Beneficial Ownership of Securities.” |
(2) | Roche Holdings, Inc. together with Roche Finance LTD (collectively, “Roche”) hold five percent or more of our capital stock. Each of Moritz Hartmann and Josh Lauer were affiliated with Roche and a member of our board of directors at the time of this Series F preferred stock financing. |
(3) | Andreessen Horowitz LSV Fund II, L.P. together with AH Bio Fund I, L.P., AH Parallel Fund IV, L.P. and CLF Partners, LP (collectively, “Andreessen Horowitz”) holds five percent or more of our capital stock. Vijay Pande is affiliated with AH Bio Fund I, L.P. and was a member of our board of directors at the time of the financing. |
(4) | Such entity holds five percent or more of our capital stock. Dr. Hukkelhoven is affiliated with Perceptive Life Sciences Master Fund Ltd. and a member of our board of directors. |
(5) | Consists of (i) 10,103,180 shares of Series F preferred stock purchased by RA Capital Healthcare Fund, L.P., (ii) 202,739 shares of Series F preferred stock purchased by RA Capital Nexus Fund II, L.P. and (iii) 3,210,040 shares of Series F preferred stock purchased by RA Capital Nexus Fund III, L.P. RA Capital Healthcare Fund, L.P. together with its affiliates including Blackwell Partners LLC - Series A (collectively, RA Capital”) holds five percent or more of our capital stock. Peter Kolchinsky is a managing partner at RA Capital Healthcare Fund, L.P. and a member of our board of directors. |
• | any person who is, or at any time during the applicable period was, one of New Freenome’s executive officers, a director nominee or a member of the New Freenome Board; |
• | any person who is known by New Freenome to be the beneficial owner of more than five percent (5%) of its voting stock; and |
• | any immediate family member of any of the foregoing persons, which means any child, stepchild, parent, stepparent, spouse, sibling, mother-in-law, father-in-law, daughter-in-law, brother-in-law or sister-in-law of a director, officer or a beneficial owner of more than five percent (5%) of our voting stock, and any person sharing the household of such director, executive officer or beneficial owner of more than five percent (5%) of its voting stock. |
(1) | Number of shares reflects the assumptions made further above in the sensitivity table under “Questions and Answers for the Shareholders of PCSC—What equity stake will current PCSC shareholders and current equityholders of Freenome hold in New Freenome immediately after the consummation of the Business Combination?” Does not adjust for sources of dilution following the Closing Date. For more information on potential sources of dilution also see, “Questions and Answers for the Shareholders of PCSC—What equity stake will current PCSC shareholders and current equityholders of Freenome hold in New Freenome immediately after the consummation of the Business Combination?” |
(2) | Shareholders who become affiliates of New Freenome for purposes of Rule 144 under the Securities Act would be subject to additional resale restrictions pursuant to Rule 144, once available. |
• | 1% of the total number of New Freenome Common Stock then outstanding; or |
• | the average weekly reported trading volume of the New Freenome Common Stock during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale. |
• | the issuer of the securities that was formerly a shell company has ceased to be a shell company; |
• | the issuer of the securities is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act; |
• | the issuer of the securities has filed all Exchange Act reports and material required to be filed, as applicable, during the preceding twelve months (or such shorter period that the issuer was required to file such reports and materials), other than Form 8-K reports; and |
• | at least one year has elapsed from the time that the issuer filed current Form 10 type information with the SEC reflecting its status as an entity that is not a shell company. |
• | not less than the 90 days; and |
• | not more than the 120 days prior to the one-year anniversary of the preceding year’s annual meeting. |
• | If the shares are registered in the name of the shareholder, the shareholder should contact PCSC at its offices at Perceptive Capital Solutions Corp, 51 Astor Place, 10th Floor, New York, New York 10003 or by telephone at +1 (212) 284-2300, to inform PCSC of his, her or their request; or |
• | If a bank, broker or other nominee holds the shares, the shareholder should contact the bank, broker or other nominee directly. |
December 31, 2025 | December 31, 2024 | |||||
Assets | ||||||
Current Assets | ||||||
Cash | $865,031 | $1,129,684 | ||||
Prepaid expenses | 42,539 | 115,006 | ||||
Total Current Assets | 907,570 | 1,244,690 | ||||
Cash and investments held in Trust Account | 91,872,418 | 88,654,397 | ||||
Total Assets | $92,779,988 | $89,899,087 | ||||
Liabilities, Class A Ordinary Shares Subject to Possible Redemption and Shareholders’ Deficit | ||||||
Current Liabilities | ||||||
Accrued expenses | $2,254,244 | $210,811 | ||||
Total Current Liabilities | 2,254,244 | 210,811 | ||||
Deferred underwriting fee | 3,450,000 | 3,450,000 | ||||
Total Liabilities | 5,704,244 | 3,660,811 | ||||
Commitments and Contingencies (Note 5) | ||||||
Class A ordinary shares subject to possible redemption, 8,625,000 shares at redemption value of approximately $10.65 and $10.24 per share as of December 31, 2025 and 2024, respectively | 91,872,418 | 88,354,397 | ||||
Shareholders’ Deficit | ||||||
Preference shares, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding as of December 31, 2025 and 2024 | — | — | ||||
Class A ordinary shares, $0.0001 par value; 479,000,000 shares authorized; 286,250 shares issued and outstanding (excluding 8,625,000 shares subject to possible redemption) as of December 31, 2025 and 2024 | 29 | 29 | ||||
Class B ordinary shares, $0.0001 par value; 20,000,000 shares authorized; 2,156,250 shares issued and outstanding as of December 31, 2025 and 2024(1) | 216 | 216 | ||||
Accumulated deficit | (4,796,919) | (2,116,366) | ||||
Total Shareholders’ Deficit | (4,796,674) | (2,116,121) | ||||
Total Liabilities, Class A Ordinary Shares Subject to Possible Redemption and Shareholders’ Deficit | $92,779,988 | $89,899,087 | ||||
(1) | This number includes up to 281,250 Class B ordinary shares subject to forfeiture if the over-allotment option is not exercised in full or in part by the underwriter (Notes 4 and 6). On June 13, 2024, the underwriter exercised its over-allotment option in full as part of the closing of the Initial Public Offering. As such, 281,250 Founder Shares were no longer subject to forfeiture. |
For the Year Ended December 31, 2025 | For the Period from March 22, 2024 (Inception) Through December 31, 2024 | |||||
General and administrative expenses | $2,980,553 | $494,005 | ||||
Loss from operations | (2,980,553) | (494,005) | ||||
Other income (expense): | ||||||
Interest earned on investments held in Trust Account | 3,821,319 | 2,366,001 | ||||
Unrealized (loss) gain on investments held in Trust Account | (3,298) | 38,396 | ||||
Total other income, net | 3,818,021 | 2,404,397 | ||||
Net income | $837,468 | $1,910,392 | ||||
Weighted average shares outstanding of Class A redeemable ordinary shares | 8,625,000 | 6,104,313 | ||||
Basic and diluted net income per ordinary share, Class A redeemable ordinary shares | $0.08 | $0.23 | ||||
Weighted average shares outstanding of Class A and B non-redeemable ordinary shares(1) | 2,442,500 | 2,243,636 | ||||
Basic net income per ordinary share, Class A and B non-redeemable ordinary shares | $0.08 | $0.23 | ||||
Weighted average shares outstanding of Class A and B non-redeemable ordinary shares(1) | 2,442,500 | 2,320,880 | ||||
Diluted net income per ordinary share, Class A and B non-redeemable ordinary shares | $0.08 | $0.23 | ||||
(1) | This number includes up to 281,250 Class B ordinary shares subject to forfeiture if the over-allotment option is not exercised in full or in part by the underwriter (Notes 4 and 6). On June 13, 2024, the underwriter exercised its over-allotment option in full as part of the closing of the Initial Public Offering. As such, 281,250 Founder Shares were no longer subject to forfeiture. |
Class A Ordinary Shares | Class B Ordinary Shares | Additional Paid-in Capital | Accumulated Deficit | Total Shareholders’ Deficit | |||||||||||||||||
Shares | Amount | Shares | Amount | ||||||||||||||||||
Balance — March 22, 2024 (inception) | — | $— | — | $— | $— | $— | $— | ||||||||||||||
Issuance of Class B ordinary shares to Sponsor | — | — | 2,156,250 | 216 | 24,784 | — | 25,000 | ||||||||||||||
Sale of Private Placement Shares | 286,250 | 29 | — | — | 2,862,471 | — | 2,862,500 | ||||||||||||||
Allocated value of transaction costs to Class A ordinary shares | — | — | — | — | (15,969) | — | (15,969) | ||||||||||||||
Accretion for Class A ordinary shares subject to redemption amount | — | — | — | — | (2,871,286) | (4,026,758) | (6,898,044) | ||||||||||||||
Net income | — | — | — | — | — | 1,910,392 | 1,910,392 | ||||||||||||||
Balance – December 31, 2024 | 286,250 | 29 | 2,156,250 | 216 | — | (2,116,366) | (2,116,121) | ||||||||||||||
Accretion for Class A ordinary shares subject to redemption amount | — | — | — | — | — | (3,518,021) | (3,518,021) | ||||||||||||||
Net income | — | — | — | — | — | 837,468 | 837,468 | ||||||||||||||
Balance – December 31, 2025 | 286,250 | $29 | 2,156,250 | $216 | $— | $(4,796,919) | $(4,796,674) | ||||||||||||||
(1) | This number includes up to 281,250 Class B ordinary shares subject to forfeiture if the over-allotment option is not exercised in full or in part by the underwriter (Notes 4 and 6). On June 13, 2024, the underwriter exercised its over-allotment option in full as part of the closing of the Initial Public Offering. As such, 281,250 Founder Shares were no longer subject to forfeiture. |
For the Year Ended December 31, 2025 | For the Period from March 22, 2024 (Inception) Through December 31, 2024 | |||||
Cash Flows from Operating Activities: | ||||||
Net income | $837,468 | $1,910,392 | ||||
Adjustments to reconcile net income to net cash used in operating activities: | ||||||
Payment of operating costs through promissory note | — | 44,577 | ||||
Interest earned on investments held in Trust Account | (3,821,319) | (2,366,001) | ||||
Unrealized loss (gain) on investments held in Trust Account | 3,298 | (38,396) | ||||
Changes in operating assets and liabilities: | ||||||
Prepaid expenses and other current assets | 72,467 | (115,006) | ||||
Accrued expenses | 2,043,433 | 210,811 | ||||
Net cash used in operating activities | (864,653) | (353,623) | ||||
Cash Flows from Investing Activities: | ||||||
Investment of cash in Trust Account | — | (86,250,000) | ||||
Cash withdrawn from Trust Account for working capital purposes | 600,000 | — | ||||
Net cash provided by (used in) investing activities | 600,000 | (86,250,000) | ||||
Cash Flows from Financing Activities: | ||||||
Proceeds from sale of shares, net of underwriting discounts paid | — | 84,525,000 | ||||
Proceeds from sale of Private Placement Shares | — | 2,862,500 | ||||
Underwriter reimbursement | — | 862,500 | ||||
Repayment of promissory note – related party | — | (157,056) | ||||
Payment of offering costs | — | (359,637) | ||||
Net cash provided by financing activities | — | 87,733,307 | ||||
Net Change in Cash | (264,653) | 1,129,684 | ||||
Cash – Beginning of period | 1,129,684 | — | ||||
Cash – End of period | $865,031 | $1,129,684 | ||||
Noncash investing and financing activities: | ||||||
Deferred offering costs paid directly by Sponsor in exchange for the issuance of Class B ordinary shares | $— | $25,000 | ||||
Deferred offering costs paid through promissory note - related party | $— | $112,479 | ||||
Deferred underwriting fee payable | $— | $3,450,000 | ||||
For the Year Ended December 31, 2025 | For the Period from March 22, 2024 (Inception) Through December 31, 2024 | |||||||||||
Class A Redeemable | Class A and B Non- redeemable | Class A Redeemable | Class A and B Non- redeemable | |||||||||
Diluted net income per ordinary share: | ||||||||||||
Numerator: | ||||||||||||
Allocation of net income | $652,646 | $184,822 | $1,384,138 | $526,254 | ||||||||
Denominator: | ||||||||||||
Diluted weighted average ordinary shares outstanding | 8,625,000 | 2,442,500 | 6,104,313 | 2,320,880 | ||||||||
Diluted net income per ordinary share | $0.08 | $0.08 | $0.23 | $0.23 | ||||||||
Held to Maturity | Level | Amortized Cost | Gross Holding Gain | Fair Value | |||||||||||
December 31, 2025 | U.S. Treasury Securities (matured February 19, 2026) | 1 | $91,837,137 | $35,047 | $91,872,184 | ||||||||||
Held to Maturity | Level | Amortized Cost | Gross Holding Gain | Fair Value | |||||||||||
December 31, 2024 | U.S. Treasury Securities (matured April 3, 2025) | 1 | $88,615,571 | $38,396 | $88,653,967 | ||||||||||
As of December 31, 2025 | As of December 31, 2024 | |||||
Cash | $865,031 | $1,129,684 | ||||
Investments held in Trust Account | $91,872,418 | $88,654,397 | ||||
For the Year Ended December 31, 2025 | For the Period from March 22, 2024 (Inception) Through December 31, 2024 | |||||
General and administrative expenses | $2,980,553 | $494,005 | ||||
Interest earned on investments held in Trust Account | $3,821,319 | $2,366,001 | ||||
December 31, | ||||||
2025 | 2024 | |||||
Assets | ||||||
Current assets: | ||||||
Cash and cash equivalents | $78,558 | $67,052 | ||||
Short-term marketable securities | 138,106 | 176,414 | ||||
Accounts and other receivables | 1,307 | 1,662 | ||||
Prepaid expenses and other current assets | 8,520 | 7,475 | ||||
Total current assets | 226,491 | 252,603 | ||||
Property and equipment, net | 155,776 | 173,866 | ||||
Operating lease right-of-use assets, net | 97,055 | 100,903 | ||||
Intangible assets, net | 3,300 | 4,368 | ||||
Goodwill | 10,513 | 10,513 | ||||
Other long-term assets | 4,800 | 549 | ||||
Restricted cash | 9,118 | 9,118 | ||||
Total assets | $507,053 | $551,920 | ||||
Liabilities, Convertible Preferred Stock, and Stockholders’ Deficit | ||||||
Current liabilities: | ||||||
Accounts payable | $6,084 | $21,012 | ||||
Accrued compensation and other related benefits | 13,424 | 12,364 | ||||
Accrued expenses and other current liabilities | 3,783 | 3,465 | ||||
Deferred revenue, current | 7,123 | — | ||||
Current portion of lease liabilities | 10,114 | 5,043 | ||||
Total current liabilities | 40,528 | 41,884 | ||||
Long-term liabilities: | ||||||
Lease liabilities, net of current portion | 199,015 | 201,473 | ||||
Convertible note, at fair value | 41,600 | — | ||||
Convertible note, related party | 60,895 | — | ||||
Deferred revenue, non-current | 49,138 | — | ||||
Other long-term liabilities | 15,433 | — | ||||
Total liabilities | 406,609 | 243,357 | ||||
Commitments and contingencies (Note 9) | ||||||
Redeemable convertible preferred stock, $0.0001 par value – 213,700,719 shares authorized as of December 31, 2025 and 2024; and 212,541,832 shares issued and outstanding as of December 31, 2025 and 2024 | 1,363,580 | 1,363,580 | ||||
Stockholders’ deficit | ||||||
Common stock, $0.0001 par value – 302,184,000 shares authorized as of December 31, 2025 and 2024; 26,267,598 and 29,248,066 shares issued as of December 31, 2025 and 2024, respectively; 26,267,598 and 25,973,713 shares outstanding as of December 31, 2025 and 2024, respectively | 3 | 3 | ||||
Additional paid-in capital | 83,834 | 75,259 | ||||
Treasury stock, at cost | — | (2,619) | ||||
Accumulated other comprehensive gain | 132 | 102 | ||||
Accumulated deficit | (1,347,105) | (1,127,762) | ||||
Total stockholders’ deficit | (1,263,136) | (1,055,017) | ||||
Total liabilities, convertible preferred stock, and stockholders’ deficit | $507,053 | $551,920 | ||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Revenue: | ||||||
License and collaboration revenue | $27,139 | $— | ||||
Service and other revenue | 3,270 | 2,882 | ||||
Total revenue | 30,409 | 2,882 | ||||
Operating costs and expenses: | ||||||
Cost of services | 1,944 | 2,564 | ||||
Research and development | 197,117 | 225,749 | ||||
General and administrative | 54,817 | 66,542 | ||||
Total operating costs and expenses | 253,878 | 294,855 | ||||
Loss from operations | (223,469) | (291,973) | ||||
Other income, net: | ||||||
Interest and investment income, net | 6,914 | 17,584 | ||||
Interest expense | (2,820) | — | ||||
Other income (expense), net | 32 | (32) | ||||
Net loss | (219,343) | (274,421) | ||||
Deemed dividends | — | (6,852) | ||||
Net loss attributable to common stockholders | $(219,343) | $(281,273) | ||||
Net loss per share attributable to common stockholders, basic and diluted | $(8.28) | $(10.76) | ||||
Weighted-average shares of common stock outstanding, basic and diluted | 26,497,083 | 26,138,181 | ||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Net loss | $(219,343) | $(274,421) | ||||
Other comprehensive income (loss): | ||||||
Unrealized (loss) gain on marketable securities | (1) | 143 | ||||
Foreign currency translation adjustments | 31 | 46 | ||||
Other comprehensive income | 30 | 189 | ||||
Comprehensive loss | $(219,313) | $(274,232) | ||||
Convertible Preferred Stock | Common Stock | Additional Paid-in Capital | Treasury Stock | Accumulated Other Comprehensive (Loss) Income | Accumulated Deficit | Total Stockholders’ Deficit | ||||||||||||||||||||||
Shares | Amount | Shares | Amount | |||||||||||||||||||||||||
Balance as of December 31, 2023 | 176,864,758 | 1,099,925 | 25,413,860 | $3 | $48,532 | $(2,619) | $(87) | $(846,489) | $(800,660) | |||||||||||||||||||
Issuance of Series F convertible preferred stock, net of issuance costs | 35,677,074 | 263,655 | — | — | — | — | — | — | — | |||||||||||||||||||
Deemed dividend upon down round of convertible preferred stock | — | — | — | — | 6,852 | — | — | (6,852) | — | |||||||||||||||||||
Issuance of shares upon exercise of stock options | — | — | 559,853 | — | 593 | — | — | — | 593 | |||||||||||||||||||
Stock-based compensation expense | — | — | — | — | 19,282 | — | — | — | 19,282 | |||||||||||||||||||
Unrealized gain on available-for-sale securities | — | — | — | — | — | — | 143 | — | 143 | |||||||||||||||||||
Foreign currency translation adjustment | — | — | — | — | — | — | 46 | — | 46 | |||||||||||||||||||
Net loss | — | — | — | — | — | — | — | (274,421) | (274,421) | |||||||||||||||||||
Balance as of December 31, 2024 | 212,541,832 | 1,363,580 | 25,973,713 | 3 | 75,259 | (2,619) | 102 | (1,127,762) | (1,055,017) | |||||||||||||||||||
Retirement of treasury stock | — | — | — | — | (2,619) | 2,619 | — | — | — | |||||||||||||||||||
Issuance of shares upon exercise of stock options | — | — | 293,885 | — | 639 | — | — | — | 639 | |||||||||||||||||||
Stock-based compensation expense | — | — | — | — | 10,555 | — | — | — | 10,555 | |||||||||||||||||||
Unrealized loss on available-for-sale securities | — | — | — | — | — | — | (1) | — | (1) | |||||||||||||||||||
Foreign currency translation adjustment | — | — | — | — | — | — | 31 | 31 | ||||||||||||||||||||
Net loss | — | — | — | — | — | — | — | (219,343) | (219,343) | |||||||||||||||||||
Balance as of December 31, 2025 | 212,541,832 | $1,363,580 | 26,267,598 | $3 | $83,834 | $— | $132 | $(1,347,105) | $(1,263,136) | |||||||||||||||||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Cash flows from operating activities | ||||||
Net loss | $(219,343) | $(274,421) | ||||
Adjustments to reconcile net loss to net cash used in operating activities: | ||||||
Depreciation and amortization | 24,356 | 15,867 | ||||
Noncash lease expense | 3,848 | 10,278 | ||||
Stock-based compensation expense | 10,555 | 19,282 | ||||
Net accretion and amortization of investments in marketable securities | (4,130) | (7,942) | ||||
Loss from disposal of property and equipment | 204 | 863 | ||||
Non-cash interest expense and amortization of debt issuance costs | 1,549 | — | ||||
Changes in operating assets and liabilities: | ||||||
Accounts and other receivables | 355 | 2,303 | ||||
Prepaid expenses and other current assets | (1,045) | 4,891 | ||||
Other long-term assets | 269 | (37) | ||||
Accounts payable | (2,333) | 10,717 | ||||
Accrued compensation and other related benefits | 1,060 | (2,846) | ||||
Accrued expenses and other current liabilities | (8) | (10,536) | ||||
Deferred revenue | 56,261 | — | ||||
Operating lease liabilities | 2,769 | 35,214 | ||||
Other long-term liabilities | 14,964 | — | ||||
Net cash used in operating activities | (110,669) | (196,367) | ||||
Cash flows from investing activities | ||||||
Purchases of marketable securities | (256,563) | (436,565) | ||||
Proceeds from sales and maturities of marketable securities | 299,000 | 444,000 | ||||
Acquisition of Oncimmune, net of cash acquired | — | 165 | ||||
Purchases of property and equipment | (21,054) | (60,410) | ||||
Net cash provided by (used in) investing activities | 21,383 | (52,810) | ||||
Cash flows from financing activities | ||||||
Payments made on finance leases | (159) | (256) | ||||
Proceeds from convertible notes | 101,636 | — | ||||
Convertible notes issuance costs | (515) | — | ||||
Payment for offering costs | (840) | — | ||||
Proceeds from issuance of preferred stock | — | 263,963 | ||||
Preferred stock issuance costs | — | (308) | ||||
Proceeds from issuance of common stock upon exercise of stock options | 639 | 593 | ||||
Net cash provided by financing activities | 100,761 | 263,992 | ||||
Effect of exchange rate changes on cash and cash equivalents and restricted cash | 31 | 46 | ||||
Net increase in cash and cash equivalents | 11,506 | 14,861 | ||||
Cash, cash equivalents and restricted cash at beginning of period | 76,170 | 61,309 | ||||
Cash, cash equivalents and restricted cash at end of period | $87,676 | $76,170 | ||||
Reconciliation to amounts on the Consolidated Balance Sheets: | ||||||
Cash and cash equivalents | $78,558 | $67,052 | ||||
Restricted cash | 9,118 | 9,118 | ||||
Total cash, cash equivalents and restricted cash | $87,676 | $76,170 | ||||
Supplemental disclosures of cash flow information: | ||||||
Cash paid for interest on finance lease liabilities | $— | $20 | ||||
Lease liabilities arising from obtaining right-of-use assets | $3 | $8,708 | ||||
Supplemental disclosures of noncash investing and financing activities: | ||||||
Purchases of property and equipment in accounts payable and accrued expenses | $— | $4,627 | ||||
Deemed dividend upon down round of convertible preferred stock | — | 6,852 | ||||
Unpaid deferred offering costs included in accounts payable and accrued expenses | 3,680 | — | ||||
• | fair value of the Company’s convertible preferred stock; |
• | fair value of the Company’s common stock; |
• | impairment assessment of goodwill and intangible assets; |
• | impairment assessment and recoverability of long-lived assets; |
• | stock-based compensation expense and related assumptions; |
• | income tax uncertainties and valuation allowance for deferred tax assets; |
• | performance obligations within a contract and the determination of standalone selling price (“SSP”) for each performance obligation; and |
• | the fair value of the convertible notes. |
• | Level 1—inputs, which include unadjusted quoted prices in active markets for identical assets or liabilities that the Company has the ability to access; |
• | Level 2— inputs, which include observable inputs other than Level 1 inputs, such as quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, or other inputs that are observable or can be corroborated by observable market data for substantially the full term of the asset or liability; and |
• | Level 3— inputs, which include unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the underlying asset or liability. Level 3 assets and liabilities include those whose fair value measurements are determined using pricing models, discounted cash flow methodologies, or similar valuation techniques, as well as significant management judgment or estimation. |
• | Expected Term— The expected term represents the period that the Company’s stock-based awards are expected to be outstanding and is determined using the simplified method in accordance with the Securities and Exchange Commission (“SEC”), Staff Accounting Bulletin (“SAB”) No. 107 and 110 (based on the mid-point between the vesting date and the end of the contractual term); |
• | Expected Volatility— The expected stock price volatility assumption was determined by examining the historical volatility for industry peers, as the Company did not have any trading history for its common stock. The Company expects to continue to utilize peer volatility until such time as it has adequate historical data regarding the volatility of its own traded common stock price; |
• | Expected Risk Free Interest Rate— The risk-free interest rate assumption is based on U.S. Treasury instruments whose term was consistent with the expected term of the Company’s stock options; and |
• | Expected Dividend Yield— The Company has never paid, and does not anticipate paying in the foreseeable future, cash dividends on its common stock. Consequently, an expected dividend yield of zero was used. |
December 31, 2025 | ||||||||||||
Gross Carrying Amount | Accumulated Amortization | Net Carrying Amount | Remaining Weighted- Average Useful Life (in years) | |||||||||
Intangible assets acquired: | ||||||||||||
Acquired developed technology | $5,509 | $(2,498) | $3,011 | 3.4 | ||||||||
Customer relationships | 529 | (240) | 289 | 3.4 | ||||||||
Total intangible assets acquired | $6,038 | $(2,738) | $3,300 | |||||||||
Year Ending December 31, | Total | ||
2026 | $1,006 | ||
2027 | 1,006 | ||
2028 | 1,006 | ||
2029 | 282 | ||
Total | $3,300 | ||
December 31, 2024 | ||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||
Assets: | ||||||||||||
Cash equivalents: | ||||||||||||
Money market funds | $50,295 | $— | $— | $50,295 | ||||||||
Total cash equivalents | 50,295 | — | — | 50,295 | ||||||||
Short-term marketable securities: | ||||||||||||
U.S. treasury securities | 176,414 | — | — | 176,414 | ||||||||
Total short-term marketable securities | 176,414 | — | — | 176,414 | ||||||||
Total assets subject to fair value measurements on a recurring basis | $226,709 | $— | $— | $226,709 | ||||||||
Estimated Stock Price | $2.44 | ||
Credit Spread | 8.9% | ||
December 31, 2025 | ||||||||||||
Amortized Cost | Gross Unrealized Gain | Gross Unrealized Loss | Estimated Fair Value | |||||||||
Cash equivalents: | ||||||||||||
Money market funds | $40,320 | $— | $— | $40,320 | ||||||||
U.S. treasury securities | 29,631 | 7 | — | 29,638 | ||||||||
Total cash equivalents | 69,951 | 7 | — | 69,958 | ||||||||
Short-term marketable securities: | ||||||||||||
U.S. treasury securities | 138,029 | 77 | — | 138,106 | ||||||||
Total short-term marketable securities | 138,029 | 77 | — | 138,106 | ||||||||
Total assets measured at fair value | $207,980 | $84 | $— | $208,064 | ||||||||
December 31, 2024 | ||||||||||||
Amortized Cost | Gross Unrealized Gain | Gross Unrealized Loss | Estimated Fair Value | |||||||||
Cash equivalents: | ||||||||||||
Money market funds | $50,295 | $— | $— | $50,295 | ||||||||
Total cash equivalents | 50,295 | — | — | 50,295 | ||||||||
Short-term marketable securities: | ||||||||||||
U.S. treasury securities | 176,329 | 85 | — | 176,414 | ||||||||
Total short-term marketable securities | 176,329 | 85 | — | 176,414 | ||||||||
Total assets measured at fair value | $226,624 | $85 | $— | $226,709 | ||||||||
December 31, | ||||||
2025 | 2024 | |||||
Leasehold improvements | $147,924 | $148,909 | ||||
Laboratory machinery and equipment | 40,669 | 35,453 | ||||
Machinery & Equipment | 7,514 | 7,514 | ||||
Computer hardware and software | 4,905 | 4,941 | ||||
Furniture and fixtures | 4,140 | 4,140 | ||||
Construction in progress | 847 | 2,524 | ||||
Subtotal | 205,999 | 203,481 | ||||
Less: accumulated depreciation and amortization | (50,223) | (29,615) | ||||
Total Property and equipment, net | $155,776 | $173,866 | ||||
December 31, 2025 | December 31, 2024 | |||||
Accrued bonuses | $12,141 | $10,888 | ||||
Accrued payroll and related expenses | 916 | 1,110 | ||||
Accrued other compensation related benefits | 367 | 366 | ||||
Total Accrued compensation and other related benefits | $13,424 | $12,364 | ||||
Year Ending December 31 | |||
2026 | $8,139 | ||
2027 | 8,250 | ||
$16,389 | |||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Operating lease cost | $26,917 | $31,382 | ||||
Variable lease cost | 10,877 | 8,283 | ||||
Finance lease cost: | ||||||
Finance lease amortization | 182 | 276 | ||||
Interest on finance lease liabilities | 3 | 20 | ||||
Total lease cost | $37,979 | $39,961 | ||||
Risk-free interest rate | 4.22% | ||
Expected volatility | 76.9% | ||
Expected term (in years) | 0.92 – 1.92 | ||
Expected dividend yield | 0.0% | ||
• | Dividends Rights – The holders of shares of convertible preferred stock (the “preferred stockholders”) are entitled to receive non-cumulative dividends, as adjusted for stock splits, dividends, reclassifications or the like, prior and in preference to any declaration or payment of any dividends to the holders of shares of the Company’s common stock (“common stock,” and the holders of common stock, the “common stockholders”), when and if declared by the Company’s Board of Directors (the “Board”), at a rate of 6.0% of the applicable Original Issue Price (as defined) per annum on each outstanding share of convertible preferred stock. The Board has not declared any dividends to date. |
• | Voting Rights – The preferred stockholders are entitled to voting rights equal to the number of whole shares of common stock into which each share of convertible preferred stock could be converted. In addition, so long as at least 2,000,000 shares of Series A preferred stock are outstanding, the holders of shares of Series A preferred stock, voting together as a separate class, are entitled to elect one member of the Board. So long as at least 2,000,000 shares of Series B preferred stock are outstanding, the holders of shares of Series B preferred stock, voting together as a separate class, are entitled to elect one member of the Board. So long as at least 2,000,000 shares of Series C preferred stock are outstanding, the holders of shares of Series C preferred stock, voting together as a separate class, are entitled to elect one member of the Board. So long as at least 2,000,000 shares of Series E preferred stock are outstanding, the holders of shares of Series E preferred stock, voting together as a separate class, are entitled to elect two members of the Board. The common stockholders, voting exclusively and as a separate class, are entitled to elect one member of the Board. The preferred stockholders and the common stockholders, voting together as a single class on an as-converted basis, are entitled to elect any remaining members of the Board. |
• | Liquidation Rights – In the event of any liquidation, dissolution or winding up of the Company, including certain mergers, consolidations, and asset sales, either voluntary or involuntary, the holders of shares of convertible preferred stock then outstanding, on a pari passu basis, are entitled to receive, prior to and in preference to the common stockholders, an amount equal to the greater of (i) the applicable Original Issue Price, plus declared but unpaid dividends, or (ii) such amount per share as would have been payable had all shares of convertible preferred stock been converted into shares of common stock, as adjusted for stock splits, dividends, reclassifications or the like. If, upon occurrence of such an event, the assets and funds distributed among the holders of shares of convertible preferred stock are insufficient to permit the above payment to such holders, then the assets and funds of the Company legally available for distribution to the holders of shares of convertible preferred stock will be distributed ratably among the holders in proportion to the preferential amount each such holder is otherwise entitled to receive. Following these payments, the remaining assets and surplus funds of the Company, if any, will be distributed ratably among the common stockholders based on the number of shares of common stock held. |
• | Redemption Rights – The convertible preferred stock is not redeemable by the preferred stockholders except in connection with a Deemed Liquidation Event (as defined) which does not include the dissolution of the Company. |
• | Conversion Rights – Each share of preferred stock is convertible at the option of the holder at any time after the date of issuance into the number of shares of common stock determined by dividing the Original Issue Price by the Conversion Price (as defined). The Conversion Price for each series of convertible preferred stock was initially equal to the Original Issue Price for such series, and as of December 31, 2025, each share of convertible preferred stock (other than for the Series D and E preferred stock) is convertible into one share of common stock. The issuance of the Series F preferred stock triggered the anti-dilution protection provision for the Series D and E preferred stock. As a result, the Conversion Price per share for each of the Series D and E preferred stock was adjusted from $7.54230 and $11.6670 to $7.52334 and $11.10351, respectively, and accordingly, each share of Series D and E preferred stock is convertible into 1.0025 and 1.0507 shares of common stock. Shares of convertible preferred stock automatically convert into shares of common stock upon the earlier of (i) the closing of a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, of common stock where the gross proceeds to the Company are not less than $100.0 million, or (ii) the vote or written consent of the holders of at least a majority of the outstanding shares of convertible preferred stock voting together as a single class on an as-converted basis and the holders of at least a majority of the outstanding shares of Series C, D, E, and F preferred stock voting together as a single class on an as-converted basis. |
• | Registration Rights – The preferred stockholders have the right to request the Company to file certain registration statements with the Securities and Exchange Commission for the registration of shares related to the convertible preferred stock. The obligations of the Company regarding such registration rights include, but are not limited to, reasonable efforts to cause such registration statement to become effective, keep such registration statement effective for up to 120 days, prepare and file amendments and supplements to such registration statement and the prospectus used in connection with such registration statement, and notify each selling holder, promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any prospectus forming a part of such registration statement has been filed. The terms of the registration rights provide for the payment of certain expenses related to the registration of the shares, including a capped reimbursement of legal fees of a single special counsel for the preferred stockholders but do not impose any obligations for the Company to pay additional consideration to the holders in case a registration statement is not declared effective. |
December 31, 2025 | December 31, 2024 | |||||
Convertible preferred stock common stock equivalent, if converted | 213,907,881 | 213,907,881 | ||||
Shares available for issuance under 2016 Equity Incentive Plan | 10,804,104 | 25,715,531 | ||||
Stock-based awards outstanding | 43,985,142 | 29,367,600 | ||||
Warrants to purchase common stock | 478,060 | 478,060 | ||||
Convertible notes(1) | 17,170,902 | — | ||||
Total | 286,346,089 | 269,469,072 | ||||
(1) | The Company reasonably assumed the Convertible Notes will convert upon a public listing as defined in Note 18. |
Number of Options | Weighted- Average Exercise Price | Weighted- Average Remaining Contractual Term (in years) | Aggregate Intrinsic Value (in thousands) | |||||||||
Outstanding – December 31, 2024 | 27,066,270 | $3.10 | 7.1 | $28,242 | ||||||||
Granted | 4,992,451 | $3.93 | ||||||||||
Exercised | (293,885) | $2.54 | ||||||||||
Forfeited or canceled | (2,251,936) | $3.82 | ||||||||||
Outstanding – December 31, 2025 | 29,512,900 | $3.19 | 6.6 | $2,483 | ||||||||
Exercisable – December 31, 2025 | 23,203,315 | $3.04 | 6.1 | $2,483 | ||||||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Expected term (in years) | 6.0 | 5.9 | ||||
Expected volatility | 68.8% | 70.5% | ||||
Risk-free interest rate | 4.0% | 4.1% | ||||
Expected dividend yield | —% | —% | ||||
Number of RSUs and RSAs | Weighted- Average Grant Date Fair Value Per Share | |||||
Outstanding – December 31, 2024 | 10,052,224 | $3.54 | ||||
Granted | 5,498,038 | $3.70 | ||||
Forfeited or canceled | (1,078,020) | $3.83 | ||||
Outstanding – December 31, 2025 | 14,472,242 | $3.58 | ||||
Year Ended December 31, | ||||||
Stock-based compensation recognized as: | 2025 | 2024 | ||||
R&D expenses | $5,241 | $5,915 | ||||
G&A expenses | 5,314 | 13,367 | ||||
Total | $10,555 | $19,282 | ||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Numerator: | ||||||
Net loss | $(219,343) | $(274,421) | ||||
Deemed dividends | — | (6,852) | ||||
Net loss attributable to common stockholders | $(219,343) | $(281,273) | ||||
Denominator: | ||||||
Weighted-average shares of common stock outstanding – basic and diluted | 26,497,083 | 26,138,181 | ||||
Net loss per share attributable to common stockholders – basic and diluted | $(8.28) | $(10.76) | ||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Convertible preferred stock | 213,907,881 | 213,907,881 | ||||
Options to purchase common stock | 29,512,900 | 19,315,376 | ||||
Restricted stock units issued and outstanding | 14,472,242 | 10,052,224 | ||||
Warrants to purchase common stock | 49,500 | 49,500 | ||||
Convertible notes | 17,170,902 | 0 | ||||
Total | 275,113,425 | 243,324,981 | ||||
Year Ended December 31, | ||||||
2025 | 2024 | |||||
Domestic | $(218,554) | $(273,488) | ||||
Foreign | (789) | (933) | ||||
Loss before income taxes | $(219,343) | $(274,421) | ||||
(1) | For the year ended December 31, 2025, California comprises the majority of the tax effect in this category. |
Year Ended December 31, | ||||||
2025 | 2024 | |||||
United States | $27,458 | $790 | ||||
International | 2,951 | 2,092 | ||||
Total Revenue | $30,409 | $2,882 | ||||
Page | |||||||||
Annex A | Other Investors | |||||
Annex B | Key Supporting Company Stockholders | |||||
Annex C | Required Governing Documents Proposals | |||||
Exhibit A | Form of Sponsor Letter Agreement | |||||
Exhibit B | Form of Investor Subscription Agreement | |||||
Exhibit C | Form of Investor Rights Agreement | |||||
Exhibit D | Form of Lock-Up Agreement | |||||
Exhibit E | Form of Transaction Support Agreement | |||||
Exhibit F | Form of PCSC Certificate of Incorporation | |||||
Exhibit G | Form of PCSC Bylaws | |||||
Exhibit H | Form of PCSC Incentive Equity Plan | |||||
Exhibit I | Form of PCSC Employee Stock Purchase Plan | |||||
PERCEPTIVE CAPITAL SOLUTIONS CORP | ||||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Chief Executive Officer | |||||
STARNET MERGER SUB I, CORP. | ||||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Chief Executive Officer and Director | |||||
STARNET MERGER SUB II, LLC | ||||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Authorized Person | |||||
FREENOME HOLDINGS, INC. | ||||||
By: | /s/ Aaron Elliott | |||||
Name: | Aaron Elliott Ph.D. | |||||
Title: | Chief Executive Officer | |||||
PERCEPTIVE CAPITAL SOLUTIONS HOLDINGS | ||||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Director | |||||
PERCEPTIVE CAPITAL SOLUTIONS CORP | ||||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Director | |||||
FREENOME HOLDINGS, INC.: | ||||||
By: | /s/ Aaron Elliott Ph.D. | |||||
Name: | Aaron Elliott Ph.D. | |||||
Title: | Chief Executive Officer | |||||
CLASS B HOLDERS: | |||
/s/ Mark C. McKenna | |||
Mark C. McKenna | |||
/s/ Kenneth Song | |||
Kenneth Song | |||
/s/ Harlan W. Waksal | |||
Harlan W. Waksal | |||
A. | QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable) |
☐ | Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (a “QIB”) |
☐ | Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB. |
B. | ACCREDITED INVESTOR STATUS (Please check the box) |
☐ | Subscriber is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.” |
C. | ACCREDITED INVESTOR STATUS (Please check the box) |
☐ | Subscriber is an “accredited investor” (within the meaning of Rule 501(a)(5) or (6) of Regulation D under the Securities Act). |
D. | AFFILIATE STATUS (Please check the applicable box) |
☐ | is: |
☐ | is not: |
☐ | Any bank as defined in section 3(a)(2) of the Securities Act of 1933 (the “Act”), or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity; any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934; any investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state; any investment adviser relying on the exemption from registering with the Commission under section 203(l) or (m) of the Investment Advisers Act of 1940; any insurance company as defined in section 2(a)(13) of the Act; any investment company registered under the Investment Company Act of 1940 or a business development company as defined in section 2(a)(48) of that act; any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958; any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
☐ | Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000; |
☐ | Any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in section 3(21) of such act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or if the employee benefit plan has total assets in excess of $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors; |
☐ | Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940; |
☐ | Any organization described in section 501(c)(3) of the Internal Revenue Code, corporation, Massachusetts or similar business trust, partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000; |
☐ | Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence must not be included as an asset; (b) indebtedness secured by the person’s primary residence up to the estimated fair market value of the primary residence must not be included as a liability (except that if the amount of such indebtedness outstanding at the time of calculation exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess must be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the residence must be included as a liability; |
☐ | Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or |
☐ | Any trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person. |
PERCEPTIVE CAPITAL SOLUTIONS CORP | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
PCSC: | ||||||
FREENOME, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for Notices: | ||||||
COMPANY: | ||||||
FREENOME HOLDINGS, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for Notices: | ||||||
SPONSOR: | ||||||
PERCEPTIVE CAPITAL SOLUTIONS HOLDINGS | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for Notices: | ||||||
PERCEPTIVE: | ||||||
[•] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for Notices: | ||||||
PCSC EXISTING INVESTORS: | ||||||
[•] | ||||||
Address for Notices: | ||||||
FREENOME HOLDERS: | ||||||
[Entity Freenome Holders] | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
Address for Notices: | ||||||
[Individual Freenome Holders] | ||||||
Address for Notices: | ||||||
Signature of Stockholder | ||||||
Print Name of Stockholder | ||||||
Its: | ||||||
Address: | ||||||
Agreed and Accepted as of , 20 | ||||||
[•] | ||||||
By: | ||||||
Name: | ||||||
Its: | ||||||
1. | Subject to the exceptions set forth in Section 3, each Holder shall not, without the prior written consent of the board of directors of PubCo, Transfer any Lock-up Shares until the end of the Lock-up Period. |
2. | As used herein: |
(a) | the term “Lock-up Period” means the period beginning on the Closing Date and ending on the date six (6) months after the Closing Date. |
(b) | the term “Lock-up Shares” means any shares of Common Stock held by a Holder immediately after the Closing, not including the Common Stock issued or purchased pursuant to those certain subscription agreements by and between PCSC and Holders, dated as of December 5, 2025. |
(c) | the term “Transfer” means (i) sell, offer to sell, contract or agree to sell, assign, transfer (including by operation of law), hypothecate, pledge, distribute, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, file (or participate in the filing of) a registration statement with the SEC or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within |
(d) | the term “Permitted Transferees” means, prior to the expiration of the Lock-up Period, any person or entity to whom such Lock-up Holder is permitted to transfer such shares of Common Stock prior to the expiration of the Lock-up Period pursuant to paragraph 3; and |
3. | The restrictions set forth in paragraph 1 shall not apply to: |
(a) | a Transfer to PubCo’s officers or directors, any affiliate or family member of any of PubCo’s officers or directors, any members or partners of the Holder or their affiliates, any affiliates of the Holder, or any employees of such affiliates; |
(b) | in the case of an individual, a Transfer by gift to a member of the individual’s immediate family (as defined below), or to a trust, the beneficiary of which is the individual or a member of the individual’s immediate family or an affiliate of such person, or to a charitable organization; |
(c) | in the case of an individual, Transfers by virtue of laws of descent and distribution upon death of the individual; |
(d) | in the case of an individual, Transfers by operation of law or pursuant to a qualified domestic relations order; |
(e) | in the case of an individual, Transfers to a partnership, limited liability company or other entity of which the undersigned and/or the immediate family (as defined below) of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests; |
(f) | in the case of an entity, Transfers to any direct or indirect partners, members or equity holders of such entity, or any related investment funds or vehicles controlled or managed by such persons or entities or their respective affiliates; |
(g) | in the case of an entity that is a trust, Transfers to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; |
(h) | in the case of an entity, Transfers by virtue of the laws of the entity’s jurisdiction of formation or incorporation or the entity’s organizational documents upon dissolution of the entity; |
(i) | Transfers to any other Holders, any affiliates of such other Holders or their Permitted Transferees or any related investment funds or vehicles controlled or managed by such persons or entities or their respective affiliates; |
(j) | the exercise of stock options or warrants to purchase shares of Common Stock or the vesting of stock awards of Common Stock and any related transfer of shares of Common Stock to PubCo in connection therewith (x) deemed to occur upon the “cashless” or “net” exercise of such options or warrants or (y) for the purpose of paying the exercise price of such options or warrants or for paying taxes due as a result of the exercise of such options or warrants, the vesting of such options, warrants or stock awards, or as a result of the vesting of such shares of Common Stock, it being understood that all shares of Common Stock received upon such exercise, vesting or transfer will remain subject to the restrictions of this Agreement during the Lock-Up Period; |
(k) | Transfers to PubCo pursuant to any contractual arrangement in effect at the Closing that provides for the repurchase by PubCo or forfeiture of Common Stock or other securities convertible into or exercisable or exchangeable for Common Stock in connection with the termination of the Holder’s service to PubCo; |
(l) | the entry, by the Holder, at any time after the Closing, of any trading plan providing for the sale of shares of Common Stock by the Holder, which trading plan meets the requirements of Rule 10b5-l(c) under the Exchange Act, provided, however, that such plan does not provide for, or permit, the sale of any shares of Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required regarding such plan during the Lock-Up Period; and |
(m) | Transfers in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by PubCo’s board of directors or a duly authorized committee thereof or other similar transaction which results in all of PubCo’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property. |
4. | For the avoidance of doubt, each Holder shall retain all of its rights as a stockholder of PubCo with respect to the Lock-up Shares during the Lock-Up Period, including the right to vote any Lock-up Shares that are entitled to vote. |
5. | In furtherance of the foregoing, PubCo, and any duly appointed transfer agent for the registration or transfer of the securities described therein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement, and such purported Transfer shall be null and void ab initio. In addition, during the Lock-Up Period, each certificate or book-entry position evidencing the Lock-Up Shares shall be marked with a legend in substantially the following form, in addition to any other applicable legends: |
6. | PubCo represents that it has not entered into any side letter or agreement with any Holder which provides any rights or benefits to such Holder that are materially more favorable to such Holder than the rights and benefits in this Agreement and will not enter into any such side letter or agreement unless such rights and benefits are also offered to the other Holders. PubCo agrees that this Agreement shall not be amended or modified, and no terms or conditions thereof waived, in a manner that benefits any Holder, unless the terms of such amendment, modification or waiver is also offered to the other Holders. |
7. | Notwithstanding the other provisions set forth herein, PubCo’s board of directors may, in its sole discretion, determine to waive, amend, or repeal the restrictions set forth in paragraph 1 above, whether in whole or in part; provided, that any such waiver, amendment or repeal shall (i) not make such restrictions more restrictive or apply for a longer period of time, and (ii) apply to each Holder. |
8. | This Agreement, together with the agreements referenced herein, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein. No provision of this Agreement or any of the agreements referenced herein may be explained or qualified by any agreement, negotiations, understanding, discussion, conduct or course of conduct or by any trade usage. Except as otherwise expressly stated herein or in any of the agreements referenced herein, there is no condition precedent to the effectiveness of any provision hereof or thereof. |
9. | Sections 8.2 (Entire Agreement; Assignment), 8.3 (Amendment), 8.5 (Governing Law), 8.10 (Severability), 8.11 (Counterparts; Facsimile Signatures), 8.13 (No Recourse), 8.15 (Waiver of Jury Trial) and 8.16 (Submission to Jurisdiction) of the Business Combination Agreement are each hereby incorporated by reference into this Agreement as set forth herein (including any relevant definitions contained in any such sections), mutatis mutandis. |
10. | This Agreement shall terminate on the expiration of the Lock-up Period. |
PubCo: | |||||||||
[•] | |||||||||
By: | |||||||||
Name: | |||||||||
Title: | |||||||||
Address for Notices: | |||||||||
SPONSOR: | |||||||||
PERCEPTIVE CAPITAL SOLUTIONS HOLDINGS | |||||||||
By: | |||||||||
Name: | |||||||||
Title: | |||||||||
Address for Notices: | |||||||||
PERCEPTIVE: | |||||||||
[•] | |||||||||
By: | |||||||||
Name: | |||||||||
Title: | |||||||||
Address for Notices: | |||||||||
PCSC EXISTING INVESTORS: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||
COMPANY EXISTING STOCKHOLDERS: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||
[•] | |||
Address for Notices: | |||

(a) | Immediately prior to the Domestication, PCSC Class A Shares held by the PCSC Class A Shareholders who duly elect to exercise the right of the holders of PCSC Class A Shares to redeem all or a portion of their PCSC Class A Shares as set forth in the Governing Documents of PCSC (the “PCSC Shareholder Redemption”) will have their PCSC Class A Shares redeemed and canceled and such PCSC Class A Shareholders will cease to have any rights as shareholders of PCSC other than the right to be paid their pro rata share of the Trust Account; |
(b) | At least one Business Day prior to the Closing Date, prior to the time at which the Effective Time occurs, PCSC shall transfer by way of continuation from the Cayman Islands to Delaware and domesticate as a Delaware corporation in accordance with the DGCL (the “Domestication”); |
(c) | On the Closing Date, following the Domestication, at the Effective Time, Merger Sub I will merge with and into the Company, with the Company continuing as the surviving corporation (the “First Merger”) and, after giving effect to the First Merger, each Company Share will be automatically canceled and extinguished and will be automatically converted, as of the Effective Time, into the right to receive a number of PCSC Shares equal to the Exchange Ratio, in each case, on the terms and subject to the conditions set forth in the Agreement (collectively, the total number of PCSC shares of common stock to be issued for the Company Shares is the “Consideration”); |
(d) | On the Closing Date, as part of the same overall transaction as the First Merger, at the Second Effective Time, the surviving corporation of the First Merger will merge with and into Merger Sub II with Merger Sub II continuing as the surviving corporation (the “Second Merger” and together with the First Merger, the “Mergers”); |
(e) | Concurrently with the execution of the Agreement, the PIPE Investors are each entering into the Investor Subscription Agreements, pursuant to which, among other things, each PIPE Investor has agreed to subscribe for and purchase on the Closing Date, and PCSC has agreed to issue and sell to the each PIPE Investor on the Closing Date immediately following the Closing, the number of PCSC Shares set forth in the applicable Investor Subscription Agreement in exchange for the purchase price set forth therein (the financing under all PIPE Subscription Agreements, collectively, the “PIPE Financing”), in each case, on the terms and subject to the conditions set forth in the applicable Investor Subscription Agreement; and |
(f) | Concurrently with the execution of the Agreement, the Sponsor, the Other Class B Holders, PCSC, and the Company are entering into the Sponsor Letter Agreement, pursuant to which, among other things, the Sponsor and each Other Class B Shareholder has agreed to (i) vote in favor of the Agreement and the transactions contemplated by the Agreement (including the Mergers), and (ii) waive any adjustment to the conversion ratio set forth in the Governing Documents of PCSC or any other anti-dilution or similar protection, in each case, with respect to the PCSC Class B Shares, in each case, on the terms and subject to the conditions set forth in the Sponsor Letter Agreement. |
(a) | reviewed a draft of the agreed form, dated November 12, 2025, of the Sponsor Letter Agreement; |
(b) | reviewed a draft, dated December 3, 2025, of the Agreement; |
(c) | reviewed a draft, dated November 3, 2025, of the Investor Subscription Agreements (the drafts described in (a) through (c), the “Reviewed Transaction Documents”); |
(d) | reviewed certain publicly available business and financial information relating to PCSC and the Company; |
(e) | reviewed certain historical financial information and other data relating to the Company that were provided to us by the management of PCSC, approved for our use by PCSC and not publicly available; |
(f) | reviewed certain management data relating to the business prospects of the Company that were provided to us by the management of PCSC, approved for our use by PCSC and not publicly available; |
(g) | conducted discussions with members of the senior management of the Company concerning the business, operations, historical financial results and financial prospects of the Company and its addressable market and the Transaction; |
(h) | reviewed current and historical market prices of the PCSC Class A Shares; |
(i) | reviewed certain financial and market data of the Company and compared that data with publicly available data for certain other companies similar to the Company; |
(j) | reviewed certain pro forma effects relating to the Transaction, including estimated transaction costs and the effects of anticipated financings, approved for our use by PCSC; and |
(k) | conducted such other financial studies, analyses and investigations, and considered such other information, as we deemed necessary or appropriate. |

Item 20. | Indemnification of Directors and Officers. |
Item 21. | Exhibits and Financial Statement Schedules. |
(a) | The following exhibits are filed as part of this registration statement: |
* | Filed herewith. |
** | To be filed by Amendment. |
† | Certain schedules and similar attachments to this exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish a copy of all omitted schedules and similar attachments to the SEC upon its request. |
# | Portions of this exhibit have been omitted because they are both (i) not material and (ii) the type of information that the Co-Registrant treats as private or confidential. |
+ | Denotes management contract or compensatory plan or arrangement. |
Item 22. | Undertakings. |
(a) | The undersigned registrant hereby undertakes as follows: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) | That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for the purpose of determining any liability under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(6) | That prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. |
(7) | That every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(b) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the undersigned pursuant to the foregoing provisions, or otherwise, the undersigned has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the undersigned of expenses incurred or paid by a director, officer or controlling person of the undersigned in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the undersigned will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(c) | The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the proxy statement/prospectus pursuant to Items 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
(d) | The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
Date: April 28, 2026 | PERCEPTIVE CAPITAL SOLUTIONS CORP | |||||
By: | /s/ Adam Stone | |||||
Name: | Adam Stone | |||||
Title: | Chief Executive Officer | |||||
Signature | Title | Date | ||||
/s/ Joseph Edelman | Chairman of the Board of Directors | April 28, 2026 | ||||
Joseph Edelman | ||||||
/s/ Adam Stone | Chief Executive Officer and Director (Principal Executive Officer) | April 28, 2026 | ||||
Adam Stone | ||||||
/s/ Michael Altman | Chief Business Officer and Director | April 28, 2026 | ||||
Michael Altman | ||||||
/s/ Sam Cohn | Chief Financial Officer (Principal Financial and Accounting Officer) | April 28, 2026 | ||||
Sam Cohn | ||||||
/s/ Mark C. McKenna | Director | April 28, 2026 | ||||
Mark C. McKenna | ||||||
/s/ Kenneth Song | Director | April 28, 2026 | ||||
Kenneth Song | ||||||
/s/ Harlan W. Waksal | Director | April 28, 2026 | ||||
Harlan W. Waksal | ||||||
By: | /s/ Adam Stone | ||
Adam Stone Attorney-In-Fact | |||
Date: April 28, 2026 | FREENOME HOLDINGS, INC. | |||||
By: | /s/ Aaron Elliott | |||||
Name: | Aaron Elliott, Ph.D. | |||||
Title: | Chief Executive Officer | |||||
Signature | Title | Date | ||||
/s/ Aaron Elliott | Chief Executive Officer (Principal Executive Officer) | April 28, 2026 | ||||
Aaron Elliott, Ph.D. | ||||||
/s/ Linh H. Le | Chief Financial Officer (Principal Financial and Accounting Officer) | April 28, 2026 | ||||
Linh H. Le | ||||||
/s/ Ann Costello | Director | April 28, 2026 | ||||
Ann Costello | ||||||
/s/ Carole Nuechterlein | Director | April 28, 2026 | ||||
Carole Nuechterlein | ||||||
/s/ Deepika Pakianathan | Director | April 28, 2026 | ||||
Deepika Pakianathan, Ph.D. | ||||||
/s/ Ellen Hukkelhoven | Director | April 28, 2026 | ||||
Ellen Hukkelhoven, Ph.D. | ||||||
/s/ Randal Scott | Director | April 28, 2026 | ||||
Randal Scott, Ph.D. | ||||||
/s/ Peter Kolchinsky | Director | April 28, 2026 | ||||
Peter Kolchinsky, Ph.D. | ||||||
/s/ Douglas VanOort | Director | April 28, 2026 | ||||
Douglas VanOort | ||||||
By: | /s/ Adam Stone | ||
Name: | Adam Stone | ||
Title: | Authorized Representative | ||
|
1.
|
The Corporation was originally incorporated on the 22nd day of March, 2024 under the laws of the Cayman Islands.
|
|
2.
|
The name of the Corporation immediately prior to the
filing of this Certificate of Domestication is Perceptive Capital Solutions Corp.
|
|
3.
|
The name of the Corporation as set forth in the Certificate of Incorporation is Freenome Holdings, Inc.
|
|
4.
|
The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of the
Corporation immediately prior to the filing of this Certificate of Domestication is the Cayman Islands.
|
|
5.
|
The domestication has been approved in the manner provided for by the document, instrument, agreement or other writing, as the case
may be, governing the internal affairs of the Corporation and the conduct of its business or by applicable non-Delaware law, as appropriate.
|
|
PERCEPTIVE CAPITAL SOLUTIONS CORP
|
||
|
By:
|
||
|
Name:
|
Adam Stone
|
|
|
Title:
|
Chief Executive Officer
|
|
|
Secretary
|
|
[Corporate Seal]
Delaware
|
|
Chief Executive Officer
|
|
TEN COM
|
-- as tenants in common
|
|
TEN ENT
|
-- as tenants by the entireties
|
|
JT TEN
|
-- as joint tenants with right of survivorship and not as tenants in common
|
|
UNIF GIFT MIN ACT --
|
|
Custodian
|
|
|
|
(Cust)
|
|
(Minor)
|

![]() |
Goodwin Procter LLP
100 Northern Ave.
Boston, MA 02210
goodwinlaw.com
+1 617 570 1000
|
| Re: |
Federal Tax Consequences Relating to (i) the Merger of StarNet Merger Sub I, Corp. with and into Freenome Holdings, Inc., and (ii) the Merger of Freenome Holdings, Inc. with and into StarNet Merger Sub II, LLC
|
![]() |
Goodwin Procter LLP
100 Northern Ave.
Boston, MA 02210
goodwinlaw.com
+1 617 570 1000
|
![]() |
Goodwin Procter LLP
100 Northern Ave.
Boston, MA 02210
goodwinlaw.com
+1 617 570 1000
|
|
Very truly yours,
|
|
|
/s/ Goodwin Procter LLP
|
|
|
Goodwin Procter LLP
|
Exhibit 10.14
CERTAIN INFORMATION CONTAINED IN THIS EXHIBIT, MARKED BY [***], HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE THE REGISTRANT HAS DETERMINED THAT IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.
Collaboration and License Agreement
by and between
Exact Sciences Corporation
and
Freenome Holdings, Inc.
Dated August 3, 2025
TABLE OF CONTENTS
Page
SCHEDULES
| Schedule 1.40 | Confidence Interval |
| Schedule 1.46 | Existing CRC Product |
| Schedule 1.95 | Existing Freenome Patent Rights |
| Schedule 1.99 | Existing Freenome Trademarks |
| Schedule 1.102 | FTE Rate |
| Schedule 1.120 | Knowledge |
| Schedule 1.189 | Upstream Agreements |
| Schedule 1.192 | V1 Collaboration Product Standards |
| Schedule 1.194 | V2 Collaboration Product Standards |
| Schedule 4.7 | Right of Reference |
| Schedule 5.2 | Service Schedule |
| Schedule 5.5.2 | Billing of Third Parties |
| Schedule 11.2 | Schedule of Exceptions |
EXHIBITS
| Exhibit A | Initial Development Plan |
CoLLABORATION and LICENSE AGREEMENT
This Collaboration and License Agreement (this “Agreement”), entered into as of August 3, 2025 (the “Effective Date”), is by and between Exact Sciences Corporation, a corporation organized under the laws of Delaware, with a principal place of business at 5505 Endeavor Lane, Madison, WI 53719 (“Exact”), and Freenome Holdings, Inc., a company organized under the laws of Delaware, with a principal place of business at Genesis Marina, 3300 Marina Boulevard, Brisbane, CA 94005 (“Freenome”). Freenome and Exact are referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Freenome is a medical diagnostics company engaged in the research and development of multiomic diagnostic products for the early detection of cancers in humans;
WHEREAS, Exact possesses expertise in developing and commercializing diagnostic products;
WHEREAS, Freenome and Exact desire to expedite access to certain diagnostic and screening blood-based tests for colorectal cancer through a co-exclusive commercialization license for such tests prior to their regulatory approval in the United States, with the goal of expanding distribution of such tests as laboratory developed tests;
WHEREAS, the Parties wish for Exact to subsequently assume the exclusive right and responsibility to commercialize such diagnostic products in the United States following regulatory approval for such products, if and when obtained (which may occur as early as [***]), on the terms and conditions set forth herein; and
WHEREAS, if regulatory approval is not obtained for such products, the Parties may continue with their co-exclusive relationship in respect of laboratory developed tests, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth herein, the Parties hereby agree as follows:
Unless specifically set forth to the contrary herein, the following terms, whether used in the singular or plural, will have the respective meanings set forth below:
| 1.1. | “10-Day VWAP” means, as of a given date, the volume-weighted average sales price per share of common stock of Freenome (or its applicable successor entity) taken to four decimal places on the applicable securities exchange over the ten (10)-consecutive trading day period immediately preceding such date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source reasonably selected by Exact). |
| 1.2. | “Accounting Standard” means U.S. Generally Accepted Accounting Principles (GAAP), as generally and consistently applied throughout a Party’s organization. |
| 1.3. | “Affiliate” means, with respect to a Person, any other Person that (directly or indirectly) controls, is controlled by or is under common control with such Person, whether now or in the future, but so long as such control exists. For purposes of this Agreement, a Person will be deemed to control another Person if it owns or controls, directly or indirectly, more than fifty percent (50%) of the equity securities of such other Person entitled to vote in the election of directors (or, in the case that such other Person is not a corporation, for the election of the corresponding managing authority), or otherwise has the power to direct the management and policies of such other Person, whether through ownership of voting securities, by contract or otherwise. |
| 1.4. | “Agreement” has the meaning set forth in the preamble. |
| 1.5. | “AIS Directory” means [***]. |
| 1.6. | “Alliance Manager” has the meaning set forth in Section 2.1 (Alliance Managers). |
| 1.7. | “Alternative Development Milestone Event” has the meaning set forth in Section 8.2.2 (Alternative Development Milestone Payments). |
| 1.8. | “Alternative Development Milestone Payment” has the meaning set forth in Section 8.2.2 (Alternative Development Milestone Payments). |
| 1.9. | “Antitrust Agency” has the meaning set forth in Section 14.3.1 (Cooperation; General). |
| 1.10. | “Antitrust Clearance Date” has the meaning set forth in Section 14.1 (Antitrust Clearance Date). |
| 1.11. | “Antitrust Laws” means any Applicable Laws designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade. |
| 1.12. | “Applicable Contracted Coverage” means [***]. |
| 1.13. | “Applicable Law” means all applicable laws, statutes, rules, regulations, orders, judgments, injunctions, ordinances, codes, principles of common law and other pronouncements having the binding effect of law of any Governmental Authority. |
| 1.14. | “Audited Party” has the meaning set forth in Section 8.8 (Records and Audits). |
| 1.15. | “Auditing Party” has the meaning set forth in Section 8.8 (Records and Audits). |
| 1.16. | “Auditor” has the meaning set forth in Section 8.8 (Records and Audits). |
| 1.17. | “Background Know-How” means, with respect to a Party, all Know-How owned or in-licensed by such Party or any of its Affiliates (solely or jointly with any Third Party) as of the Effective Date or developed, generated, or acquired by such Party independently from the performance of activities under this Agreement during the Term. |
| 1.18. | “Background Patent” means, with respect to a Party, any Patent Right owned or in-licensed by such Party or any of its Affiliates (solely or jointly with any Third Party) as of the Effective Date or during the Term that claims any Background Know-How of such Party. |
| 1.19. | “Background Technology” means, with respect to a Party, the Background Know-How and Background Patents of such Party. |
| 1.20. | “Bankruptcy Laws” has the meaning set forth in Section 13.5.1 (Section 365(n)). |
| 1.21. | [***] |
| 1.22. | “Breaching Party” has the meaning set forth in Section 13.6.3 (Process for Termination). |
| 1.23. | “Bring-Down Date” means with respect to representations and warranties made by Freenome, the date that Freenome delivers a Disclosure Letter to Exact. |
| 1.24. | “Business Day” means a calendar day other than a Saturday, Sunday or a bank or other public holiday in San Francisco, California or Madison, Wisconsin. |
| 1.25. | “Calendar Quarter” means each of the three (3) month periods ending March 31, June 30, September 30 and December 31; provided that the first Calendar Quarter of the Term extends from the Effective Date to the end of the then-current Calendar Quarter, and the last Calendar Quarter extends from the first day of such Calendar Quarter until the effective date of the termination or expiration of this Agreement. |
| 1.26. | “Calendar Year” means each period beginning on January 1 and ending on December 31; provided that the first Calendar Year of the Term extends from the Effective Date to December 31 of the then-current Calendar Year, and the last Calendar Year extends from January 1 of such Calendar Year until the effective date of the termination or expiration of this Agreement. |
| 1.27. | “Change of Control” means, with respect to a Party, (a) a merger, consolidation, recapitalization or reorganization of such Party with a Third Party that results in the holders of beneficial ownership (other than by virtue of obtaining irrevocable proxies for purposes of management voting on matters as directed by beneficial owners) of the voting securities of such Party outstanding immediately prior thereto, or any securities into which such voting securities have been converted or exchanged, ceasing to hold beneficial ownership of more than fifty percent (50%) of the combined voting power of the surviving entity or the parent of the surviving entity immediately after such merger, consolidation, recapitalization or reorganization, (b) a transaction or series of related transactions in which a Third Party, together with its Affiliates, becomes the direct or indirect beneficial owner of more than fifty percent (50%) of the combined voting power of the outstanding securities of such Party, or (c) the sale or other transfer to a Third Party of all or substantially all of such Party’s and its controlled Affiliates’ assets. [***] |
| 1.28. | “Claim” has the meaning set forth in Section 12.1 (Indemnification by Freenome). |
| 1.29. | “CLIA” means the Clinical Laboratory Improvement Amendments of 1988, its implementing regulations and guidance, and any corresponding or similar foreign laws, regulations or guidance. |
| 1.30. | “Clinical Trial” means any study in humans (including a non-interventional study) conducted to obtain information regarding a diagnostic or screening product (including, as applicable, Collaboration Products or MCED Products), including information relating to the safety, efficacy, Sensitivity and Specificity of such diagnostic or screening product. |
| 1.31. | “CMS” means the unit of the U.S. Department of Health and Human Services known as the Centers for Medicare and Medicaid Services or any successor Governmental Authority or unit thereof having substantially the same function. |
| 1.32. | “COGS” means [***]. |
| 1.33. | “Collaboration Know-How” means any Know-How conceived, developed or reduced to practice during the Term solely by or on behalf of a Party or its Affiliates, or jointly by or on behalf of both Parties or their respective Affiliates, in each case, in the performance of any activities under this Agreement during the Term. |
| 1.34. | “Collaboration Patent Right” means any Patent Right that claims or discloses any Collaboration Know-How. |
| 1.35. | “Collaboration Product” means any existing or future product or service, whether marketed or sold alone or with one or more other products or services, that includes a CRC Product, excluding an MCED Product. |
| 1.36. | “Commercialization” means any and all activities directed to the marketing, promotion, distribution, offering for sale, sale, having sold, importing, having imported, use, display, performance, reproduction, making derivatives of or other commercialization of a diagnostic or screening product (including, as applicable, Collaboration Products or MCED Products) (including pre-launch activities, booking sales, performing laboratory tests, conducting market access activities, conducting revenue cycle management, obtaining billing codes, obtaining coverage under governmental and non-governmental payor policies, and providing customer care), but expressly excluding activities directed to Manufacturing or Development. “Commercialize,” “Commercializing” and “Commercialized” will be construed accordingly. |
| 1.37. | “Commercially Reasonable Efforts” means [***]. |
| 1.38. | “Competitive Infringement” means the making, using, selling, offering for sale, importing or exporting by a Third Party of a Competitive Product in the Field in the Territory that infringes, misappropriates or violates any Freenome Know-How or Joint Collaboration Know-How or a Valid Claim of a Freenome Patent Right or Joint Collaboration Patent Right in each case in the Field in the Territory. |
| 1.39. | “Competitive Product” means any in vitro, blood-based product or service (including any Laboratory Developed Test) for the diagnosis, screening or evaluation of colorectal cancer or colorectal pre-cancer (e.g., advanced adenoma). |
| 1.40. | “Confidence Interval” means, with respect to a Collaboration Product, the applicable confidence interval for such Collaboration Product as forth in Schedule 1.40 (Confidence Interval). |
| 1.41. | “Confidential Information” means (a) any and all confidential or proprietary information and data, including scientific, pre-clinical, clinical, regulatory, manufacturing, marketing, financial and commercial information or data, unpublished patent applications and information related thereto and set forth therein, in each case, that is or has been provided by or on behalf of one Party (the “Disclosing Party” with respect to such information) to the other Party (the “Receiving Party” with respect to such information) in connection with this Agreement, whether communicated in writing or orally or by any other method, and (b) the terms of this Agreement. Notwithstanding the foregoing, “Confidential Information” excludes any information that the Receiving Party can show by competent evidence (i) is known by the Receiving Party at the time of its receipt, and not through a prior disclosure by or on behalf of the Disclosing Party, as documented by the Receiving Party’s business records; (ii) is known to the public before its receipt by the Receiving Party from the Disclosing Party, or thereafter becomes generally known to the public through no breach of this Agreement by the Receiving Party; (iii) is subsequently lawfully disclosed to the Receiving Party without obligation of confidentiality by a Third Party who has rightfully obtained such information and who is not under an obligation of confidentiality or other contractual obligation with respect to such information; or (iv) is developed by the Receiving Party independently of Confidential Information received from the Disclosing Party, as documented by the Receiving Party’s business records. Notwithstanding the foregoing, (x) the existence and terms of this Agreement will be deemed the Confidential Information of both Parties, and each Party will be deemed a Receiving Party with respect thereto and (y) all Freenome Know-How and Development Results will be deemed the Confidential Information of both Parties (subject to clauses (ii) and (iii), but not clauses (i) and (iv), above), and each Party will be deemed a Receiving Party with respect thereto. For the avoidance of doubt and notwithstanding anything herein to the contrary, information relating to an MCED Product will be the sole Confidential Information of Freenome; provided, however, that to the extent that there is overlap between information relating to an MCED Product and information in the Freenome Know-How, such information shall continue to be Confidential Information of both Parties, but only insofar as it relates to one or more Collaboration Products. |
| 1.42. | “Contracted Coverage Attainment” means [***]. |
| 1.43. | “Control” means the possession by a Party (whether by ownership, license or otherwise), other than pursuant to this Agreement, of (a) with respect to any materials, the legal authority or right to physical possession of such materials, with the right to provide such materials to the other Party on the terms set forth herein, (b) with respect to Patent Rights, PMA Approvals, Regulatory Submissions, Know-How or other intellectual property, the legal authority or right to grant a license, sublicense, access or right to use (as applicable) to the other Party under such Patent Rights, PMA Approvals, Regulatory Submissions, Know-How or other intellectual property on the terms set forth herein, or (c) with respect to a product or component thereof, the legal authority or right to grant a license, sublicense, access or right to use (as applicable) to the other Party under Patent Rights that Cover, or proprietary Know-How that is incorporated in or embodies, such product or component on the terms set forth herein, in each case ((a), (b), and (c)), (i) without breaching or otherwise violating the terms of any arrangement or agreement with a Third Party in existence as of the referenced time (or if not such time is referenced, as of the time such Party or its Affiliates would first be required hereunder to grant the other Party such access, right to use, license or sublicense) or (ii) with respect to materials, Know-How or Patent Rights developed, acquired or licensed by a Party after the Effective Date, without incurring any additional payment obligations to a Third Party that are not subject to an agreed allocation between the Parties, including pursuant to Section 7.7 (In-Licenses). In the event of a Change of Control of a Party, then any materials, Patent Rights, Know-How, PMA Approvals, Regulatory Submissions, other intellectual property, or other assets owned or controlled by the Third Party acquiror or any of its Affiliates existing immediately prior to the consummation such Change of Control, shall be deemed not to be Controlled by such Party, unless any such materials, Patent Rights, Know-How, PMA Approvals, Regulatory Submissions, other intellectual property, or other assets (x) were, immediately prior to the consummation of such Change of Control, included in the licenses and rights granted by such Party hereunder as a result of being licensed to such Party by such Third Party acquiror, or (y) are used by such Party, its Affiliates or its licensees in connection with the activities under this Agreement after the consummation of such Change of Control. |
| 1.44. | “Cover,” “Covering,” or “Covered” means, when used to refer to the relationship between a particular claim in a particular Patent Right and particular subject matter, that the manufacture, use, sale, offer for sale or importation of such subject matter would fall within the scope of one or more claims in, or is otherwise claimed by, such Patent Right. |
| 1.45. | “CRC Blood Product” has the meaning set forth in Section 1.46 (CRC Product). |
| 1.46. | “CRC Product” means any in vitro, blood-based product or service for the diagnosis, screening or evaluation of colorectal cancer or colorectal pre-cancer (e.g., advanced adenoma) (including any Laboratory Developed Test) (“CRC Blood Product”) that is Controlled by or on behalf of or that is Developed by or on behalf of, in whole or in part, Freenome or any of its Affiliates as of the Effective Date or at any time during the Term, including [***]. |
| 1.47. | “Cure Period” has the meaning set forth in Section 13.6.3 (Process for Termination). |
| 1.48. | “Data Breach” has the meaning set forth in Section 11.4 (Compliance with Data Security and Privacy Laws). |
| 1.49. | “Data Protection Laws” means any laws, regulations and orders of any jurisdiction relating to the privacy, security, confidentiality or integrity of Personal Data, including to the extent applicable, the Health Insurance Portability and Accountability Act of 1996 as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations governing the privacy and security of health information promulgated thereunder (“HIPAA”), and comparable state privacy and security laws and regulations. |
| 1.50. | “De-identified” means the process by which (a) health information no longer identifies an individual and with respect to which there is no reasonable basis to believe that the information can be used to identify or re-identify an individual, as set forth in 45 C.F.R. § 164.514 of HIPAA, and (b) personal information that is subject to the requirements of any comparable state privacy and security law is deidentified as defined in such law. |
| 1.51. | “Develop” and “Development” means all internal and external research, discovery, development and regulatory activities related to diagnostic or screening products (including, as applicable, Collaboration Products or MCED Products), including (a) research, non-clinical testing or assays, clinical testing and studies, non-clinical and preclinical activities and Clinical Trials, and (b) preparation, submission, review, analysis and development of data or information for the purpose of submission to a Regulatory Authority to obtain authorization to conduct Clinical Trials and to obtain, support or maintain PMA Approval and interacting with Regulatory Authorities following receipt of PMA Approval in the Territory regarding the foregoing, but expressly excluding activities directed to Manufacturing or Commercialization. Development will include Clinical Trials initiated following receipt of PMA Approval or any Clinical Trial to be conducted after receipt of PMA Approval that are required by the applicable Regulatory Authority to support or maintain such PMA Approval (such as post-marketing requirements, post-marketing commitments, and other observational studies, implementation and management of registries and analysis thereof, in each case, if required by any Regulatory Authority in any region in the Territory to support or maintain PMA Approval for a diagnostic or screening product (including, as applicable, Collaboration Products or MCED Products) in such region). “Developing” and “Developed” will be construed accordingly. |
| 1.52. | “Development Budget” has the meaning set forth in Section 1.58 (Development Plan). |
| 1.53. | “Development Commitment Amount” has the meaning set forth in Section 8.5 (Development Cost Commitment). |
| 1.54. | “Development Costs” means (a) FTE Costs incurred by a Party or its Affiliates in connection with such Party’s performance of Development activities allocated to such Party under the Development Plan, (b) all Out-of-Pocket Costs incurred [***] by a Party or its Affiliates in connection with such Party’s performance of Development activities allocated to such Party under the Development Plan and (c) [***]. |
| 1.55. | “Development Data” means written reports of pre-clinical studies, Clinical Trials or required post-PMA Approval studies involving, or otherwise containing non-clinical, clinical or other data relating to and generated through the Development of, Collaboration Products in the Field in the Territory, and supporting documentation (e.g., protocols, underlying data, format of case report forms, analysis plans) for such reports. [***] |
| 1.56. | “Development Milestone Event” has the meaning set forth in Section 8.2.1 (Development Milestone Payments; General). |
| 1.57. | “Development Milestone Payment” has the meaning set forth in Section 8.2.1 (Development Milestone Payments; General). |
| 1.58. | “Development Plan” means the written plan attached hereto as Exhibit A (Initial Development Plan), as such plan may be amended by the JSC from time to time in accordance with this Agreement, and including at all times: (a) the respective Development activities to be conducted by each of the Parties, (b) the timeline for the conduct of such Development activities, [***] and a budget for the respective Development Costs (the “Development Budget”), (d) the standards and other specifications for a Collaboration Product to be Developed thereunder, and (e) the Clinical Trials to be performed by one or more of the Parties thereunder and the plans and timelines for seeking PMA Approvals. |
| 1.59. | “Development Report” has the meaning set forth in Section 3.4 (Development Reports). |
| 1.60. | “Development Results” has the meaning set forth in Section 3.4 (Development Reports). |
| 1.61. | “Disclosing Party” has the meaning set forth in Section 1.41 (Confidential Information). |
| 1.62. | “Disclosure Letter” has the meaning set forth in Section 11.2 (Representations and Warranties by Freenome). |
| 1.63. | “Dispute” has the meaning set forth in Section 15.3.1 (Exclusive Dispute Resolution Mechanism). |
| 1.64. | “Dollar” or “$” means the legal tender of the United States. |
| 1.65. | “Effective Date” has the meaning set forth in the preamble, provided, however, that if any Antitrust Law prohibits any provision of this Agreement from coming into effect as of the Effective Date, such provision will instead be deemed to be effective as of the Antitrust Clearance Date. |
| 1.66. | “Eligibility Restriction” has the meaning set forth in Section 5.6 (Eligibility Restriction for MCED Products; Reporting). |
| 1.67. | “Eligibility Restriction Report” has the meaning set forth in Section 5.6 (Eligibility Restriction for MCED Products; Reporting). |
| 1.68. | “Exact” has the meaning set forth in the preamble. |
| 1.69. | “Exact Collaboration Know-How” means any Know-How, other than Joint Collaboration Know-How, conceived, developed or reduced to practice during the Term by or on behalf of Exact or its Affiliates in the performance of any activities under this Agreement during the Term. |
| 1.70. | “Exact Collaboration Patent Right” means any Patent Right that claims or discloses any Exact Collaboration Know-How. |
| 1.71. | “Exact Collaboration Technology” means the Exact Collaboration Know-How and Exact Collaboration Patent Rights. |
| 1.72. | “Exact Indemnitee” has the meaning set forth in Section 12.1 (Indemnification by Freenome). |
| 1.73. | “Exact Patient Data” means, as of any given time, De-identified, patient-level sequencing data Controlled by Exact or its Affiliates as of such time and Processed by or on behalf of Exact or its Affiliates in connection with the Commercialization of Collaboration Products in the Field in the Territory. |
| 1.74. | “Exact Prosecuted Patent Right” has the meaning set forth in Section 9.2.1(a) (Prosecution and Maintenance of Patent Rights; Exact’s Right). |
| 1.75. | “Exact-Funded Technology” means any Collaboration Know-How conceived, developed or reduced to practice by or on behalf of Freenome or its Affiliates and which underlying Development work was reimbursed by Exact pursuant to Section 3.3 (Development Costs), and any Patent Right that claims or discloses such Collaboration Know-How. |
| 1.76. | “Exclusive License Effective Date” means the later of (a) the date of achievement of First-Line FDA Approval for the first Collaboration Product and (b) the Antitrust Clearance Date. |
| 1.77. | “Executive Officer” means (a) with respect to Freenome, its Chief Executive Officer (or an executive officer designated by the Chief Executive Officer of Freenome who has the power and authority to resolve the applicable matter) and (b) with respect to Exact, its Chief Executive Officer (or an executive officer designated by the Chief Executive Officer of Exact who has the power and authority to resolve the applicable matter). |
| 1.78. | “Existing CDA” means that certain Mutual Non-Disclosure Agreement, dated [***], by and between Exact and Freenome. |
| 1.79. | “Existing CRC Product” has the meaning set forth in Section 1.46 (CRC Product). |
| 1.80. | “Existing Upstream Agreement” has the meaning set forth in Section 1.189 (Upstream Agreement). |
| 1.81. | “Exploit” or “Exploitation” means to make, have made, import, have imported, export, have exported, distribute, have distributed, use, have used, sell, have sold, offer for sale, have offered for sale, reproduce, have reproduced, perform, have performed, display, have displayed and make derivatives of, including to Develop, Manufacture and Commercialize. |
| 1.82. | “FD&C Act” means the United States Federal Food, Drug, and Cosmetic Act, as amended (21 U.S.C. § 301 et seq). |
| 1.83. | “FDA” means the United States Food and Drug Administration or any successor Governmental Authority having substantially the same function. |
| 1.84. | “FDA Laws” means all laws, rules and regulations applicable to the conduct of any Development, Manufacturing, or Commercialization activities under this Agreement, including without limitation (a) the FD&C Act, together with any rules, regulations, and requirements promulgated thereunder; and (b) GLP, GCP, GMP and any other laws, rules, regulations, requirements or guidance of Regulatory Authorities relating to any of the foregoing, as applicable and amended from time to time. |
| 1.85. | “FDA No Authority Determination” means the enactment of a U.S. federal statute, issuance of a U.S. federal rule or regulation, or issuance of a final, non-appealable decision of a United States federal court of competent jurisdiction in each case of the foregoing expressly finding that the FDA does not have the legal authority to regulate Collaboration Products. |
| 1.86. | “Field” means all uses and purposes, excluding the diagnosis, screening or evaluation of measurable residual disease. |
| 1.87. | “First Commercial Sale” means, on a Collaboration Product-by-Collaboration Product or MCED Product-by-MCED Product basis, as applicable, in the Field in the Territory, the first commercial sale of such Collaboration Product or MCED Product, as applicable, by a Party or any of its Affiliates or Sublicensees, as applicable, to a Third Party for end use consumption in the Field in the Territory. First Commercial Sale excludes transfers of Collaboration Products and MCED Products, as applicable, to Third Parties as bona fide samples, as donations, for Clinical Trial purposes or for any expanded access program, indigent program, or for other charitable or promotional purposes or similar limited purposes. |
| 1.88. | “First-Line FDA Approval” means, with respect to a Collaboration Product, receipt of PMA Approval for colorectal cancer or colorectal pre-cancer (e.g., advanced adenoma) in the Field in the Territory that [***]. |
| 1.89. | “First-Line FDA Approval [***]” means, with respect to a Collaboration Product, a First-Line FDA Approval for such Collaboration Product that [***]. |
| 1.90. | “Force Majeure” has the meaning set forth in Section 15.12 (Force Majeure). |
| 1.91. | “Freenome” has the meaning set forth in the preamble. |
| 1.92. | “Freenome Excluded Product” means [***]. |
| 1.93. | “Freenome Indemnitee” has the meaning set forth in Section 12.2 (Indemnification by Exact). |
| 1.94. | “Freenome Know-How” means any Know-How, other than Joint Collaboration Know-How, Controlled by Freenome or any of its Affiliates as of the Effective Date or during the Term that is necessary or reasonably useful to Develop, Manufacture, Commercialize or otherwise Exploit the Collaboration Products in the Field in the Territory. |
| 1.95. | “Freenome Patent Right” means any Patent Right in the Territory, other than a Joint Collaboration Patent Right, Controlled by Freenome or any of its Affiliates as of the Effective Date or during the Term that is necessary or reasonably useful to Develop, Manufacture, Commercialize and otherwise Exploit the Collaboration Products in the Field in the Territory. The Freenome Patent Rights existing as of the Effective Date are set forth on Schedule 1.95 (Existing Freenome Patent Rights). |
| 1.96. | “Freenome Patient Data” means, as of any given time, De-identified patient-level sequencing data Controlled by Freenome or its Affiliates as of such time and Processed by or on behalf of Freenome or its Affiliates in connection with the Commercialization of the Collaboration Products in the Field in the Territory. |
| 1.97. | “Freenome Prosecuted Patent Right” has the meaning set forth in Section 9.2.2(a) (Freenome Prosecuted Patent Rights; Freenome’s Right). |
| 1.98. | “Freenome Technology” means (a) Freenome Patent Rights and (b) Freenome Know-How. |
| 1.99. | “Freenome Trademark” means any Trademark Controlled by Freenome or any of its Affiliates as of the Effective Date or during the Term that is necessary or reasonably useful for the Commercialization of Collaboration Products in the Field in the Territory in accordance with the applicable labeling approved by the FDA for such Collaboration Product and a branding plan mutually agreed by the Parties. The Freenome Trademarks existing as of the Effective Date (based on the branding plan contemplated by the Parties as of the Effective Date) are set forth on Schedule 1.99 (Existing Freenome Trademarks). |
| 1.100. | “FTE” means the equivalent of a full-time person’s work time, carried out by an appropriately qualified employee of a Party or its Affiliates, on the performance of Development, Manufacturing, or Commercialization (including technology transfer and assistance), based on eighteen hundred (1,800) person-hours per year, pro-rated as necessary. Overtime, and work on weekends, holidays, and the like will not be counted with any multiplier (e.g., time-and-a-half or double time) toward the number of hours that are used to calculate the contribution, and a single employee may not be charged as more than one FTE (or its pro rata equivalent) over any given period. Indirect personnel (including support functions such as managerial, financial, legal, or business development) will not constitute FTEs. |
| 1.101. | “FTE Costs” means, for any period, the FTE Rate multiplied by the number of FTEs in such period. |
| 1.102. | “FTE Rate” means [***]. |
| 1.103. | “GCP” means the then-current good clinical practice standards, practices and procedures concerning the design, conduct, performance, monitoring, auditing, recording, analyses, and reporting of Clinical Trials promulgated or endorsed by the FDA of competent jurisdiction, including regulatory requirements imposed by FDA in 21 C.F.R. Parts 11, 50, 54, 56, and 812 and all related FDA rules, regulations, orders and guidance. |
| 1.104. | “GLP” means the then-current good laboratory practice standards, practices and procedures promulgated or endorsed by the FDA, as may be updated from time-to-time, including those as set forth in FDA regulations in 21 C.F.R. Part 58 and all applicable FDA rules, regulations, orders and guidance. |
| 1.105. | “GMP” means the then-current good manufacturing practice standards, practices and procedures concerning the Manufacture of medical devices and diagnostic products promulgated or endorsed by the FDA as may be updated from time-to-time, including those as set forth in FDA’s quality system regulation (as currently in effect) or quality management system regulation (when and to the extent it becomes effective) in 21 C.F.R. Part 820, ISO 13485:2016 (Medical devices—Quality management systems—Requirements for regulatory purposes) (when and to the extent it becomes effective) and all applicable FDA rules, regulations, orders and guidance. |
| 1.106. | “Governmental Authority” means any applicable government authority, court, council, tribunal, arbitrator, agency, department, bureau, branch, office, legislative body, commission, or other instrumentality, including a Medicare Administrative Contractor, of (a) any government of any country or territory, (b) any nation, state, province, county, city or other political subdivision thereof, or (c) any supranational body. |
| 1.107. | “Gross Margin” means [***]. |
| 1.108. | “HIPAA” has the meaning set forth in Section 1.49 (Data Protection Laws). |
| 1.109. | “HSR Act” has the meaning set forth in Section 14.2 (HSR Filings). |
| 1.110. | “HSR Conditions” has the meaning set forth in Section 14.1 (Antitrust Clearance Date). |
| 1.111. | “Indemnified Party” has the meaning set forth in Section 12.3.1 (Notice). |
| 1.112. | “Indemnifying Party” has the meaning set forth in Section 12.3.1 (Notice). |
| 1.113. | “In-Network” means [***]. |
| 1.114. | “Insured Lives” means [***]. |
| 1.115. | “Joint Collaboration Know-How” means any Collaboration Know-How conceived, developed or reduced to practice during the Term jointly by or on behalf of both Parties or their respective Affiliates. |
| 1.116. | “Joint Collaboration Patent Right” means any Collaboration Patent Right Covering any Joint Collaboration Know-How. |
| 1.117. | “Joint Collaboration Technology” means the Joint Collaboration Know-How and Joint Collaboration Patent Rights. |
| 1.118. | “JSC” has the meaning set forth in Section 2.2.1 (Formation and Purpose of the JSC). |
| 1.119. | “Know-How” means all proprietary commercial, technical, scientific and other know-how and information, inventions, discoveries, trade secrets, knowledge, technology, methods, processes, practices, formulae, sequences, instructions, skills, techniques, procedures, experiences, ideas, technical assistance, designs, drawings, assembly procedures, computer programs, algorithms, cut-offs, technology, materials, specifications, and data and results (including biological, chemical, diagnostic, toxicological, physical and analytical, preclinical, clinical, safety, manufacturing and quality control data and know-how, including regulatory data, study designs and protocols), in all cases, whether or not confidential, proprietary, patentable, in written, electronic or any other form now known or hereafter developed, but expressly excluding all Patent Rights. |
| 1.120. | “Knowledge” means, with respect to a Party, the actual knowledge of those persons listed for such Party on Schedule 1.120 (Knowledge) after due inquiry. |
| 1.121. | “Laboratory Developed Test” or “LDT” means a diagnostic test service that is intended for clinical use and that is designed, validated, and performed by trained professionals within a single laboratory that is certified under CLIA and meets the regulatory requirements under CLIA to perform high complexity testing. An LDT does not include an in vitro diagnostic product that has PMA Approval. |
| 1.122. | “Laboratory Technology Transfer Completion” has the meaning set forth in Section 7.6.2 (Laboratory Technology Transfer). |
| 1.123. | “Laboratory Technology Transfer Plan” has the meaning set forth in Section 7.6.2 (Laboratory Technology Transfer). |
| 1.124. | [***] |
| 1.125. | “Laboratory Transition Date” has the meaning set forth in Section 5.2 (Performance of Laboratory Tests). |
| 1.126. | “Losses” has the meaning set forth in Section 12.1 (Indemnification by Freenome). |
| 1.127. | “Manufacturing” or “Manufacture” means activities directed to process, manufacturing, processing, packaging, labeling, assembly, quality assurance, quality control, testing, release, shipping or storage of any diagnostic or screening product (including, as applicable, Collaboration Products or MCED Products) (or any components or process steps involving any such product), including process development, qualification, and validation, scale-up, pre-clinical, clinical, and commercial manufacture and product characterization, but expressly excluding activities directed to Development or Commercialization. “Manufacturing” and “Manufactured” will be construed accordingly. |
| 1.128. | “MCED Product” means a collection or group of products marketed and sold together (whether at a single price or multiple prices in each case in accordance with Applicable Law) that solely contains, and solely to the extent containing, both (a) a CRC Product and (b) an in vitro, blood-based product or service (including any Laboratory Developed Test) Developed or acquired by Freenome or its Affiliates for the diagnosis, screening or evaluation of one or more cancers other than colorectal cancer or colorectal pre-cancer (e.g., advanced adenoma) (such component in sub-clause (b), an “Other Component”). For the avoidance of doubt, an MCED Product is not a Collaboration Product. |
| 1.129. | “MCED Product Notice” has the meaning set forth in Section 5.6 (Eligibility Restriction for MCED Products; Reporting). |
| 1.130. | “National Coverage Determination” means [***]. |
| 1.131. | “Negotiation Period” has the meaning set forth in Section 7.8 (Right of First Negotiation). |
| 1.132. | “Net Sales” means [***]. |
| 1.133. | “New License Agreement” has the meaning set forth in Section 13.7.2 (Sublicensees). |
| 1.134. | “Non-Breaching Party” has the meaning set forth in Section 13.6.3 (Process for Termination). |
| 1.135. | “Other Component” has the meaning set forth in Section 1.128 (MCED Product). |
| 1.136. | “Out-of-Pocket Costs” means, with respect to certain activities for a Collaboration Product hereunder, specifically identifiable, reasonable, documented expenses paid or payable by a Party or its Affiliates to Third Parties to conduct such activities, including payments to contract personnel (including Subcontractors). |
| 1.137. | “Outside Date” has the meaning set forth in Section 14.4 (Outside Date). |
| 1.138. | “Party” or “Parties” has the meaning set forth in the preamble. |
| 1.139. | “Patent Challenge” means [***]. |
| 1.140. | “Patent Right” means any patent (including any utility or design patent) or patent application (including any provisional, utility, continued prosecution, continuation, continuations-in-part, divisional or substitution application), or other filing claiming priority thereto or sharing any common priority therewith, whether directly or indirectly, as well as any patent that issues or has issued with respect to any such patent application, reissue, re-examination, renewal or extension (including any patent term adjustment, patent term extension, or supplemental protection certificate, or the equivalent thereof), registration or confirmation patent, patent resulting from a post-grant proceeding, patent of addition, revalidation, restoration or extension thereof, or any inventor’s certificate, utility model (including any petty patent, innovation patent, utility certificate, functional design, short-term patent, minor patent or small patent), or any equivalent or counterpart thereof in any country or jurisdiction. |
| 1.141. | “Patient Data” means, as applicable, Freenome Patient Data or Exact Patient Data. |
| 1.142. | “Payment” has the meaning set forth in Section 8.9 (Taxes). |
| 1.143. | “Person” means any natural person, corporation, unincorporated organization, partnership, association, sole proprietorship, joint stock company, joint venture, limited liability company, trust or government, Governmental Authority or any other similar entity. |
| 1.144. | “Personal Data” means any information that identifies, relates to or describes an identified or identifiable natural person who can be identified directly or indirectly, and includes but is not limited to first and last name, age, date of birth, gender, address, contact information, government-issued identifiers (such as passport and social security numbers), an identification number (e.g., a medical insurance number or a study code assigned in a registry or other research study involving human subjects), location data, an online identifier or any specific physical, health related, physiological, genetic, mental, economic, cultural or social information about that natural person. For the avoidance of doubt, biological samples and pseudonymized (coded) study subject data which can be attributed to a person will constitute Personal Data even if the holder of such data does not have access to the key that links the data to the identity of an individual. |
| 1.145. | “Plan” [***]. |
| 1.146. | “PMA” means any premarket approval application for a class III medical device, including all information submitted with or incorporated by reference therein, submitted to FDA under 21 U.S.C. § 360e and 21 C.F.R. Part 814. |
| 1.147. | “PMA Approval” means receipt of written correspondence from the FDA issuing an approval order of the PMA for a product for the diagnosis, screening or evaluation of colorectal cancer in humans. |
| 1.148. | “PMA Responsible Party” means on a Collaboration Product-by-Collaboration Product basis, the owner of the PMA for such Collaboration Product in the Territory and the Party who is responsible for making all Regulatory Submissions with respect to such PMA, obtaining and maintaining PMA Approval and interacting with FDA and other Regulatory Authorities with respect to such Collaboration Product in the Territory. |
| 1.149. | “Privacy and Security Obligations” has the meaning set forth in Section 11.2.23 (Data Privacy). |
| 1.150. | “Process,” “Processed” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. |
| 1.151. | “Prosecution and Maintenance” or “Prosecute and Maintain” means, with regard to a particular Patent Right, the preparation, filing, and prosecution (including any interferences, reissue proceedings, reexaminations, supplemental examinations, derivation proceedings, or any other similar proceeding before a patent authority of competent jurisdiction), and maintenance (including paying maintenance fees and annuities) of such Patent Right. |
| 1.152. | “Public Listing” means (a) the closing of the issuance and sale of capital stock of Freenome in Freenome’s underwritten initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended or (b) any other transaction (i) that is not a Change of Control and (ii) as a result of which a class of shares of Freenome or any successor entity is registered under the Securities Exchange Act of 1934, as amended, including a SPAC Transaction. |
| 1.153. | “Quality Agreement” has the meaning set forth in Section 4.6.5 (Quality Agreement). |
| 1.154. | “Quality Audit” has the meaning set forth in Section 4.5 (Quality Audits by Exact). |
| 1.155. | “Recall” has the meaning set forth in Section 4.6.4 (Recalls). |
| 1.156. | “Receiving Party” has the meaning set forth in Section 1.41 (Confidential Information). |
| 1.157. | “Redacted Agreement” has the meaning set forth in Section 10.1.3(b) (Confidential Treatment). |
| 1.158. | “Regulatory Authority” means any Governmental Authority responsible for (a) granting PMA Approvals of diagnostic or screening products (including, as applicable, Collaboration Products or MCED Products), including FDA, or (b) determining coverage under a Plan offered by a governmental insurer. |
| 1.159. | “Regulatory Submission” means any regulatory application, submission, meeting request, notification, communication, correspondence, registration, PMA Approval or other filing made to, received from or otherwise conducted with a Regulatory Authority related to Developing, Manufacturing or obtaining pre-market approval for a diagnostic or screening product (including, as applicable, Collaboration Products or MCED Products) in the Territory. |
| 1.160. | “Required Filings” has the meaning set forth in Section 14.2 (HSR Filings). |
| 1.161. | “Right of Reference” means a right of reference or a similar grant or authorization to a Party that allows the FDA to have access to, rely on, and use relevant information (by cross-reference, incorporation by reference or otherwise) contained in Regulatory Submissions and PMAs of the other Party. |
| 1.162. | “ROFN Exercise Period” has the meaning set forth in Section 7.8 (Right of First Negotiation). |
| 1.163. | “ROFN Notice of Exercise” has the meaning set forth in Section 7.8 (Right of First Negotiation). |
| 1.164. | “Royalties” has the meaning set forth in Section 8.4.1 (Royalties). |
| 1.165. | “Royalty-Bearing Patent” means [***]. |
| 1.166. | “Royalty Term” means [***]. |
| 1.167. | “SEC” has the meaning set forth in Section 10.1.3(b) (Confidential Treatment). |
| 1.168. | “Second-Line USPSTF Milestone Event” has the meaning set forth in Section 8.2.3 (Second-Line USPSTF Milestone Payment). |
| 1.169. | “Second-Line USPSTF Milestone Payment” has the meaning set forth in Section 8.2.3 (Second-Line USPSTF Milestone Payment). |
| 1.170. | “Sensitivity” means the true positive rate (i.e., the proportion of subjects with an actual positive outcome who are correctly given a positive assignment). |
| 1.171. | [***] |
| 1.172. | [***] |
| 1.173. | “SPAC” has the meaning set forth in Section 1.174 (SPAC Transaction). |
| 1.174. | “SPAC Transaction” means a transaction or a series of related transactions by merger, consolidation, share exchange or otherwise of Freenome with a publicly traded “special purpose acquisition company” or its subsidiary (collectively, a “SPAC”), immediately following the consummation of which the common stock or share capital of the SPAC or its successor entity is listed on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace. |
| 1.175. | “Specificity” means the true negative rate (i.e., the proportion of subjects with an actual negative outcome who are correctly given a negative assignment). |
| 1.176. | “Subcommittee” has the meaning set forth in Section 2.3 (Other Committees). |
| 1.177. | “Subcontractor” means a Third Party contractor or service provider, in each case engaged by a Party or its Affiliate to perform certain obligations or exercise certain rights of such Party under this Agreement (including all contract research organizations, contract development organizations, contract manufacturing organizations and contract sales forces). |
| 1.178. | “Sublicensee” means a Third Party to which a Party or its Affiliate has granted or grants a sublicense, option to sublicense or similar right under intellectual property Controlled by the other Party to Develop, Manufacture, Commercialize or otherwise Exploit any Collaboration Product or MCED Product (as applicable), or any further sublicensee of such rights (regardless of the number of tiers, layers or levels of sublicenses of such rights), beyond the mere right to purchase any Collaboration Product or MCED Product (as applicable) from or to provide services on behalf of such Party or its Affiliates, but expressly excluding Subcontractors. |
| 1.179. | “Sunset Date” means [***]. |
| 1.180. | “Target Population” means [***]. |
| 1.181. | “Tax” means any U.S. and non U.S. federal, state, local, regional, municipal, or other tax or taxation, levy, duty, charge, withholding, or other assessment of any kind (including any related fine, penalty, addition to tax, surcharge or interest) imposed by, or payable to, a Governmental Authority, including sales, use, excise, stamp, transfer, property, value added, goods and services, withholding, and franchise taxes. |
| 1.182. | “Term” has the meaning set forth in Section 13.1 (Term). |
| 1.183. | “Terminated Product” means (a) any Collaboration Product with respect to which this Agreement is terminated pursuant to Article 13 (Term and Termination), and (b) in the event of termination of this Agreement in its entirety, all Collaboration Products. |
| 1.184. | “Territory” means the United States. |
| 1.185. | “Third Party” means any Person other than Freenome, Exact or their respective Affiliates. |
| 1.186. | “Trademark” means any trademark, trade name, service mark, service name, brand, domain name, trade dress, logo, slogan or other indicia of origin or ownership, including the goodwill and activities associated with each of the foregoing. |
| 1.187. | “United States” or “U.S.” means the United States and its territories, possessions and commonwealths. |
| 1.188. | “Upfront Payment” has the meaning set forth in Section 8.1 (Upfront Consideration). |
| 1.189. | “Upstream Agreement” means any agreement with a Third Party pursuant to which Freenome or one of its Affiliates has acquired any right to any Freenome Technology. The Upstream Agreements existing as of the Effective Date are set forth on Schedule 1.189 (Upstream Agreements) (each, an “Existing Upstream Agreement”). |
| 1.190. | “USPSTF” means the United States Preventive Services Taskforce or any successor organization thereto. |
| 1.191. | “USPTO” means the United States Patent and Trademark Office or any successor Governmental Authority having substantially the same function. |
| 1.192. | “V1 Collaboration Product Standards” means the standards and other specifications set forth in Schedule 1.192 (V1 Collaboration Product Standards), as may be amended by the JSC in accordance with the terms and conditions of this Agreement. |
| 1.193. | “V1 Equivalent National Coverage Determination” means a National Coverage Determination by CMS for a blood-based biomarker screening test for colorectal cancer for the Target Population which [***]. |
| 1.194. | “V2 Collaboration Product Standards” means the standards and other specifications set forth in Schedule 1.194 (V2 Collaboration Product Standards), as may be amended by the JSC in accordance with the terms and conditions of this Agreement. |
| 1.195. | “V2 Equivalent National Coverage Determination” means a National Coverage Determination by CMS for a blood-based biomarker screening test for colorectal cancer for the Target Population which [***]. |
| 1.196. | “V3 Collaboration Product Standards” means the standards and other specifications approved by the JSC for any subsequent Collaboration Product, as may be amended by the JSC in accordance with the terms and conditions of this Agreement. |
| 1.197. | “Valid Claim” means: (a) a claim of an issued and unexpired patent (as may be extended through supplementary protection certificate or patent term extension or the like) that has not been revoked, held invalid or unenforceable by a Governmental Authority of competent jurisdiction and which claim has not been disclaimed, denied, or admitted to be invalid or unenforceable through reissue, re-examination, or disclaimer or otherwise; or (b) a pending claim of an unissued, pending patent application, which application has been pending for [***] years or less since the earliest date to which it is entitled to claim priority. |
| 1.198. | “Weighted Price” means [***]. |
| 1.199. | “Wire Instructions” has the meaning set forth in Section 8.1 (Upfront Consideration). |
| 2.2. | Joint Steering Committee. |
| 2.2.1. | Formation and Purpose of the JSC. Within [***] days after the Effective Date, the Parties will establish a joint steering committee (the “JSC”) that will have the responsibilities set forth in this Section 2.2 (Joint Steering Committee) and will coordinate and oversee or monitor the Parties’ Development and Commercialization of Collaboration Products in the Field in the Territory, resolve matters referred from any Subcommittee established pursuant to Section 2.3 (Other Subcommittees), and facilitate communication between the Parties, all in accordance with the terms of this Agreement, provided, for clarity, that prior to the Antitrust Clearance Date the JSC will conduct planning activities in preparation for Development activities that would occur on and after the Antitrust Clearance Date as described in Section 3.1 (Development Plan). The JSC will dissolve upon both the completion of all activities set forth in the Development Plan and the achievement of all Development Milestone Events. For the avoidance of doubt, any activities of the JSC or any Subcommittee hereunder shall be subject to, and conducted in compliance with, Applicable Laws (including Antitrust Laws). |
| 2.2.2. | Composition. Each Party will initially appoint three (3) representatives to the JSC, with each representative having knowledge and expertise in the Development of assets similar to the Collaboration Products, and having sufficient seniority within the applicable Party to provide meaningful input and make decisions arising within the scope of the JSC’s responsibilities. The JSC may change its size from time to time by agreement of the Parties, provided that, unless otherwise agreed by the Parties in writing, the JSC will consist at all times of an equal number of representatives of each Party. Each Party may replace its JSC representatives at any time upon written notice to the other Party, provided that each such replacement has knowledge and expertise in the Development of assets similar to the Collaboration Products, and has sufficient seniority within the applicable Party to provide meaningful input and make decisions arising within the scope of the JSC’s responsibilities. Each Party will designate one (1) of its JSC members as a co-chairperson of the JSC. The JSC may invite non-members to participate in the discussions and meetings of the JSC, but such participants will have no voting authority at the JSC and must be bound under written obligations of confidentiality no less protective of the Parties’ Confidential Information than those set forth in this Agreement. The Alliance Managers will prepare and circulate agendas and ensure the preparation and approval of minutes. |
| 2.2.3. | JSC Meetings. The JSC will meet at least quarterly unless the Parties mutually agree in writing to a different frequency. No later than [***] Business Days prior to any meeting of the JSC (or such shorter time period as the Parties may agree), the Alliance Managers will prepare and circulate an agenda for such meeting; provided, however, that either Party may propose additional topics to be included on such agenda, either prior to or in the course of such meeting. Either Party may also call a special meeting of the JSC (by videoconference, teleconference or in person if the Parties agree) by providing at least [***] Business Days’ prior written notice to the other Party if such Party reasonably believes that a significant matter must be addressed prior to the next scheduled meeting, in which event such Party will work with the Alliance Managers to provide the members of the JSC, no later than [***] Business Days prior to the special meeting, with an agenda for the meeting and materials reasonably adequate to enable an informed decision on the matters to be considered. The JSC may meet in person, by videoconference or by teleconference. In-person JSC meetings will be held at locations selected by agreement of the JSC members. Each Party will bear the expense of its respective JSC members’ participation in JSC meetings. Meetings of the JSC will be effective only if at least one (1) representative of each Party (which representative is not such Party’s Alliance Manager) is present or participating in such meeting. The Alliance Managers will be responsible for preparing reasonably detailed written minutes of all JSC meetings that reflect material decisions made and action items identified at such meetings. The Alliance Managers will send draft meeting minutes to each member of the JSC for review and approval within [***] days after each JSC meeting. |
| 2.2.4. | Decisions of the JSC. The JSC has the authority (a) for matters specifically delegated to it or expressly specified in this Agreement and (b) with respect to any other matter agreed to by the Parties in writing. All decisions of the JSC will be made by consensus vote, with each Party’s representatives having one (1) vote (i.e., one (1) vote per Party). No action taken at any meeting of the JSC will be effective unless there is a quorum at such meeting, and at all such meetings, a quorum will be reached if one (1) voting representative of each Party is present or participating in such meeting. The JSC will not have any power to amend, modify or waive compliance with this Agreement. The JSC has no other authority under this Agreement other than what is expressly granted under this Agreement. The JSC will work in good faith to promptly resolve any such matter for which it has authority. If the JSC is unable to reach consensus with respect to any such matter for which it is responsible within [***] days after a Party affirmatively states to the other Party that a decision needs to be made, then such matter will be subject to Section 2.4 (Resolution of Subcommittee Disputes). |
| 2.2.5. | Responsibilities of JSC. In addition to its overall responsibility for monitoring and providing strategic oversight with respect to the Parties’ activities under this Agreement, the JSC will have the following responsibilities: |
| (a) | oversee the Development of Collaboration Products in the Field in the Territory under this Agreement; |
| (b) | oversee the Development and Commercialization of Collaboration Products that are Laboratory Developed Tests in the Field in the Territory under this Agreement; |
| (c) | review, discuss and approve any amendment to the Development Plan; |
| (d) | oversee and discuss the accrual of Development Costs under this Agreement; |
| (e) | review, discuss and approve the Laboratory Technology Transfer Plan or any amendment to the Laboratory Technology Transfer Plan; |
| (f) | review, discuss and determine whether a Laboratory Technology Transfer Completion has occurred; |
| (g) | review, discuss and approve the V3 Collaboration Product Standards or any amendment to the V1 Collaboration Product Standards, V2 Collaboration Product Standards or V3 Collaboration Product Standards; |
| (h) | review, discuss and determine whether a Collaboration Product meets or is within the applicable Confidence Interval of the V1 Collaboration Product Standards, V2 Collaboration Product Standards or V3 Collaboration Product Standards; |
| (i) | review and determine whether Contracted Coverage Attainment has been achieved; |
| (j) | review and discuss any proposed publication by either Party, as described in Section 10.2 (Publication and Publicity); |
| (k) | form such other Subcommittees under the JSC as may be necessary or desirable to facilitate the activities under this Agreement as the Parties may agree and oversee the activities of any such other Subcommittees; |
| (l) | attempt to resolve any disputes on matters within the JSC’s authority on an informal basis and in good faith prior to the institution of escalation or other formal dispute resolution mechanisms hereunder; |
| (m) | attempt to resolve any disputes on matters within any Subcommittee’s authority that are escalated to the JSC on an informal basis and in good faith prior to the institution of escalation or other formal dispute resolution mechanisms hereunder; and |
| (n) | perform such other functions expressly allocated to the JSC in this Agreement or by the written agreement of the Parties. |
| 2.4. | Resolution of Committee Disputes. |
| 2.4.1. | Referral to Executive Officers. Either Party may make an election under Section 2.2.4 (Decisions of the JSC) to refer a matter as to which the JSC cannot reach a consensus decision for resolution by the Executive Officers, following which the JSC will promptly submit in writing the respective positions of the Parties to their respective Executive Officers. Such Executive Officers will use good faith efforts, in compliance with this Section 2.4.1 (Referral to Executive Officers), to resolve promptly such matter within [***] days after the JSC’s submission of such matter to such Executive Officers, which good faith efforts will include at least one (1) in-person or teleconference meeting between such Executive Officers within such [***] day period. |
| 2.4.2. | Final Decision-Making Authority. If the Executive Officers are unable to reach agreement on any such matter referred to them under Section 2.4.1 (Referral to Executive Officers) within the applicable [***] period, then [***]: |
| [***] | [***] |
| [***] | [***] |
| [***] | [***] |
| [***] | [***] |
| [***] | [***] |
| 3.2. | Development Diligence. Freenome will use Commercially Reasonable Efforts to Develop [***]. |
| 3.5. | Data Exchange and Use. [***]. |
| 4.6. | Regulatory Inspections and Inquiries. |
| 4.6.1. | Regulatory Inspections. Freenome and its Affiliates will cooperate in good faith with respect to inspections and audits by the FDA or any other Governmental Authority of any facility or laboratory being used by Freenome or its Affiliates to Develop the Collaboration Product in the Field in the Territory and Manufacture a Collaboration Product for such purposes and to process the Collaboration Product in the Field in the Territory as described in Section 5.2 (Performance of Laboratory Tests). Freenome will promptly, and in any event within no more than [***] Business Day, notify Exact of Freenome’s receipt of notice of, or the initiation of, any inspection or audit by the FDA or any other Governmental Authority that directly involves a Collaboration Product in the Field in the Territory. Freenome will notify Exact (and provide copies of the related documentation to Exact, which may be redacted to the extent it relates to subject matter other than Collaboration Product in the Field in the Territory) within [***] Business Day of Freenome’s receipt of any warning letter, untitled letter, Form FDA-483, or any other allegations of noncompliance from FDA or any other Governmental Authority that identify or otherwise relate to a Collaboration Product in the Field in the Territory. To the extent that any inspection, audit or other action by FDA or any other Governmental Authority directly involves any Collaboration Product in the Field in the Territory, Freenome agrees to reasonably cooperate and confer with Exact prior to Freenome submitting any response to the FDA or such other Governmental Authority; provided, however, that where Freenome is the PMA Responsible Party, Freenome shall have the final right to determine what is ultimately submitted to FDA or such other Governmental Authority. Freenome further agrees to obtain Exact’s consent, which will not be unreasonably withheld or delayed, before Freenome makes any commitment to the FDA or any other Governmental Authority that would affect any Collaboration Product in the Field in the Territory or Exact. |
| 4.6.2. | Other Regulatory Inquiries. To the extent not addressed by Section 4.6.1 (Regulatory Inspections), Freenome will provide copies to Exact of all written communications between Freenome and FDA or any other Governmental Authority that specifically relate to any Collaboration Product in the Field in the Territory. Freenome will provide such communications to Exact within [***] Business Days of receipt or issuance by Freenome. If necessary to protect confidentiality, Freenome may redact information (e.g., names or other identifiers) that does not relate to any Collaboration Product in the Field in the Territory. |
| 4.6.3. | Complaints and Medical Device Reporting. Each Party, at its expense, will be responsible for the prompt review, evaluation, and documentation of all complaints relating to any Collaboration Product for which it is the PMA Responsible Party. Each Party shall promptly forward to the other Party any complaints received concerning the Collaboration Products, including all reports of serious injury, product malfunction or other adverse events. Each Party will cooperate, as appropriate, with the other Party’s investigation of complaints. Each Party will be responsible for complying with the FDA’s medical device reporting (MDR) regulations (21 C.F.R. Part 803) and submitting any necessary reports to the FDA with respect to Collaboration Products for which it is the PMA Responsible Party. |
| 4.6.4. | Recalls. Each Party agrees that if it discovers or becomes aware of any fact, condition, circumstance or event (whether actual or potential) concerning or related to any Collaboration Product which may reasonably lead to a recall, market withdrawal, field correction, safety alert, or removal of any Collaboration Product in the Field in the Territory (each, a “Recall”) or any other material quality issue with respect to any laboratory where any laboratory test is performed for a Collaboration Product in the Field in the Territory, it will promptly communicate such fact, condition, circumstance or event to the other Party within [***] Business Day. In the event: (a) the FDA or any other Governmental Authority requests that any Collaboration Product in the Field in the Territory be subject to a Recall or invokes its authority to order a mandatory recall; (b) a court of competent jurisdiction orders such a Recall; or (c) either Party determines that a Collaboration Product in the Field in the Territory should be subject to a Recall from the market as a result of a safety, quality, accuracy or regulatory compliance concern, the Parties will take all appropriate remedial actions with respect to such Recall of the Collaboration Product. Except as otherwise provided herein, the PMA Responsible Party will be responsible for all medical device reporting, correction and removal reporting and execution of Recalls associated with any Collaboration Product, and the PMA Responsible Party will be the primary point of contact for any communications to the FDA and other Governmental Authorities, the media and customers concerning the Recall. With respect to reasonable and documented out-of-pocket expenses associated with a Recall of a Collaboration Product in the Field in the Territory, including but not limited to, preparing customer lists and letters, mailing expenses, media notices or other public announcements and any other necessary notices, fees for legal and/or regulatory counsel, and destruction, return, repair, and/or replacement of any Collaboration Product in the Field in the Territory subject to a Recall, including the cost of shipping and freight, Freenome will be responsible for such Recall expenses except to the extent that the Recall was necessitated or caused by the manner in which Exact Developed, Manufactured, or Commercialized the affected Collaboration Product, itself or with or through its Affiliates, Sublicensees or Subcontractors. Exact will provide such cooperation as Freenome may reasonably request in connection with any Recall of any Collaboration Product. |
| 4.6.5. | Quality Agreement. No later than [***] calendar days after Exact receives the first PMA Approval of a Collaboration Product for which it is the PMA Responsible Party, Exact and Freenome shall negotiate in good faith and execute a quality agreement setting forth the respective quality-related responsibilities of the Parties once each Party holds a PMA Approval for a Collaboration Product (“Quality Agreement”). In the event of a conflict between any provision of this Agreement and the Quality Agreement with respect to quality-related activities, including compliance with Applicable Laws, the provisions of the Quality Agreement shall govern. In the event of a conflict between any provision of this Agreement and the Quality Agreement with respect to any commercial matter, including allocation of risk, liability and financial responsibility, the provisions of this Agreement shall govern. |
| 5.5.1. | Prior to the Exclusive License Effective Date, Freenome may bill, invoice or accept payment from a Third Party for any laboratory test performed by Freenome with respect to a Collaboration Product in the Field in the Territory being Commercialized by Freenome, provided that Freenome may not enter into negotiations or agreements with or bill any Plan, obtain any billing codes or coverage determinations, or otherwise perform services within the scope of Exact’s responsibilities under Section 5.10 (Coverage), without Exact’s prior written consent. |
| 5.5.2. | In certain jurisdictions and with Third Party payors where Exact is not permitted to bill, invoice or accept payment under Applicable Law or due to payor policies (e.g., due to state direct billing laws, licensure restrictions, or payor network limitations) for any Collaboration Product being processed by Freenome under Section 5.2 (Performance of Laboratory Tests), Freenome will have the right and be responsible for billing, invoicing or accepting payment from the Third Party for the Collaboration Product; provided that (a) such jurisdictions and Third Party payors are identified in Schedule 5.5.2 (Billing of Third Parties), which the Parties will work together in good faith to update from time to time based on changes to Applicable Law; (b) the Parties agree to comply with all Applicable Laws relating to laboratory billing, fee-splitting, and billing agent arrangements; [***]. |
| 5.5.3. | For each such laboratory test processed by Freenome under Section 5.2 (Performance of Laboratory Tests) and billed by Freenome, Freenome will remit to Exact all payments received from the Third Party for the Collaboration Product, less (a) [***] (b) in the event that Exact does not perform administrative billing services on Freenome’s behalf and Freenome provides billing services, the fair market value of such billing services, determined in compliance with Applicable Law. [***]. |
| 5.5.4. | The Parties will use Commercially Reasonable Efforts to coordinate and facilitate the reporting of test results to patients and the submission of claims to applicable Third Parties, [***]. |
| 5.5.5. | [***]. Solely with respect to a CRC Product that is part of an MCED Product, Freenome agrees not to enter into negotiations or agreements with or bill any payor unless (a) such payor is In-Network for a Collaboration Product or (b) Exact provides its prior written consent, not be unreasonably withheld, conditioned, or delayed. For the avoidance of doubt, Freenome shall not be restricted in any way from entering into negotiations or agreements with or billing any payor with respect to an Other Component of an MCED Product. |
| 5.5.6. | For the avoidance of doubt, except as otherwise expressly set forth in this Section 5.5 (Billing of Third Parties), Exact will retain all of its rights and responsibilities regarding the Commercialization of the Collaboration Products in the Field in the Territory. |
| 5.8. | Audit Right. |
| 5.8.1. | Audits. During the Term of this Agreement, following the Exclusive License Effective Date, upon reasonable advance notice (at least [***] days in advance), each Party or its representatives reasonably acceptable to the other Party will have the right to audit, at such Party’s sole cost and expense, the marketing and promotion materials and records of such other Party and its Affiliates for the sole purpose of verifying Freenome’s compliance with Section 5.1 (Commercialization Rights) and Section 5.7 (Diversion) in respect to a Collaboration Product or Exact’s compliance with the scope of the license granted to it under Section 7.1.3 (Commercialization License – Exclusive) (specifically, the exclusion of any rights to MCED Products pursuant to Section 7.3 (Retained Rights)). In addition, during the Term of this Agreement following the Exclusive License Effective Date, upon reasonable advance notice (at least [***] days in advance), Exact or its representatives reasonably acceptable Freenome will have the right to audit, at Exact’s sole cost and expense, the books and records of Freenome and its Affiliates for the sole purpose of verifying the information contained in the Eligibility Restriction Reports in respect of a Collaboration Product. Each type of audit described in this Section 5.8.1 (Audits) may not be conducted more than [***]. |
| 5.8.2. | Corrective Action Plans. In the event that Exact determines in good faith based on any such audit findings (or any Eligibility Restriction Report) that Freenome is not in material compliance with its respective obligations under this Agreement relating to such audit or report (which includes [***]), Freenome will promptly following request therefor (and in any event, within [***] days following such request) prepare and deliver to Exact a written corrective action plan, reasonably acceptable to Exact, with a reasonably detailed plan to rectify such issue. Upon approval by Exact of such corrective action plan, Freenome will promptly implement such corrective action plan in accordance with the terms thereof. In the event that (a) Freenome does not comply with such corrective action plan or (b) Exact finds, with respect to [***] or more Calendar Quarters, that Freenome has [***], then such event will be deemed a breach by Freenome of this Agreement, and Exact will be entitled to seek its remedies with respect to such breach, including damages and a determination as to whether the breach constitutes a material breach of this Agreement. |
Article 7
Licenses; Technology Transfer
| 7.1. | License Grants to Exact. |
| 7.1.1. | Development License. Subject to the terms and conditions of this Agreement, as of the Effective Date, Freenome hereby grants to Exact a non-exclusive, fully paid-up, royalty-free, non-sublicensable (except as set forth in Section 7.4 (Sublicensing)), non-transferable (except as provided in Section 15.1 (Assignment)) right and license under the Freenome Technology during the Term to Develop Collaboration Products in the Field in the Territory in accordance with the Development Plan. |
| 7.1.2. | Commercialization License – Co-Exclusive for Laboratory Developed Tests. Subject to the terms and conditions of this Agreement (including Section 7.3 (Retained Rights)), as of the Effective Date, Freenome hereby grants to Exact a co-exclusive (solely with respect to Freenome and its Affiliates), royalty-bearing, non-sublicensable (except as set forth in Section 7.4 (Sublicensing)), non-transferable (except as provided in Section 15.1 (Assignment)) right and license under the Freenome Technology and Freenome’s interest in the Joint Collaboration Technology to Commercialize Collaboration Products that are Laboratory Developed Tests in the Field in the Territory until the Exclusive License Effective Date. |
| 7.1.3. | Commercialization License – Exclusive. Subject to the terms and conditions of this Agreement (including Section 7.3 (Retained Rights)), as of the Exclusive License Effective Date, Freenome hereby grants to Exact an exclusive (even as to Freenome and its Affiliates), royalty-bearing, non-sublicensable (except as set forth in Section 7.4 (Sublicensing)), non-transferable (except as provided in Section 15.1 (Assignment)) right and license under the Freenome Technology and Freenome’s interest in the Joint Collaboration Technology to Commercialize Collaboration Products in the Field in the Territory for the remainder of the Term. |
| 7.1.4. | Manufacturing License. Subject to the terms and conditions of this Agreement, as of the Effective Date, Freenome hereby grants to Exact a non-exclusive, non-sublicensable (except as set forth in Section 7.4 (Sublicensing)), non-transferable (except as provided in Section 15.1 (Assignment)) right and license under the Freenome Technology during the Term to Manufacture Collaboration Products worldwide for purposes of Developing and Commercializing Collaboration Products in each case as expressly permitted under Section 7.1.1 (Development License), Section 7.1.2 (Commercialization License – Laboratory Developed Tests) and Section 7.1.3 (Commercialization License – Approved Collaboration Products). |
| 7.1.5. | Data License. Subject to the terms and conditions of this Agreement (including Section 5.4 (Disclosure of Patient Data) and Section 11.4 (Compliance with Data Security and Privacy Laws)) and Applicable Law, as of the Effective Date, Freenome hereby grants to Exact a co-exclusive (solely with respect to Freenome and its Affiliates), non-sublicensable (except as set forth in Section 7.4 (Sublicensing) and subject to Applicable Law), transferable (except as provided in Section 15.1 (Assignment)) right and license during the Term of this Agreement to use and exploit the Freenome Patient Data solely to Develop, Manufacture and Commercialize Collaboration Products in each case as expressly permitted under Section 7.1.1 (Development License), Section 7.1.2 (Commercialization License – Laboratory Developed Tests), Section 7.1.3 (Commercialization License – Approved Collaboration Products) and Section 7.1.4 (Manufacturing License). |
| 7.1.6. | Trademark License. Subject to the terms and conditions of this Agreement (including Section 5.9 (Branding)), as of the Effective Date, Freenome hereby grants to Exact a non-exclusive, non-sublicensable (except as set forth in Section 7.4 (Sublicensing)), non-transferable (except as provided in Section 15.1 (Assignment)) right and license during the Term to use and display the Freenome Trademarks to the extent necessary to market and promote a Collaboration Product in accordance with the applicable labeling approved by the FDA for such Collaboration Product and a branding plan mutually agreed by the Parties. Exact will use and display all Freenome Trademarks as set forth in this Section 7.1.6 (Trademark License) in accordance with all written trademark usage guidelines provided by Freenome to Exact in advance. |
| 7.2. | License Grant to Freenome. [***]. |
| 7.6. | Technology Transfers. |
| 7.6.1. | Initial Technology Transfer. Except as otherwise set forth in Section 7.6.2 (Laboratory Technology Transfer), Freenome will, promptly but in any event within [***] days following the Effective Date and at Freenome’s sole cost and expense, technology transfer to Exact or its designee any Know-How in Freenome’s or its Affiliates’ possession or control that is necessary or reasonably useful to support Exact’s co-exclusive right to Develop, Commercialize, Manufacture or Exploit the Collaboration Products that are Laboratory Developed Tests in the Field in the Territory. Upon Exact’s request, Freenome will provide to Exact reasonable technical support with respect to the Freenome Know-How transferred pursuant to the foregoing sentence. Freenome will provide up to [***] person-hours of such assistance to Exact at [***] sole cost and expense. Any such assistance reasonably requested by Exact in excess of such initial [***] person-hours will be provided by Freenome at [***]. |
| 7.6.2. | Laboratory Technology Transfer. No later than [***] days following the JSC’s formation, the JSC will approve an initial draft written technology transfer plan for Freenome to technology transfer to Exact or its designated Affiliate, any Know-How in Freenome’s or its Affiliates’ possession or control that is necessary or reasonably useful to perform tests associated with the Collaboration Products in the Field in the Territory in Exact’s or its Affiliates’ laboratories in order to support Exact’s co-exclusive right to Develop, Commercialize, Manufacture or Exploit the Collaboration Products that are Laboratory Developed Tests in the Field in the Territory and Exact’s exclusive right to Develop, Commercialize, Manufacture or Exploit the Collaboration Products that are not Laboratory Developed Tests in the Field in the Territory (such plan, as may be amended from time to time by the JSC, the “Laboratory Technology Transfer Plan”). The JSC will approve the initial Laboratory Technology Transfer Plan no later than [***] days following the Antitrust Clearance Date. For clarity and without limiting the foregoing, the Laboratory Technology Transfer Plan will provide for [***]. Each Party will perform its respective obligations under the Laboratory Technology Transfer Plan in accordance with such Laboratory Technology Transfer Plan, it being understood that [***]. Upon Exact’s request, Freenome will provide to Exact reasonable technical support and other transitory assistance with respect to the Freenome Know-How transferred pursuant to the foregoing sentences. Freenome will provide up to [***] hours of such assistance and support to Exact at [***] sole cost and expense. Any such assistance reasonably requested by Exact in excess of such initial [***] hours will be provided by Exact at the [***]. In the event that a Party reasonably believes that the Laboratory Technology Transfer Plan has been completed on its terms and the technology transfer has enabled Exact to perform the respective laboratory tests in its or its Affiliates’ laboratories as described in the Laboratory Technology Transfer Plan, it will notify the JSC thereof, and the “Laboratory Technology Transfer Completion” will be deemed to have occurred on such date that the JSC determines that the Laboratory Technology Transfer Plan has been completed on its terms and the technology transfer has enabled Exact to perform the respective laboratory tests in one of its or its Affiliates’ laboratories as designated in the Laboratory Technology Transfer Plan. [***]. |
| 7.6.3. | Ongoing Technology Transfers. Except as otherwise set forth in Section 7.6.2 (Laboratory Technology Transfer), Freenome will from time to time at the reasonable request of Exact, as reasonably required to [***] but otherwise in no event fewer than [***] times per Calendar Year, unless Freenome otherwise agrees in writing, disclose any additional Freenome Know-How conceived, developed or reduced to practice by or on behalf of Freenome or its Affiliates, or acquired by Freenome or its Affiliates, since the initial technology transfer to Exact under Section 7.6.1 (Initial Technology Transfer) or the last transfer under this Section 7.6.3 (Ongoing Technology Transfers), whichever is later, to the extent such Freenome Know-How is necessary or reasonably useful to support Exact’s co-exclusive right to Develop, Commercialize, Manufacture or Exploit the Collaboration Products that are Laboratory Developed Tests in the Field in the Territory or, following the Exclusive License Effective Date, Exact’s exclusive right to Develop, Commercialize, Manufacture or Exploit Collaboration Products in the Field in the Territory, including in each case of the foregoing any Exact-Funded Technology. In addition, Freenome will also from time to time at the reasonable request of Exact, but in no event more than [***] time per Calendar Year, deliver to Exact a then-current, complete and accurate copy of the Freenome Patent Rights. |
| 7.7. | In-Licenses. |
| 7.7.1. | Existing In-License Agreements. Freenome will be solely responsible for all payments to any Third Party under any Existing Upstream Agreement. |
| 7.7.2. | Additional Third Party IP. If, during the Term, any Party reasonably determines that a license to any Patent Right or Know-How owned or controlled by a Third Party is necessary or reasonably useful to avoid infringement, misappropriation or other violation of such Patent Right (including any infringement that may arise from issuance of any patent from a patent application owned or controlled by such Third Party) or Know-How in connection with the Development, Manufacture, Commercialization or Exploitation of a Collaboration Product in the Field in the Territory, then such Party will notify the other in writing and, as between the Parties, Exact will have the first right, but not the obligation, to negotiate and obtain a license to such Patent Right or Know-How from such Third Party covering such uses in the Field in the Territory; provided that [***]. If Exact notifies Freenome in writing that it does not intend to obtain a license to such Third Party Patent Right or Know-How to Develop, Manufacture, Commercialize or Exploit the Collaboration Product in the Field in the Territory, then Freenome will have the right to negotiate and obtain a license to such Third Party Patent Right or Know-How, provided that such Third Party Patent Right or Know-How, as applicable, will not be deemed “Controlled” by Freenome or its Affiliates for purposes of this Agreement and Exact will have no obligation to make any payments to Freenome or its Affiliates or to any Third Party in connection with such license. |
| 7.8.1. | [***]. |
| 7.8.2. | [***]. |
| 8.2. | Development Milestone Payments. |
| 8.2.1. | General. Subject to the remainder of this Section 8.2 (Development Milestone Payments), on and following the Antitrust Clearance Date, Exact will make one-time non-refundable, non-creditable development milestone payments (each such payment and the Alternative Development Milestone Payment, a “Development Milestone Payment”) to Freenome upon the first achievement of each of the development milestone events set forth in Table 8.2.1 (Development Milestone Payments) below (each such event, the Alternative Development Milestone Event and Second-Line USPSTF Milestone Event, a “Development Milestone Event”) for achievement of the applicable Development Milestone Event; provided that Development Milestone Event #3 must occur on or prior to [***], unless Freenome has failed to achieve clause (i) of Development Milestone Event #3 because [***]. A Party will notify the JSC in writing of the achievement of a Development Milestone Event by such Party or its Affiliates no later than [***] days following the date of achievement thereof. Thereafter, Freenome will provide Exact with an invoice for the corresponding Development Milestone Payment, and Exact will pay to Freenome such Development Milestone Payment no later than [***] days after its receipt of an undisputed invoice for such Development Milestone Payment. |
| Table 8.2.1 – Development Milestone Payments | |
| Development Milestone Event | Development Milestone Payment (US Dollars) |
| [***] | $[***] |
| [***]
|
$[***]* |
| [***]
|
$500,000,000 |
| Table 8.2.1 – Development Milestone Payments | |
| Development Milestone Event | Development Milestone Payment (US Dollars) |
|
(b) Laboratory Technology Transfer Completion for such Collaboration Product
|
|
For clarity, subject to Section 8.2.2 (Alternative Development Milestone Payment) and Section 8.2.3 (Second-Line USPSTF Milestone Payment), each Development Milestone Payment will be paid only once for the first achievement of the corresponding Development Milestone Event, regardless of the number of times such Development Milestone Event is achieved and regardless of the number of Collaboration Products that achieve such Development Milestone Event. For clarity, in no event will the total amount payable to Freenome under this Section 8.2 (Development Milestone Payments), in the aggregate and taking into account any alternative milestones that may be payable, exceed Seven Hundred Million Dollars ($700,000,000) in the aggregate, assuming that each Development Milestone Event expressly set forth in Table 8.2.1 (Development Milestone Payments) were achieved.
In addition, in the event of any dispute between the Parties as to whether a [***].
| 8.2.2. | Alternative Development Milestone Payment. Notwithstanding the above, on and following the Antitrust Clearance Date, with respect to Development Milestone Event #2 above, in the event of occurrence of both (a) First Commercial Sale of a Collaboration Product by Exact, its Affiliates or its or their Sublicensees, [***] and (b) Laboratory Technology Transfer Completion for such Collaboration Product (an “Alternative Development Milestone Event”), Exact will pay for such event a reduced Development Milestone Payment (the “Alternative Development Milestone Payment”) as set forth in Table 8.2.2 (Alternative Development Milestone Payment) below [***]: |
| Table 8.2.2 – Alternative Development Milestone Payment | |
| [***] | [***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | [***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
[***]
In addition, notwithstanding the above, if, as of any given time, an Alternative Development Milestone Event has occurred (but Development Milestone Event #2 has not occurred), but subsequently Development Milestone Event #2 occurs, Exact will pay to Freenome upon the occurrence of Development Milestone Event #2, in accordance with the terms and conditions herein, a true-up amount equaling the Development Milestone Payment for Development Milestone Event #2 minus the Alternative Development Milestone Payment (in lieu of the full Development Milestone Payment for Development Milestone Event #2).
| 8.2.3. | Second-Line USPSTF Milestone Payment. [***]. |
| 8.3. | [***] |
| Table 8.3 – [***] | |
| [***] | [***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
| [***] | $[***] |
[***]
| 8.4. | Royalties. |
| 8.4.1. | Royalties. Subject to the provisions of Section 8.4.2 (Royalty Reductions), Exact will, on a Calendar Quarter basis during the applicable Royalty Term, make non-refundable, non-creditable royalty payments to Freenome based on Net Sales by Exact, its Affiliates and its and their Sublicensees of Collaboration Products in the Field in the Territory at the following rates with respect to any Collaboration Product and Calendar Quarter: (a) [***] and (b) [***] (collectively, (a) and (b), “Royalties”). |
| 8.4.2. | Royalty Reductions. |
| (a) | Lack of Valid Claims. On a Collaboration Product-by-Collaboration Product basis, if, during any Calendar Quarter prior to the expiration of the Royalty Term for a given Collaboration Product, there is no Valid Claim of a Royalty-Bearing Patent Covering such Collaboration Product in the Territory, then the Royalties owed will be reduced by [***]. |
| (b) | Third Party Payments. For any agreement (other than an Upstream Agreement) with a Third Party pursuant to which Exact is granted rights (whether by acquisition or license, including pursuant to a settlement or judgment, and whether constituting damages or royalties) under any [***] that are [***] for the Exploitation of Collaboration Products in the Field in the Territory, Exact may credit [***] of any payments made by Exact to a Third Party under such agreement in a given Calendar Quarter against any payments payable by Exact to Freenome in such Calendar Quarter if such payment is for a Collaboration Product that exists as of the Effective Date (including any Collaboration Product that exists as of the Effective Date that meets the V1 Collaboration Product Standards or V2 Collaboration Product Standards, or any other Existing CRC Product), [***]. Except as otherwise provided in the immediately preceding sentence, for any agreement (other than an Upstream Agreement) with a Third Party pursuant to which Exact is granted rights (whether by acquisition or license) under any [***] that are [***] for the Exploitation of Collaboration Products in the Field in the Territory, Exact may credit [***] of any payments made by Exact to a Third Party under such agreement with respect to a Collaboration Product in a given Calendar Quarter against any payments payable by Exact to Freenome in such Calendar Quarter with respect to such Collaboration Product. [***]. |
| (c) | Cumulative Reductions Floor. In no event will the Royalties otherwise due to Freenome for any Collaboration Product in a Calendar Quarter during the applicable Royalty Term for such Collaboration Product be reduced pursuant to [***] by more than [***] of the amount of Royalties otherwise due to Freenome for such Collaboration Product in such Calendar Quarter, provided that [***]. In no event will the Royalties otherwise due to Freenome for any Collaboration Product in a Calendar Quarter during the applicable Royalty Term for such Collaboration Product be reduced pursuant to the first sentence of Section 8.4.2(b) (Third Party Payments) by more than [***] of the amount of Royalties otherwise due to Freenome in such Calendar Quarter, [***]. |
| 8.4.3. | Royalty Reports. Exact will calculate all amounts payable to Freenome pursuant to this Section 8.4 (Royalties) at the end of each Calendar Quarter during the applicable Royalty Term. Exact will pay to Freenome the applicable Royalties due, less any applicable withholding tax that is required by Applicable Law in accordance with Section 8.9 (Taxes), with respect to a given Calendar Quarter within [***] days after the end of such Calendar Quarter. Each payment of Royalties due to Freenome will be accompanied by a royalty report stating [***] during the applicable Calendar Quarter [***]. |
| 8.7. | Payment Terms. |
| 8.7.1. | Manner of Payment. All payments to be made between the Parties under this Agreement will be made in Dollars and will be paid by wire transfer in immediately available funds in accordance with the Wire Instructions. |
| 8.7.2. | Late Payments. If a Party does not receive payment of any undisputed sum due to it on or before the due date set forth under this Agreement, then simple interest will thereafter accrue on the sum due to such Party from the due date until the date of payment at a [***]. |
| 8.7.3. | Currency Exchange. All amounts due to either Party hereunder will be expressed in Dollars. The rate of exchange to be used in computing the amount of currency equivalent in Dollars owed to a Party under this Agreement will be the exchange rate used by such Party in its financial reporting in accordance with its Accounting Standard. |
Article 9
Intellectual Property
| 9.1. | Ownership. |
| 9.1.1. | Background IP. As between the Parties, each Party will solely own its Background Technology. |
| 9.1.2. | Other Inventions. As between the Parties, ownership of Collaboration Know-How and Collaboration Patent Rights will be determined by inventorship, and all determinations of inventorship under this Agreement will be made in accordance with U.S. patent law. The Parties will jointly own any and all Joint Collaboration Technology. Subject to the licenses granted to the other Party under this Agreement, each Party will be entitled to license, assign and otherwise practice under the Joint Collaboration Technology without the duty of accounting or seeking consent from the other Party, and where consent is required, such consent is hereby given. |
| 9.1.3. | Disclosure and Cooperation. Freenome will promptly disclose to Exact all invention disclosures or other similar documents relating to Exact-Funded Technology conceived, developed or reduced to practice by or on behalf of Freenome or its Affiliates hereunder during the Term, and all invention disclosures or other similar documents submitted to Freenome by its or its Affiliates’ employees, agents or independent contractors relating to Exact-Funded Technology, and will also respond promptly to reasonable requests from Exact for additional information relating to such disclosures, documents or applications. |
| 9.1.4. | Personnel Obligations. Each employee, agent or independent contractor of a Party or its respective Affiliates performing work under this Agreement will, prior to commencing such work, be bound by written invention assignment obligations, including: (a) promptly reporting any invention, discovery or other intellectual property right to the extent relating to the Exploitation of Collaboration Products; (b) presently assigning to the applicable Party or Affiliate all of his or her right, title and interest in and to any invention, discovery or other intellectual property right to the extent relating to the Exploitation of Collaboration Products; (c) cooperating in the Prosecution and Maintenance, defense and enforcement of any patent and patent application in accordance with this Agreement; and (d) performing all acts and signing, executing, acknowledging and delivering any and all documents required for effecting the obligations and purposes of this Agreement. It is understood and agreed that such invention assignment agreement need not reference or be specific to this Agreement. Each Party will be solely responsible for any payments to inventors with an obligation to assign, or who do assign, their rights, title and interests in and to any Collaboration Know-How and Collaboration Patent Rights to such Party. |
| 9.1.5. | Joint Research Agreement. This Agreement is a joint research agreement within the meaning of 35 U.S.C. § 100(H). Notwithstanding any provision to the contrary in this Article 9 (Intellectual Property), no Party will have the right to make an election under 35 U.S.C. § 102(b)(2)(C) or 35 U.S.C. § 102(c) when exercising its rights under this Article 9 (Intellectual Property) without the prior written consent of the other Party, which will not be unreasonably withheld, conditioned or delayed. With respect to any such permitted election, the Parties will use reasonable efforts to cooperate and coordinate their activities with respect to any submissions, filings or other activities in support thereof. |
| 9.2.1. | Exact Prosecuted Patent Rights. |
| (a) | Exact’s Right. As between the Parties, Exact will have the first right (but not the obligation) to Prosecute and Maintain the Joint Collaboration Patent Rights in both Parties’ names (each such Patent Right, an “Exact Prosecuted Patent Right”), with [***] and using counsel selected by Exact. Exact will timely provide Freenome with substantive communications from the USPTO regarding the Exact Prosecuted Patent Rights, as well as a reasonable opportunity to review and comment on drafts of any material filings or responses to be made to the USPTO in advance of submitting such filings or responses. Exact will consider Freenome’s comments regarding such communications and drafts in good faith. In addition, Exact will provide Freenome with copies of all final material filings and responses made to the USPTO with respect to the Exact Prosecuted Patent Rights in a timely manner following submission thereof. |
| (b) | Freenome’s Right. If Exact determines in its sole discretion to abandon or not Prosecute and Maintain any Exact Prosecuted Patent Right, then Exact will provide Freenome with written notice promptly after such determination to allow Freenome [***] to determine, in its sole discretion, its interest in Prosecuting and Maintaining such Exact Prosecuted Patent Right (which notice by Exact will be given no later than [***] days prior to the final deadline for any pending action or response that may be due with respect to such Patent Right with the USPTO). If Freenome provides written notice to Exact expressing its interest in Prosecuting or Maintaining such Patent Right, then, with respect to such Patent Right, (X) Freenome may, in its sole discretion and at [***] sole cost and expense, Prosecute and Maintain or abandon such Patent Right, and (Y) Exact will promptly: (1) provide to Freenome or counsel designated by Freenome the file histories for, and correspondence with foreign patent counsel related to, such Patent Right, (2) provide to Freenome a report detailing the status of such Patent Right as of the applicable date of such notice by Exact, and (3) provide all assistance reasonably requested by Freenome in Freenome’s Prosecution and Maintenance of the applicable Patent Rights (including by executing all requested documents and providing any additional information requested with respect to the applicable Patent Rights). |
| 9.2.2. | Freenome Prosecuted Patent Rights. |
| (a) | Freenome’s Right. As between the Parties, Freenome will have the first right (but not the obligation) to Prosecute and Maintain the Freenome Patent Rights specifically Covering the Collaboration Products in the Field in the Territory (each, a “Freenome Prosecuted Patent Right”), [***] and using counsel reasonably selected by Freenome. Freenome will timely provide Exact with substantive communications from the USPTO regarding the Freenome Prosecuted Patent Rights, as well as a reasonable opportunity to review and comment on drafts of any material filings or responses to be made to the USPTO in advance of submitting such filings or responses. Freenome will consider Exact’s comments regarding such communications and drafts in good faith. In addition, Freenome will provide Exact with copies of all final material filings and responses made to the USPTO with respect to the Freenome Prosecuted Patent Rights in a timely manner following submission thereof. |
| (b) | Exact’s Right. If Freenome determines in its sole discretion to abandon or not Prosecute and Maintain any Freenome Prosecuted Patent Right, then Freenome will provide Exact with written notice promptly after such determination to allow Exact a reasonable period of time to determine, in its sole discretion, its interest in Prosecuting and Maintaining such Exact Prosecuted Patent Right (which notice by Freenome will be given no later than [***] days prior to the final deadline for any pending action or response that may be due with respect to such Patent Right with the USPTO). If Exact provides written notice to Freenome expressing its interest in Prosecuting or Maintaining such Patent Right, then, with respect to such Patent Right, (X) Exact may, in its sole discretion and at [***] sole cost and expense, Prosecute and Maintain or abandon such Patent Right in Freenome’s name, and (Y) Freenome will promptly: (1) provide to Exact or counsel designated by Exact the file histories for, and correspondence with foreign patent counsel related to, such Patent Right, (2) provide to Exact a report detailing the status of such Patent Right as of the applicable date of such notice by Freenome, and (3) provide all assistance reasonably requested by Exact in Exact’s Prosecution and Maintenance of the applicable Patent Rights (including by executing all requested documents and providing any additional information requested with respect to the applicable Patent Rights). |
| 9.2.3. | Other Rights. As between the Parties, except as expressly provided in this Section 9.2 (Prosecution and Maintenance of Patent Rights), each Party will have the sole right to Prosecute and Maintain any Patent Right that it solely Controls. |
| 9.3.1. | Notices. Each Party will promptly report in writing to the other Party any Competitive Infringement of which such Party (or any of its Affiliates or Sublicensees) becomes aware and will provide the other Party with all available evidence of such Competitive Infringement in such Party’s control. |
| 9.3.2. | Infringement Actions. |
| (a) | Prior to Exclusive License Effective Date. As between the Parties, Freenome will have the first right, but not the obligation, to bring an appropriate suit or other action to abate any existing, alleged or threatened Competitive Infringement involving any Exact Prosecuted Patent Right, Freenome Prosecuted Patent Right, any Joint Collaboration Know-How or any Freenome Know-How specifically Covering a Collaboration Product in the Field in the Territory prior to the Exclusive License Effective Date. With respect to any Patent Rights or Know-How in each case that Freenome has the first right to enforce, Freenome will notify Exact of its decision as to whether to take any action in accordance with this Section 9.3.2(a) (Infringement Actions; Prior to Exclusive License Effective Date) at least [***] days before any time limit set forth in any Applicable Law, or within [***] days after being notified of such Competitive Infringement, whichever is shorter. If Freenome decides not to take such action with respect to any Patent Rights or Know-How that it has the right to enforce pursuant to this Section 9.3.2(a) (Infringement Actions; Prior to Exclusive License Effective Date), then Freenome will so notify Exact in writing, and Exact will have the right, but not the obligation, to commence a suit or take action to enforce the applicable Patent Right or Know-How to abate such Competitive Infringement, by counsel of its own choice and at Exact’s sole expense. |
| (b) | On and After Exclusive License Effective Date. As between the Parties, Exact will have the first right, but not the obligation, to bring an appropriate suit or other action to abate any existing, alleged or threatened Competitive Infringement involving any Exact Prosecuted Patent Right, Freenome Prosecuted Patent Right, any Joint Collaboration Know-How or any Freenome Know-How specifically Covering a Collaboration Product in the Field in the Territory on and after the Exclusive License Effective Date. With respect to any Patent Rights or Know-How in each case that Exact has the first right to enforce, Exact will notify Freenome of its decision as to whether to take any action in accordance with this Section 9.3.2(b) (Infringement Actions; On and After Exclusive License Effective Date) at least [***] days before any time limit set forth in any Applicable Law, or within [***] days after being notified of such Competitive Infringement, whichever is shorter. If Exact decides not to take such action with respect to any Patent Rights or Know-How that it has the right to enforce pursuant to this Section 9.3.2(b) (Infringement Actions; On and After Exclusive License Effective Date), then Exact will so notify Freenome in writing, and Freenome will have the right, but not the obligation, to commence a suit or take action to enforce the applicable Patent Right or Know-How to abate such Competitive Infringement, by counsel of its own choice and at Freenome’s sole expense. |
| (c) | Other Rights. As between the Parties, except as expressly provided in this Section 9.3 (Third Party Infringement and Defense), each Party will have the sole right to enforce any Patent Right or Know-How that such Party solely Controls, and either Party will have the right to enforce any Joint Collaboration Patent Right or Joint Collaboration Know-How. |
| (d) | Cooperation. Each Party will provide to the Party enforcing any rights under this Section 9.3.2 (Infringement Actions) reasonable assistance in such enforcement, at such enforcing Party’s request and expense, including joining any applicable action as a party plaintiff if required by Applicable Law to pursue such action or providing the enforcing Party any reasonably requested documentation or other materials. The enforcing Party will keep the other Party regularly informed of the status and progress of such enforcement efforts, including providing the other Party a reasonable opportunity to comment on the enforcing Party’s determination of litigation strategy and the filing of important papers to the competent court and the enforcing Party will consider such comments in good faith. If one Party elects to bring suit or take action against the Competitive Infringement, then the other Party will have the right, during or prior to commencement of the trial, suit or action, to join any such suit or action at such other Party’s own expense by counsel of its own choice, but such other Party will at all times reasonably cooperate with the Party bringing such action. |
| (e) | Expenses. Subject to this Section 9.3.2(e) (Expenses) and Section 9.3.2(g) (Allocation of Proceeds), the enforcing Party will be responsible for all expenses arising from a suit or action against a Competitive Infringement. For the avoidance of doubt, the enforcing Party will not be responsible for the other Party’s internal expenses (e.g., FTEs) incurred as a result of the other Party’s cooperation with the enforcement action as provided in this Section 9.3.2 (Infringement Actions). |
| (f) | Settlement. Neither Party will settle any claim, suit or action that it brought under this Section 9.3.2 (Infringement Actions) in a manner that could reasonably be expected to affect the other Party’s rights or interests without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed. |
| (g) | Allocation of Proceeds. If either Party recovers monetary damages from any Third Party in a suit pursuant to Section 9.3.2(a) or (b) (Infringement Actions) or any royalties from a license agreement with a Third Party related to any alleged Competitive Infringement, then such recovery will be allocated first to the reimbursement of any expenses incurred by each Party in such litigation, action or license, and any remaining amounts will be split as follows: (i) if Exact brings the action, then [***] will be retained by Exact and [***] will be paid to Freenome, and (ii) if Freenome brings the action, then [***] will be retained by Freenome and [***] will be paid to Exact. |
| 9.3.3. | Defense. As between the Parties, the Party controlling the Prosecution and Maintenance of any Patent Right under Section 9.2 (Prosecution and Maintenance of Patent Rights) will have the right (but not the obligation), at its sole discretion, to defend against a declaratory judgment action, post-grant review proceeding, inter partes review, opposition proceeding, interference or any other legal or administrative action challenging any such Patent Right. Any awards or amounts received in defending any such action will be allocated between the Parties as provided in 9.3.2(g) (Allocation of Proceeds). |
| 9.3.4. | Other Invalidity or Unenforceability Proceedings. If either Party desires to bring an opposition, action for declaratory judgment, nullity action, interference, declaration for non-infringement, reexamination, post-grant proceeding or other attack upon the validity, title or enforceability of a Patent Right owned or controlled by a Third Party and having one or more claims that Cover a Collaboration Product, or the Exploitation of a Collaboration Product (except insofar as such action is a counterclaim to or defense of, or accompanies a defense of, a Third Party’s claim or assertion of infringement under Section 9.3.3 (Defense), in which case the provisions of Section 9.3.3 (Defense) will govern), such Party will so notify the other Party and the Parties will promptly confer to determine whether to bring such action or the manner in which to settle such action. Exact will have the initial right, but not the obligation, to bring, at its own expense and in its sole control, such action in the Territory and will consider Freenome’s comments in good faith. Freenome will be entitled to separate representation in such proceeding by counsel of its own choice and at its own expense, and will cooperate fully with Exact. Any awards or amounts received in bringing such action will be first allocated to reimburse Exact’s expenses in such action, and any remaining amounts will be allocated between the Parties in accordance with the principle set forth in Section 9.3.2(g) (Allocation of Proceeds). |
Article 10
Confidentiality and Publication
| 10.1. | Nondisclosure and Non-Use Obligations. |
| 10.1.1. | Non-Disclosure and Non-Use. Except as otherwise expressly set forth herein, the Receiving Party will, during the Term and for a period of [***] years thereafter, keep the Confidential Information of the Disclosing Party confidential using at least the same degree of care with which the Receiving Party holds its own confidential information of a similar nature (but in no event less than a reasonable degree of care) and will not, without the prior written approval of the Disclosing Party, (a) disclose such Confidential Information to any of its Affiliates or any Third Party, except to its Affiliates and its and their directors, officers, employees, consultants, legal advisors, agents and representatives, and its and their Sublicensees and Subcontractors, in each case who have a need to know such Confidential Information in order for such Receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality, non-disclosure and non-use provisions at least as restrictive and protective of the Parties as those set forth in this Agreement and for whom the Disclosing Party will be responsible, and (b) use such Confidential Information for any purpose other than for the purposes of performing the Receiving Party’s obligations or exercising the Receiving Party’s rights under this Agreement (including Freenome’s use of Freenome Know-How to exercise any of its retained rights hereunder). The Receiving Party will use diligent efforts to cause the foregoing Persons to comply with the restrictions on use and disclosure set forth in this Section 10.1.1 (Non-Disclosure and Non-Use) and will be responsible for ensuring that such Persons maintain the Disclosing Party’s Confidential Information in accordance with this Article 10 (Confidentiality and Publication). For the avoidance of doubt, and notwithstanding anything herein to the contrary, Freenome may use Freenome Know-How and Development Results to exercise its retained rights under Section 7.3 (Retained Rights), including the Development, Manufacturing, and Commercialization of MCED Products, subject to the remainder of this Article 10 (Confidentiality and Publication). Each Party will promptly notify the other Party of any misuse or unauthorized disclosure of the other Party’s Confidential Information. The Parties agree that, effective as of the Effective Date, the Existing CDA will be superseded by this Agreement, and disclosures made prior to the Effective Date pursuant to the Existing CDA will be subject to the confidentiality and non-use provisions of this Agreement. Notwithstanding the foregoing or anything to the contrary, (i) Personal Data will be kept in confidence in perpetuity and (ii) Freenome will not disclose any Freenome Know-How to any Third Party unless such Third Party is bound by obligations of confidentiality, non-disclosure and non-use at least as restrictive or protective of the Parties as those set forth in this Agreement or otherwise customary for such type and scope of disclosure, subject to the permitted disclosures in Section 10.1.2 (applied mutatis mutandis). |
| 10.1.2. | Permitted Disclosures. Notwithstanding the obligations of confidentiality and non-use set forth above, a Receiving Party may disclose Confidential Information (excluding Personal Data) of the Disclosing Party as follows: |
| (a) | to applicable Governmental Authorities in connection with (i) the Prosecution and Maintenance of Patent Rights that it has a right to Prosecute and Maintain hereunder; or (ii) Regulatory Submissions and other filings with such Governmental Authorities (including Regulatory Authorities), as necessary for the Exploitation of a Collaboration Product; |
| (b) | disclosure of the existence and applicable terms of this Agreement and, subject to Section 10.1.2(c) (Permitted Disclosures), the status and results of Exploitation of one or more Collaboration Products to actual or bona fide potential investors, acquirors, Sublicensees, lenders, and other financial or commercial partners (including in connection with any royalty factoring transaction), and their respective attorneys, accountants, banks, investors and advisors, solely for the purpose of evaluating or carrying out an actual or potential investment, acquisition, sublicense, debt transaction or collaboration; provided that, in each such case, (i) such Persons are bound by obligations of confidentiality, non-disclosure and non-use provisions at least as restrictive or protective of the Parties as those set forth in this Agreement or otherwise customary for such type and scope of disclosure, (ii) to the greatest extent practicable, such disclosure is limited only for the particular context in which it is being disclosed, and (iii) the term of such confidentiality obligation must be consistent with industry standards, but in all cases at least [***]; |
| (c) | if required by Applicable Law, including as may be required in connection with any filings made with, or by the disclosure policies of, a major stock exchange (as set forth in additional detail in Section 10.1.3 (Confidential Treatment)); provided that the Party seeking to disclose the Confidential Information of the other Party: (i) will use all reasonable efforts to inform the other Party prior to making any such disclosures and cooperate with the other Party in seeking a protective order or other appropriate remedy (including redaction); and (ii) will, whenever possible, request confidential treatment of such information; |
| (d) | to prosecute or defend litigation and to enforce Patent Rights; and |
| (e) | in the case of Freenome, disclosure of Freenome Know-How to Third Parties in connection with products other than Collaboration Products, subject to the obligations described in the last sentence of Section 10.1.1 (Non-Disclosure and Non-Use). |
If and whenever any Confidential Information is disclosed in accordance with this Section 10.1.2 (Permitted Disclosures), such disclosure will not cause any such information to cease to be Confidential Information except to the extent that such disclosure results in a public disclosure of such information (other than by breach of this Agreement). In addition, no combination of features or disclosures will be deemed to fall within the foregoing exclusions ((a)-(d)) merely because individual features are published or available to the general public or in the rightful possession of the Receiving Party, unless the combination itself and principle of operation are published or available to the general public or in the rightful possession of the Receiving Party.
| 10.1.3. | Confidential Treatment. |
| (a) | Notwithstanding any provision to the contrary set forth in this Agreement, if a Party is required to make a disclosure of the other Party’s Confidential Information pursuant to Section 10.1.2(c) (Permitted Disclosure), then it will, to the extent not prohibited by Applicable Law or judicial or administrative process, give reasonable advance notice to the other Party of such proposed disclosure and use reasonable efforts to secure confidential treatment of such information and will only disclose that portion of Confidential Information that is legally required to be disclosed as advised by its legal counsel. In any event, each Party agrees to take reasonable action to avoid any disclosure of Confidential Information of the other Party hereunder. |
| (b) | In addition, the Parties acknowledge that either or both Parties may be obligated to file a copy of this Agreement (or portions of this Agreement or an abstract of the terms of this Agreement) with the United States Securities and Exchange Commission (“SEC”) or other Governmental Authorities. Each Party will be entitled to make such a required filing, but, to the extent permitted by Applicable Law, the filed copy of this Agreement (or portions of this Agreement or an abstract of the terms of this Agreement, as applicable) will be redacted (“Redacted Agreement”) and the filing Party will request confidential treatment of the terms redacted from this Agreement for a reasonable period of time, in each case, pursuant to the following procedure. In the event of any such filing, each Party will (i) permit the other Party to review and comment upon the proposed Redacted Agreement at least [***] Business Days in advance of its submission to the SEC or such other Governmental Authorities, (ii) cooperate in good faith with and reasonably consider and incorporate the other Party’s reasonable comments thereon to seek confidential treatment of the terms and conditions of this Agreement that such other Party requests to be kept confidential or otherwise afforded confidential treatment, to the extent consistent with the then-current legal requirements governing redaction of information from material agreements (as determined based on the advice of such Party’s outside counsel) that must be publicly filed in the applicable country, (iii) only disclose Confidential Information that counsel reasonably advises is legally required to be disclosed, (iv) promptly advise the other Party of any other substantive communications between it or its representatives with such Governmental Authority with respect to such confidential treatment request, (v) upon the written request of the other Party, request an appropriate extension of the term of the confidential treatment period upon the expiration thereof, where available, and (vi) if such Governmental Authority requests any changes to the redactions set forth in the Redacted Agreement, use reasonable efforts to support the redactions in the Redacted Agreement as originally filed (to the extent consistent with the then-current legal requirements governing redaction of information from material agreements that must be publicly filed) and, to the extent reasonably practicable, not agree to any changes to the redactions proposed in the Redacted Agreement without first discussing such changes with the other Party and taking the other Party’s comments into consideration when deciding whether to agree to such changes. Each Party will be responsible for its own legal and other external costs in connection with any such filing, registration, or notification. |
| 10.2. | Publication and Publicity. |
| 10.2.1. | Publication. Except for disclosures permitted in accordance with Section 10.1.2 (Permitted Disclosures) and Section 10.1.3(b) (Confidential Treatment), Exact will have the right to review and approve any publication or public presentation relating to any Collaboration Product that Freenome or its Affiliates wishes to issue, and, in any event, either Party wishing to make a publication or public presentation that contains the Confidential Information of the other Party will deliver to the other Party and the JSC a copy of the proposed written publication or presentation at least [***] days prior to submission for publication or presentation. The reviewing Party, through the JSC, will have the right to (a) propose modifications to the publication or presentation for patent reasons or trade secret reasons or to remove Confidential Information of the reviewing Party or its Affiliates, and the publishing Party will remove all Confidential Information of the reviewing Party if requested by the reviewing Party and otherwise use good faith efforts to reflect such Party’s reasonable comments, or (b) request a reasonable delay in publication or presentation in order to protect patentable information. If the reviewing Party requests a delay to enable the reviewing Party to file patent applications as permitted under Article 9 (Intellectual Property) protecting such Party’s right in such information, then the publishing Party will delay such submission or presentation for a period of [***] days (or such shorter period as may be agreed by the Parties). All publications relating to any Collaboration Product will be prepared, presented, and published in accordance with applicable industry accepted guidelines including as applicable: (i) International Committee of Medical Journal Editors (ICMJE) guidelines and (ii) Uniform Requirements for Manuscripts Submitted to Biomedical Journals: Writing and Editing for Biomedical Publication. |
| 10.2.2. | Publicity. Except as set forth in Section 10.1 (Nondisclosure and Non-Use Obligations), Section 10.2 (Publication and Publicity) or Section 10.1.3(b) (Confidential Treatment), the terms of this Agreement may not be disclosed by either Party. Subject to Section 5.9 (Branding) and Section 7.1.6 (Trademark License), neither Party will use the name or Trademark of the other Party or its directors or employees in any publicity, news release or disclosure relating to this Agreement, its subject matter, or the activities of the Parties hereunder, in each case, without the prior express written permission of the other Party, except (a) as may be required by Applicable Law (as determined based on the advice of outside counsel), including by the rules or regulations of the SEC or similar Governmental Authority or of any stock exchange or listing entity, provided that the Party making such disclosure or use of the name or Trademark of the other Party or its employees gives the other Party reasonable prior written notice of such disclosure and otherwise complies with Section 10.1.2 (Permitted Disclosures) or Section 10.1.3(b) (Confidential Treatment), or (b) as expressly permitted by the terms hereof. |
| 10.2.3. | Press Release. Each Party may issue an initial press release in connection with the transactions contemplated under this Agreement, on a timeline mutually agreed by the Parties following the Effective Date (but in any event no later than August 6, 2025), provided that the other Party has approved in advance the contents of such press release. Following the initial press release, except as provided in Section 10.1.3 (Confidential Treatment), Section 10.2.2 (Publicity) or this Section 10.2.3 (Press Release), neither Party may issue any press release or public announcement or disclosure relating to this Agreement without the prior written approval of the other Party, except that on and after the Antitrust Clearance Date, Exact will have the right to issue any press release or public announcement or disclosure regarding the Exploitation of Collaboration Products in the Field in the Territory without the prior written approval of Freenome. Notwithstanding the foregoing, a Party may (a) once a press release or other public statement is issued in accordance with this Agreement, make subsequent public disclosure of the information contained in such press release or other written statement (so long as such information remains true and correct), and (b) issue a press release or public announcement as required by Applicable Law (including a press release corresponding to any securities disclosure, such as pursuant to a Form 8-K, or any earnings or financial press release), including by the rules or regulations of the SEC or similar regulatory agency in a country other than the United States or of any stock exchange or listing entity, provided that such Party gives reasonable prior notice to the other Party of and the opportunity to comment on the press release or public announcement, and otherwise complies with this Article 10 (Confidentiality and Publication). |
Article 11
Representations, Warranties and Covenants
| 11.1. | Mutual Representations and Warranties. Each Party represents and warrants to the other Party as of the Effective Date and the Bring-Down Date that: |
| 11.1.1. | such Party is a corporation duly organized, validly existing and in good standing under the Applicable Laws of its jurisdiction of incorporation or formation; |
| 11.1.2. | such Party has all requisite corporate power and corporate authority to enter into this Agreement and to carry out its obligations under this Agreement; |
| 11.1.3. | all requisite corporate action on the part of such Party, its directors and stockholders required by Applicable Law for the authorization, execution and delivery by such Party of this Agreement, and the performance of all obligations of such Party under this Agreement, has been taken; |
| 11.1.4. | this Agreement has been duly executed and delivered on behalf of such Party and constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms, except to the extent that enforcement of the rights and remedies created hereby is subject to (a) bankruptcy, insolvency, reorganization, moratorium and other similar Applicable Laws of general application affecting the rights and remedies of creditors and (b) Applicable Laws governing specific performance, injunctive relief and other equitable remedies; |
| 11.1.5. | the execution, delivery and performance of this Agreement, and compliance with the provisions of this Agreement, by such Party do not and will not: (a) violate any provision of Applicable Law or any ruling, writ, injunction, order, permit, judgment or decree of any Governmental Authority, (b) constitute a breach of, or default under (or an event that, with notice or lapse of time or both, would become a default under) or conflict with, or give rise to any right of termination, cancellation or acceleration of, any agreement, arrangement or instrument, whether written or oral, by which such Party or any of its assets are bound, or (c) violate or conflict with any of the provisions of such Party’s organizational documents (including any articles or memoranda of organization or association, charter, bylaws or similar documents); and |
| 11.1.6. | no consent, approval, authorization or other order of, or filing with, or notice to, any Governmental Authority or other Person is required to be obtained or made by such Party in connection with the authorization, execution and delivery by such Party of this Agreement, except (a) as may be necessary to conduct Clinical Trials or to seek or obtain PMA Approvals and (b) as set forth in Article 14 (Antitrust Clearance; Cooperation and Efforts). |
| 11.2.1. | Freenome Patent Rights. Schedule 1.95 (Existing Freenome Patent Rights) sets forth a complete and accurate list of all Freenome Patent Rights issued or pending, including the owner(s) thereof. |
| 11.2.2. | Freenome Trademarks. Schedule 1.99 (Existing Freenome Trademarks) sets forth a complete and accurate list of all registered or pending Freenome Trademarks, including the owner(s) thereof. |
| 11.2.3. | Freenome Technology. Freenome has (a) legal and beneficial title and sole ownership of, or otherwise exclusively Controls, all Freenome Technology, free and clear of all mortgages, pledges, liens, encumbrances, security interests, charges or claims of any kind, including claims by any Governmental Authority or academic or non-profit institution; and (b) full right and authority to grant to Exact and its Affiliates the licenses granted or purported to be granted in this Agreement under the Freenome Technology. Neither Freenome nor any of its Affiliates has granted any option, right or license to any Person relating to any Freenome Technology or Freenome Trademarks that would conflict with or limit the scope of any of the licenses or other rights granted or purported to be granted to Exact hereunder. |
| 11.2.4. | Control. Freenome Controls all Patent Rights and Know-How owned, invented or licensed by Freenome that are necessary or reasonably useful to Develop, Manufacture, Commercialize and otherwise Exploit the Existing CRC Product in the Field in the Territory. |
| 11.2.5. | No Payments. Neither Freenome nor any of its Affiliates is subject to any payment obligations to Third Parties as a result of the execution or performance of this Agreement or the Development, Manufacture, Commercialization or other Exploitation of Collaboration Products in the Field in the Territory. |
| 11.2.6. | Ownership of Freenome Technology. With respect to any Freenome Technology owned or purported to be owned by Freenome, (a) Freenome and its Affiliates have obtained from all employees and independent contractors who participated in the invention or authorship thereof, assignments of all ownership rights of such employees and independent contractors in such Freenome Technology pursuant to a written agreement; (b) all of its employees, officers, contractors and consultants who will act on Freenome’s behalf under this Agreement have executed agreements or have existing obligations under Applicable Law requiring assignment to Freenome or its Affiliate, as applicable, of all rights, title, and interests in and to inventions made during the course of and as the result of this Agreement (other than rights to improvements to contractors’ background intellectual property that may be retained by such contractors); and (c) to Freenome’s Knowledge, no officer or employee of Freenome or its Affiliate is subject to any agreement with any other Person that requires such officer or employee to assign any interest in any Freenome Technology to any Person other than Freenome or its Affiliate. Freenome exclusively owns all rights, title and interests in and to the Freenome Patent Rights, and where Freenome does not exclusively own any such Patent Right, Schedule 1.95 (Existing Freenome Patent Rights) identifies the Person that, to Freenome’s Knowledge, Controls such Patent Rights and the agreement pursuant to which Freenome Controls such Patent Right. The Freenome Patent Rights that Freenome owns or for which Freenome has rights to direct prosecution are being prosecuted in the USPTO in compliance with Applicable Law, and Freenome and its Affiliates have presented all references, documents or information that it and the inventors had a duty to disclose under Applicable Law, including 37 C.F.R. 1.56, to the relevant patent examiners at the USPTO for each such Freenome Patent Right. |
| 11.2.7. | Validity and Enforceability. With respect to Freenome Patent Rights, there are no oppositions, nullity actions, interferences, inter partes reexaminations, inter partes reviews, post-grant reviews, derivation proceedings or other proceedings pending or, to Freenome’s Knowledge, threatened in writing (but excluding office actions or similar communications issued by the USPTO in the ordinary course of Prosecution and Maintenance of any patent application) that challenge the ownership, scope, duration, validity, enforceability, priority or right to practice the Freenome Patent Rights owned or purported to be owned by Freenome or, to the Knowledge of Freenome, any other Freenome Patent Rights. To Freenome’s Knowledge, all issued Freenome Patent Rights are valid and enforceable, and Freenome does not have any Knowledge of any fact or circumstance that would cause Freenome to reasonably conclude that any of the Freenome Patent Rights is, or will be upon issuance, invalid or unenforceable. |
| 11.2.8. | Inventorship. Inventorship of each Freenome Patent Right is properly identified on each patent and patent application, and Freenome has no Knowledge of any disputes with respect to inventorship of any Freenome Patent Rights. |
| 11.2.9. | Good Standing. (a) All official fees, maintenance fees and annuities for any pending or issued Freenome Patent Rights that have come due have been paid, (b) all material administrative procedures with Governmental Authorities have been completed for such Freenome Patent Rights such that, to the Knowledge of Freenome, such Patent Rights are subsisting and in good standing, and (c) all Freenome Patent Rights have been Prosecuted and Maintained in good faith. |
| 11.2.10. | Duty of Disclosure. To Freenome’s Knowledge, all Freenome Patent Rights have been duly and properly filed and maintained and the inventors thereof and parties prosecuting such applications have complied in all material respects with their duty of candor and disclosure to the USPTO in connection with such applications. |
| 11.2.11. | Prior Art. To Freenome’s Knowledge, there is not any reference or prior art that would anticipate the issuance of any claim as pending in any Freenome Patent Rights. |
| 11.2.12. | Government Funding. No funding, resources or facilities of a Governmental Authority or a university, college or other educational institution or research center was used in the development of any Freenome Patent Rights owned or purported to be owned by Freenome or its Affiliate, or the Knowledge of Freenome, any other Freenome Patent Rights. No Person who was involved in, or who contributed to, the creation or development of any Freenome Patent Rights owned or purported to be owned by Freenome or any of its Affiliates, or the Knowledge of Freenome, any other Freenome Patent Rights has performed services for the government, university, college, or other educational institution or research center in a manner that would affect Freenome’s rights in the Freenome Patent Rights. |
| 11.2.13. | No Claims. There are (a) no claims, judgments or settlements against or owed by Freenome or its Affiliates and (b) no pending or, to Freenome’s Knowledge, threatened claims or litigation against Freenome or its Affiliates, or to Freenome’s Knowledge, any of its licensors or licensees, in each case ((a) and (b)), related to the Freenome Technology or any Collaboration Product. |
| 11.2.14. | Notice of Infringement or Misappropriation. Neither Freenome nor any of its Affiliates has received any written notice or threat in writing from any Person (including any invitation to license) asserting or alleging that any Development, Manufacture or Commercialization of any Collaboration Product by Freenome or its Affiliates has infringed, misappropriated or otherwise violated, will infringe, misappropriate or otherwise violate, or currently infringes, misappropriates or otherwise violates, any intellectual property rights of such Person. The conception, development and reduction to practice of any of the Freenome Technology have not constituted or involved the misappropriation of trade secrets or other rights or property of any Person. |
| 11.2.15. | Infringement. To Freenome’s Knowledge, (a) the Development, Manufacture or Commercialization of Collaboration Products in the Field in the Territory as contemplated hereunder does not and will not infringe, misappropriate or otherwise violate any intellectual property of any Person, (b) Freenome has disclosed to Exact any pending patent applications of any Person other than Freenome or its Affiliates that, if issued with the published or currently pending claims, would be infringed by any such activities, and (c) except for those disclosed by Freenome as described in clause (b), there are no pending patent applications of any Person other than Freenome or its Affiliates that, if issued with the published or currently pending claims, would be infringed by any such activities. |
| 11.2.16. | Infringement of Freenome Technology. To Freenome’s Knowledge, no Person is infringing, misappropriating or otherwise violating, or threatening to infringe, misappropriate or otherwise violate, the Freenome Technology. Neither Freenome nor any of its Affiliates has made a claim against any Person alleging that such Person is infringing, misappropriating or otherwise violating, or has infringed, misappropriated or otherwise violated, any Freenome Technology. To Freenome’s Knowledge, no Person has or will have a claim or interest in or to any Freenome Technology by virtue of the use of any data sourced from such Person in connection with this Agreement. |
| 11.2.17. | Confidentiality of Trade Secrets. Freenome and each of its Affiliates has taken, and will continue to take during the Term, commercially reasonable measures consistent with industry practices to protect the secrecy, confidentiality and value of all Freenome Know-How that constitutes trade secrets under Applicable Law (including requiring all employees, consultants and independent contractors to execute binding and enforceable agreements requiring all such employees, consultants and independent contractors to maintain the confidentiality of such Freenome Know-How), and such Freenome Know-How has not been, and during the Term will not be, used or disclosed to any Person except pursuant to confidentiality agreements imposing obligations of confidentiality, non-disclosure, and non-use at least as restrictive or protective of the Parties as those set forth in this Agreement. To Freenome’s Knowledge, there has not been a breach by any party to such confidentiality agreements. |
| 11.2.18. | Existing Upstream Agreements. There are no Third Party agreements pursuant to which Freenome or any of its Affiliates Controls any of the Freenome Technology, other than the Existing Upstream Agreements, true and complete copies of which have been provided to Exact or its representative, and no Person has any rights, title or interests in or to, or any license under, any of the Freenome Technology, other than as provided in such Existing Upstream Agreements. Each Existing Upstream Agreement is in full force and effect, and neither Freenome nor any of its Affiliates has waived any of its rights thereunder. |
| 11.2.19. | No Default. No written notice of material breach, violation, default or termination has been received or given under any Existing Upstream Agreement, and there is no act or omission by Freenome or its Affiliates that would provide a right to terminate, renegotiate, accelerate or materially change any such agreement or terms thereof. Immediately following the Effective Date, Freenome or its Affiliate will continue to be permitted to exercise all of its rights under each such Existing Upstream Agreement to which it is party pursuant to the terms thereof without the payment of any additional amounts of consideration beyond ongoing fees, royalties or payments that Freenome or its Affiliate would otherwise be required to pay in accordance with the terms of such Existing Upstream Agreement had the transactions contemplated by this Agreement not occurred. |
| 11.2.20. | Compliance with Laws. Freenome and its Affiliates have conducted, and to Freenome’s Knowledge their respective contractors and consultants have conducted, the Exploitation of Collaboration Products in compliance with all Applicable Laws, including as applicable FDA Laws, CLIA, conditions of participation, state laws relating to the operation of clinical laboratories, anti-corruption or anti-bribery laws or regulations of any Governmental Authority with jurisdiction over such Exploitation and standards of applicable accrediting bodies, as well as in good scientific manner appropriate for scientific, regulatory and intellectual property purposes and in a manner that fully and accurately reflects all work done and results achieved in the performance of Development activities conducted by or on behalf of Freenome or its Affiliates with respect to the Collaboration Products. In the past [***] years, neither Freenome nor any of its Affiliates has received any written notice, order, complaint or other communication from any Governmental Authority or any other Person alleging that Freenome or its Affiliate is not in compliance with any Applicable Laws, conditions of participation or accreditation standards in each case related to the Exploitation of the Collaboration Products, and no investigation by any Governmental Authority regarding a violation of any such Applicable Laws is pending or, to Freenome’s Knowledge, threatened. |
| 11.2.21. | No Other Programs. Neither Freenome nor any of its Affiliates is Developing or otherwise Controls any in vitro, blood-based product or service for the diagnosis, screening or evaluation of colorectal cancer or colorectal pre-cancer (e.g., advanced adenoma) (including any LDT), other than the Existing CRC Product or any product that would be a Collaboration Product hereunder. |
| 11.2.22. | Regulatory Submissions and Study Reports. Freenome or its Affiliates Control all Regulatory Submissions in the Field in the Territory related to the Existing CRC Product, and to Freenome’s Knowledge, Freenome or its Affiliates Control all study reports and underlying data from any Clinical Trials conducted by or on behalf of Freenome or its Affiliates with respect to the Existing CRC Product. |
| 11.2.23. | Data Privacy. The Processing of Personal Data by Freenome, its Affiliates and, to Freenome’s Knowledge, its and their contractors, consultants and collaborators (including any transfer of Personal Data across national borders) in connection with the Collaboration Products is and has been in compliance with Data Protection Laws in all countries and jurisdictions, all privacy related consents and notices that apply to Collaboration Products and the requirements of any contract or codes of conduct to which Freenome or its Affiliate is a party (collectively, the “Privacy and Security Obligations”). Freenome has provided all necessary privacy notices related to research participants and has an appropriate legal basis under Data Protection Laws to Process all Personal Data in connection with the Collaboration Products. Freenome has developed, implemented and maintains a compliance program, policies and procedures and training programs to ensure ongoing compliance with the Privacy and Security Obligations. Freenome has commercially reasonable physical, technical, organizational and administrative measures and policies in place designed to protect all Personal Data collected by it or on its behalf from and against unauthorized Processing. Freenome is and has complied in all material respects with all Privacy and Security Obligations relating to data breach reporting and notification obligations. In the last [***] years, neither Freenome nor any of its Affiliates has received written notice of any alleged material violation from a Regulatory Authority or other Person of any Privacy and Security Obligations and has no Knowledge of facts that would give rise to such a violation. Freenome is not under investigation by any Regulatory Authority for a violation of Data Protection Laws. Without limiting the foregoing, all informed consent forms for any of Freenome’s or its Affiliates’ past and ongoing Clinical Trials for any Collaboration Product permit the transfer to Exact as contemplated under this Agreement, and use and other Exploitation by Exact as contemplated under this Agreement, of clinical data and samples collected or otherwise generated in such Clinical Trial. |
| 11.2.24. | No Fraudulent Statements. Neither Freenome nor its Affiliates, nor, to Freenome’s Knowledge, any of its or their respective directors, officers, employees or agents has (a) committed an act, (b) made a statement or (c) failed to act or make statement, in each case ((a), (b) or (c)), that (i) would be or created an untrue statement of material fact or fraudulent statement to the FDA or any other Regulatory Authority with respect to the Development and Manufacture of the Collaboration Products or (ii) could reasonably be expected to provide a basis for the FDA or any other Regulatory Authority to invoke its policy respecting “Fraud, Untrue Statements of Material Facts, Bribery and Illegal Gratuities”, set forth in 56 Fed. Reg. 46191 (September 10, 1991) and any amendments thereto or any analogous laws or policies, with respect to the Development and Manufacture of the Collaboration Products. |
| 11.2.25. | Sufficient Capitalization. Freenome’s business plans (including any plans to raise and close an equity financing) provide for sufficient capitalization over time to (a) perform all of its obligations pursuant to this Agreement, and (b) meet all of its obligations that come due in the ordinary course of business. |
| 11.2.26. | Disclosure. Freenome has provided Exact with the opportunity to review all written material information or data in Freenome’s or its Affiliates’ possession or control relating to the subject matter of this Agreement and such written material information or data is true, correct and complete in all material respects. Freenome has not intentionally concealed from Exact any such material information or data and has not withheld any material information related to the Freenome Technology, the Existing CRC Product or any other Collaboration Product, in each case, that was requested by Exact in writing. |
| 11.3. | Certain Covenants. |
| 11.3.1. | Compliance. Subject to the terms and conditions of this Agreement, each Party, its Affiliates and its and their Sublicensees and Subcontractors will conduct the Exploitation of Collaboration Products and MCED Products, as applicable, in a good scientific manner and materially in accordance with all Applicable Laws, including, as applicable, the FDA Laws or regulations of any Governmental Authority with jurisdiction over the activities performed in the Territory by or on behalf of a Party, its Affiliates or its or their Sublicensees or Subcontractors in furtherance of such obligations. For the avoidance of doubt, Applicable Laws include, without limitation, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Eliminating Kickbacks in Recovery Act (18 U.S.C. § 220), and any applicable state laws relating to anti-kickback, fee-splitting, direct billing, or anti-markup prohibitions, as applicable. In addition, if a Party is or becomes subject to a legal obligation to a Governmental Authority in the Territory (such as a corporate integrity agreement or settlement agreement with a Governmental Authority), then the other Party will perform such activities as may be reasonably requested by the obligated Party to enable such Party to comply with its legal obligation to such Governmental Authority with respect to Collaboration Products or MCED Products, as applicable, in accordance with this Agreement. |
| 11.3.2. | Control. Freenome will retain Control during the Term of all Patent Rights and Know-How owned or Controlled by Freenome or its Affiliates as of the Effective Date that are (a) necessary to Develop, Manufacture, Commercialize or otherwise Exploit the Collaboration Products in the Field in the Territory or (b) reasonably useful to Exploit the Collaboration Products in the Field in the Territory. |
| 11.3.3. | Compliance with Upstream Agreements. Freenome will, and will cause its Affiliates as applicable to, remain in compliance with the Upstream Agreements, and it will not, without Exact’s written consent, terminate or amend any Upstream Agreement in a manner that adversely affects the rights granted or purported to be granted to Exact hereunder, including the licenses granted to Exact by Freenome pursuant to Section 7.1 (License Grants to Exact), or Freenome’s ability to perform its obligations hereunder. In addition, Freenome may not amend any Upstream Agreement in any manner that increases Exact’s payment obligations under this Agreement. Freenome will provide prompt notice to Exact of any notice of termination under any Upstream Agreement. In addition, Freenome will provide prompt notice to Exact of any alleged material default, violation or default or request for amendment of any Upstream Agreement that would adversely affect the rights granted or purported to be granted to Exact hereunder, increase Exact’s payment obligations hereunder, or adversely affect Freenome’s ability to perform its obligations hereunder or any Upstream Agreement. Upon prior written notice to Freenome, Exact may remedy any such alleged material breach, violation or default of Freenome under any Upstream Agreement, including by making one or more payments to the counterparty to such Upstream Agreement, but only as such payment pertains to the Freenome Technology licensed to Exact hereunder, and if Exact makes any such payments, then Exact may credit the full amount of such payments against any Development Milestone Payments, Royalties or other amounts payable to Freenome under this Agreement. |
| 11.3.4. | No Conflicts. Freenome will not, and cause its Affiliates to not, enter into any agreement with any Person that is in conflict with the rights granted or purported to be granted to Exact under this Agreement or that would conflict with or encumber Freenome’s ability to perform its obligations hereunder; and will not take any action or fail to take any action, and will cause its Affiliates to not take any action or fail to take any action, that would (a) prevent it from granting the rights granted or purported to be granted to Exact under this Agreement, (b) conflict with or encumber its ability to perform its obligations hereunder, or (c) otherwise materially conflict with or adversely affect the rights granted or purported to be granted to Exact under this Agreement, including the granting of any security interest or other encumbrance on the Freenome Technology. |
| 11.3.5. | Assignment. Upon Exact’s request, Freenome or its Affiliates will obtain, unless impracticable, from each employee and independent contractor who participated in the invention or authorship of any Freenome Technology, assignments of all ownership rights of such employees and independent contractors in such Freenome Technology pursuant to written agreement. |
| 11.5. | Disclosure Letter. At any one time prior to the Outside Date or Antitrust Clearance Date (whichever is earlier), [***]. |
| 11.6. | Warranty Disclaimer. |
| 11.6.1. | EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY WITH RESPECT TO ANY PATENTS, KNOW-HOW, MATERIALS, PRODUCT, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING. |
| 11.6.2. | EACH PARTY EXPRESSLY ACKNOWLEDGES AND AGREES THAT, DESPITE THE EFFORTS AND OBLIGATIONS REQUIRED BY THIS AGREEMENT WHICH MAY RESULT IN THE ACHIEVEMENT OF A DEVELOPMENT MILESTONE EVENT OR NET SALES OF COLLABORATION PRODUCT, SUCH EVENT OR NET SALES OF COLLABORATION PRODUCT MAY NOT BE ACHIEVED AND FREENOME, IN THAT CASE, WOULD NOT BE ENTITLED TO RECEIVE SUCH FURTHER PAYMENTS HEREUNDER. ANY DEVELOPMENT MILESTONE PAYMENT OR ROYALTIES ARE CONTINGENT UPON SATISFACTION OF THE CONDITIONS PROVIDED FOR HEREIN, WHICH MAY NOT BE SATISFIED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN (BUT WITHOUT WAIVING THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING), EXACT WILL BE UNDER NO OBLIGATION TO USE ITS COMMERCIALLY REASONABLE EFFORTS, BEST EFFORTS OR ANY OTHER STANDARD OF DILIGENCE WITH RESPECT TO SATISFYING THE CONDITIONS TO ANY PAYMENT HEREUNDER. |
Article 12
Indemnification; Limitation of Liability; Insurance
| (a) | any breach of, or inaccuracy in, any representation or warranty made by Freenome in this Agreement, or any breach or violation of any covenant or agreement of Freenome in this Agreement; |
| (b) | the gross negligence, willful misconduct or fraud of Freenome, its Affiliates, its or their Sublicensees or its or their respective directors, officers, employees, agents or representatives in the performance of Freenome’s obligations under this Agreement; or |
| (c) | the Development, Manufacture, Commercialization or Exploitation of any Collaboration Product or MCED Product by or on behalf of Freenome or any of its Affiliates or Sublicensees. |
Notwithstanding the foregoing, Freenome will have no obligation to indemnify the Exact Indemnitees to the extent that the Losses arise out of or result from matters described under Section 12.2 (Indemnification by Exact).
| (a) | any breach of, or inaccuracy in, any representation or warranty made by Exact in this Agreement, or any breach or violation of any covenant or agreement of Exact in this Agreement; |
| (b) | the gross negligence, willful misconduct or fraud of Exact, its Affiliates, its Sublicensees or its or their respective directors, officers, employees, agents or representatives in the performance of Exact’s obligations or exercise of its rights under this Agreement; or |
| (c) | the Development, Manufacture, Commercialization or Exploitation of any Collaboration Product by or on behalf of Exact or any of its Affiliates or Sublicensees (in each case other than by Freenome or its Affiliates). |
Notwithstanding the foregoing, Exact will have no obligation to indemnify the Freenome Indemnitees to the extent that the Losses arise out of or result from matters described under Section 12.1 (Indemnification by Freenome).
| 12.3. | Indemnification Procedure. |
| 12.3.1. | Notice. The Party entitled to indemnification under this Article 12 (Indemnification; Limitation of Liability; Insurance) (an “Indemnified Party”) will notify the Party responsible for such indemnification (the “Indemnifying Party”) in writing promptly upon being notified of or having knowledge of any Claim asserted or threatened against the Indemnified Party that could give rise to a right of indemnification under this Agreement; provided that the failure to give such notice will not relieve the Indemnifying Party of its indemnity obligation hereunder except to the extent that such failure materially prejudices the Indemnifying Party. |
| 12.3.2. | Indemnifying Party’s Right to Defend. The Indemnifying Party will defend, at its sole cost and expense, any such Claim by all appropriate proceedings; provided that the Indemnifying Party may not enter into any compromise or settlement unless (a) such compromise or settlement imposes only a monetary obligation on the Indemnifying Party and which includes as an unconditional term thereof the giving by each claimant or plaintiff of the Indemnified Party a release from all liability in respect of such claim; or (b) the Indemnified Party consents to such compromise or settlement, which consent will not be unreasonably withheld unless such compromise or settlement involves or requires (i) any admission of legal wrongdoing by the Indemnified Party, (ii) any payment by the Indemnified Party that is not indemnified under this Agreement, (iii) the imposition of any equitable relief against the Indemnified Party or (iv) the admission of invalidity of any Patent Right controlled by the Indemnified Party (in which case, (i) through (iv), the Indemnified Party may withhold its consent to such settlement in its sole discretion). |
| 12.3.3. | Indemnified Party’s Right to Defend. If the Indemnifying Party does not assume control of the defense of a Claim, then the Indemnified Party will have the right, at the expense of the Indemnifying Party, upon at least [***] Business Days’ prior written notice to the Indemnifying Party of its intent to do so, to undertake the defense of such Claim for the account of the Indemnifying Party (with counsel reasonably selected by the Indemnified Party); provided that the Indemnified Party will keep the Indemnifying Party apprised of all material developments with respect to such Claim. The Indemnified Party may not enter into any compromise or settlement without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed. |
| 12.3.4. | Cooperation. The Indemnified Party will cooperate with the Indemnifying Party and may participate in, but not control, any defense or settlement of any Claim controlled by the Indemnifying Party pursuant to this Section 12.3 (Indemnification Procedure) and will bear its own costs and expenses with respect to such participation; provided that the Indemnifying Party will bear such costs and expenses if counsel for the Indemnifying Party reasonably determines that such counsel may not properly represent both the Indemnifying Party and the Indemnified Party. |
Article 13
Term and Termination
| (a) | any material FDA safety-related communication or alert is issued for any Collaboration Product; |
| (b) | a Collaboration Product meeting or within the applicable Confidence Interval of the V1 Collaboration Product Standards has not received, as of [***], First-Line FDA Approval for the Target Population; |
| (c) | the JSC has not determined that a Laboratory Technology Transfer Completion has occurred, as of [***], with respect to a Collaboration Product meeting at least [***] Specificity, [***] Sensitivity for colorectal cancer and [***] Sensitivity for advanced adenoma; |
| (d) | a second Collaboration Product has not received, as of [***], First-Line FDA Approval for the Target Population; |
| (e) | Development Milestone Event #3 (as set forth in Table 8.2.1 (Development Milestone Payments; General)) has not occurred as of [***]; or |
| (f) | the Gross Margin for any Collaboration Product has not attained or exceeded [***] as of [***]. |
| 13.3.1. | Exact and its Affiliates cease all Commercialization activities for all [***], provided that Exact will have an opportunity to cure such inactivity or dispute such inactivity as if such inactivity were a material breach in accordance with the terms and conditions of Section 13.6 (Termination for Material Breach), applied mutatis mutandis. |
| 13.3.2. | Exact or any of its Affiliates engages in (or causes or directs any Third Party to engage in) any Patent Challenge with respect to any Freenome Patent Right in the Field in the Territory; provided that with respect to any Patent Challenge by any Affiliate, Freenome will not have the right to terminate this Agreement under this Section 13.3.2 (Freenome Termination upon Specific Events) if, within [***] days after Freenome’s notice to Exact, Exact causes such Patent Challenge to be terminated or dismissed; and provided, further, that this Section 13.3.2 (Freenome Termination upon Specific Events) will not apply to, and Freenome may not terminate this Agreement (and Exact shall have no liability) with respect to [***]. |
| 13.3.3. | [***] |
| 13.5.1. | Section 365(n). All rights and licenses granted under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of Section 365(n) of Title 11 of the United States Code and other similar laws in any jurisdiction outside the U.S. (collectively, the “Bankruptcy Laws”), licenses of rights to “intellectual property” as defined under the Bankruptcy Laws. If a case is commenced during the Term by or against a Party under Bankruptcy Laws then, unless and until this Agreement is rejected as provided pursuant to such Bankruptcy Laws, such Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee) will perform all the obligations in this Agreement intended to be performed by such Party. If a case is commenced during the Term by or against a Party under the Bankruptcy Laws, this Agreement is rejected as provided for under the Bankruptcy Laws, and the other Party elects to retain its rights hereunder as provided for under the Bankruptcy Laws, then the bankrupt Party (in any capacity, including debtor-in-possession) and its successors and assigns (including a Title 11 trustee), will provide to the non-bankrupt Party copies of all Patent Rights, Know-How and intellectual property necessary for the non-bankrupt Party to prosecute, maintain and enjoy its rights under the terms of this Agreement. All rights, powers and remedies of the non-bankrupt Party as provided herein are in addition to and not in substitution for all other rights, powers and remedies now or hereafter existing at law or in equity (including the Bankruptcy Laws) in the event of the commencement of a case by or against the bankrupt Party under the Bankruptcy Laws. In particular, it is the intention and understanding of the Parties to this Agreement that the rights granted to each Party under this Section 13.5 (Termination for Bankruptcy) are essential to such Party’s respective businesses and the Parties acknowledge that damages are not an adequate remedy in the event of any termination described in this Section 13.5 (Termination for Bankruptcy). |
| 13.5.2. | Cumulative Remedies. All rights, powers and remedies of each Party provided in this Section 13.5 (Termination for Bankruptcy) are in addition to and not in substitution for any other rights, powers and remedies now or hereafter existing at law or in equity (including the U.S. Bankruptcy Code) in the event of the commencement of a case under the U.S. Bankruptcy Code with respect the other Party. The Parties intend the following rights to extend to the maximum extent permitted by Applicable Law, and to be enforceable under U.S. Bankruptcy Code Section 365(n): |
| (a) | the right of access to any intellectual property rights (and all embodiments thereof) of a Party, or any Third Party with whom a Party contracts to perform any obligation of it (or its Affiliates) under this Agreement; and |
| (b) | the right to contract directly with any Third Party to complete the contracted work. |
| 13.6. | Termination for Material Breach. |
| 13.6.1. | By Exact. Exact may terminate this Agreement in its entirety if Freenome or any of its Affiliates has materially breached this Agreement, subject to the notice, Cure Period and dispute resolution procedures set forth in this Section 13.6 (Termination for Material Breach). |
| 13.6.2. | By Freenome. Freenome may terminate this Agreement (a) with respect to one or more Collaboration Products if Exact or any of its Affiliates has materially breached this Agreement with respect to such Collaboration Product or (b) in its entirety in the event Exact or its Affiliate has materially breached this Agreement as a whole or with respect to all Collaboration Products, in each case of the foregoing ((a) and (b)) subject to the notice, Cure Period and dispute resolution procedures set forth in this Section 13.6 (Termination for Material Breach). |
| 13.6.3. | Process for Termination. If a Party (the “Breaching Party”) materially breaches this Agreement, then the other Party (the “Non-Breaching Party”) may give written notice to the Breaching Party identifying such alleged material breach in sufficient detail to put the Breaching Party on notice of such material breach, and to give the Breaching Party the opportunity to cure such material breach within [***] days after delivery of such notice (the “Cure Period”). Any termination of this Agreement pursuant to this Section 13.6.3 (Process for Termination) will become effective at the end of the Cure Period, unless the Breaching Party has cured any such material breach prior to the expiration of such Cure Period or, if such material breach is not susceptible to cure within the Cure Period, then the Cure Period will be extended so long as (i) the Breaching Party has provided to the Non-Breaching Party a written plan that is reasonably calculated to effect a cure of such material breach within the original Cure Period, (ii) such plan is accepted by the Non-Breaching Party (such acceptance not to be unreasonably withheld, conditioned or delayed), and (iii) the Breaching Party commits to and diligently carries out such plan as provided to the Non-Breaching Party, provided that, in no event will the Cure Period be extended to more than a total of [***] days. The right of either Party to terminate this Agreement as provided in this Section 13.6.3 (Process for Termination) will not be affected in any way by such Party’s waiver of or failure to take action with respect to any previous breach under this Agreement. |
| 13.6.4. | Disputes Regarding Material Breach. If the Parties reasonably and in good faith disagree as to whether there has been a material breach of this Agreement, then the Breaching Party that disputes whether there has been a material breach may contest the allegation in accordance with Section 15.3 (Dispute Resolution), and the Cure Period will toll upon the initiation of such dispute resolution procedures. If, as a result of such dispute resolution process, it is determined pursuant to Section 15.3 (Dispute Resolution) that the Breaching Party committed a material breach of this Agreement, then the Cure Period will resume and if the Breaching Party does not cure such material breach within the remainder of the Cure Period (as such Cure Period may be extended pursuant to Section 13.6.3 (Process for Termination) above), then this Agreement will terminate effective as of the expiration of such Cure Period. This Agreement will remain in full force and effect during the pendency of any such dispute resolution proceeding and the Cure Period. Any such dispute resolution proceeding will not suspend any obligations of either Party hereunder, and each Party will use reasonable efforts to mitigate any damage. Any payments that are made by one Party to the other Party pursuant to this Agreement pending resolution of the Dispute will be promptly refunded if it is determined pursuant to Section 15.3 (Dispute Resolution) that such payments are to be refunded by one Party to the other Party. If, as a result of such dispute resolution proceeding, it is determined that the Breaching Party did not commit such material breach (or such material breach was cured in accordance with this Section 13.6 (Termination for Material Breach)), then no termination of this Agreement will be effective, and this Agreement will continue in full force and effect. |
| 13.7.1. | Termination of Licenses. As of the effective date of termination of this Agreement, all licenses granted under Section 7.1 (License Grants to Exact) and Section 7.2(b) (License Grant to Freenome) with respect to the Terminated Products will terminate, and all sublicenses granted by a Party or its Affiliates pursuant to Section 7.4 (Sublicensing Terms) with respect to the Terminated Products will also terminate. |
| 13.7.2. | Sublicensees. Upon the request of any Sublicensee of Exact that is not an Affiliate or Subcontractor of Exact and is not then in breach of its sublicense agreement or the terms of this Agreement applicable to such Sublicensee, Freenome will enter into a direct license with such Sublicensee on the same terms as this Agreement, taking into account any difference in license scope, territory and duration of sublicense grant (each, a “New License Agreement”). [***]. |
| 13.7.3. | Return of Confidential Information. Upon the expiration or termination of this Agreement with respect to a Terminated Product, the Receiving Party will return or destroy (the option being the Receiving Party’s) all Confidential Information of the Disclosing Party related to such Terminated Product, as applicable, that is in the Receiving Party’s possession or control, except that the Receiving Party will have the right to retain a copy of tangible Confidential Information of the Disclosing Party for legal archival purposes. |
| 13.7.4. | Termination of Payment Obligations. All payment obligations hereunder will terminate, other than those that are accrued and unpaid as of the effective date of such termination, except that notwithstanding anything herein to the contrary, Development Milestone Payments will not accrue if achieved as of or after the date of notice of any termination under this Agreement. |
| 13.7.5. | Inventory and Laboratory Services. Exact will have the right to sell or otherwise dispose of Terminated Products on hand at the time of such termination or in the process of Manufacturing, and finish completion of laboratory services for Terminated Products submitted to Exact prior to the effective date of termination. |
| 13.7.6. | License to Exact-Funded Technology. As of the effective date of any termination of this Agreement, Freenome hereby grants to Exact a non-exclusive, worldwide, fully paid up, royalty free, perpetual, irrevocable, sublicensable (in multiple-tiers), transferable right and license to use and practice the Exact-Funded Technology for any and all purposes. |
| 13.7.7. | Wind Down; Transition Support. The Parties will promptly wind down and terminate all activities under the Development Plan as promptly as possible after notice of termination. Notwithstanding the foregoing, in the event of any termination of this Agreement by Exact following first achievement of First-Line FDA Approval pursuant to Section 13.2 (Exact Termination upon Specific Events) or Section 13.4 (Termination for Convenience) or by Freenome pursuant to Section 13.3 (Freenome Termination upon Specific Events), Section 13.5 (Termination for Bankruptcy) or Section 13.6 (Termination for Material Breach), upon written request from Freenome to Exact provided no later than [***] days following the effective date of termination, unless prohibited by Applicable Law, [***] such period not to exceed [***] months from the effective date of the termination. |
| 13.8.1. | Exact may retain all of its licenses and other rights granted under this Agreement, subject to all of its payment and other obligations, provided that (a) any then-unearned Development Milestone Payments payable thereafter under this Agreement will be reduced by [***] effective from and after the delivery of the applicable notice of breach, (b) all Royalty rates will be reduced by [***] effective from and after the delivery of the applicable notice of breach, and (c) Exact’s obligations under Section 5.3 (Diligence Obligations) will terminate; and |
| 13.8.2. | any Confidential Information of Exact provided to Freenome pursuant to this Agreement will be promptly returned to Exact or destroyed, and Exact will be released from its ongoing disclosure and information exchange obligations with respect to Development and Commercialization following the date of such election. |
For the avoidance of doubt, except as set forth in this Section 13.8 (Alternative Remedy in Lieu of Termination), if Exact exercises the alternative remedy set forth above in this Section 13.8 (Alternate Remedy in Lieu of Termination), then all rights and obligations of both Parties under this Agreement will continue unaffected, unless and until this Agreement is subsequently terminated by either Party pursuant to this Article 13 (Term and Termination). In addition, and notwithstanding anything to the contrary set forth in this Agreement, if Freenome disputes the allegation of a material breach pursuant to Section 13.6.4 (Disputes Regarding Material Breach), and it is determined, as a result of the dispute resolution process set forth in Section 15.3 (Dispute Resolution), that Exact has the right to terminate this Agreement pursuant to Section 13.6 (Termination for Material Breach) based on the uncured material breach by Freenome or pursuant to Section 13.5 (Termination for Bankruptcy), then the adjustments of Development Milestone Payments contemplated by this Section 13.8 (Alternative Remedy in Lieu of Termination) will be deemed effective since the date of notice of the applicable material breach, and Exact will have the right to credit any overpayment that has been made during the dispute resolution process against future payments payable to Freenome.
Article 14
ANTITRUST CLEARANCE; COOPERATION AND EFFORTS
| 14.3. | Cooperation. |
| 14.3.1. | General. Each of the Parties will use commercially reasonable efforts, and cooperate with the other Party, to obtain the HSR Conditions for this Agreement as promptly as reasonably practicable, and will keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the U.S. Federal Trade Commission, the U.S. Department of Justice, or any other Governmental Authority (“Antitrust Agency”) related to this Agreement in connection with antitrust matters. The Parties will instruct their respective counsel to coordinate and cooperate with each other to facilitate and expedite the identification and resolution of any such issues and, consequently, the expiration of the applicable HSR Act waiting period as early as reasonably practicable. In the context of this Section 14.3 (Cooperation), commercially reasonable efforts include counsel’s undertaking: (a) to reasonably keep each other informed of communications received from and submitted to personnel of an Antitrust Agency relating to this Agreement, including by furnishing to the other Party’s counsel such necessary information and reasonable assistance as such Party may reasonably request in connection with its preparation of any filing or submission that is necessary under the HSR Act and promptly furnishing an Antitrust Agency any information requested in connection with such filings (subject to reasonable redactions for privilege and confidentiality concerns); (b) to confer with each other regarding appropriate contacts with, and response to, personnel of any Antitrust Agency and consider in good faith the views of the other Party, allowing the other Party to review any proposed material written communications in advance and including all reasonable additions, deletions or changes suggested by the other Party; (c) to not agree to participate in any substantive meeting or discussion with any Antitrust Agency in respect of any filings, investigation or inquiry concerning this Agreement unless such Party consults with the other Party in advance and, to the extent permitted by such Antitrust Agency, gives the other Party the opportunity to attend and participate thereat. Without limitation to the foregoing, Exact shall control and lead (with prior notice to and consultation of Freenome, and taking Freenome’s views into account in good faith) all communications and strategy relating to any process under the HSR Act or any Antitrust Laws and with respect to any other approval required from a Governmental Authority under any Applicable Law for the transaction contemplated by this Agreement. |
| 14.3.2. | Each Party will be responsible for its own costs and expenses (including costs and expenses of its own legal and other advice) in relation to the Required Filings and satisfaction of the HSR Conditions (other than Exact’s payment of Freenome’s filing fees under the HSR Act). |
| 14.3.3. | Each Party will use commercially reasonable efforts to take such actions as may be required under any Antitrust Laws in order to satisfy the HSR Conditions. Notwithstanding anything to the contrary in this Agreement, the term “commercially reasonable efforts” does not require each Party to: (a) offer, negotiate, commit to or effect, by consent decree, hold separate order, trust or otherwise, the sale, divestiture, license or other disposition of any capital stock, assets, rights, products or businesses of such Party or its Affiliates, (b) agree to any restrictions on, or changes to, the activities of such Party or its Affiliates under this Agreement, (c) pay any material amount or take any other action to prevent, effect the dissolution of, vacate, or lift any decree, order, judgment, injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the effect of preventing or delaying the Antitrust Clearance Date, or (d) litigate or contest, administratively or in court, any ruling, order, or other action by any Antitrust Agency. |
| 14.3.4. | Exact shall not, and shall cause its respective subsidiaries not to, acquire or agree to acquire, by merging with or into or consolidating with, any Third Party corporation, partnership, association or other business organization or division thereof that is developing or maintaining a CRC Blood Product that is not otherwise Controlled by Exact as of the Effective Date, in each case, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger, or consolidation would reasonably be expected to impose any material delay in the obtaining of, or materially increase the risk of not obtaining the HSR Conditions for this Agreement. |
| 15.3. | Dispute Resolution. |
| 15.3.1. | Exclusive Dispute Resolution Mechanism. The Parties agree that, except as expressly set forth in this Agreement (including under Section 2.4.2 (Final Decision-Making Authority)), the procedures set forth in this Section 15.3 (Dispute Resolution) will be the exclusive mechanism for resolving any dispute, controversy or claim between the Parties arising out of or relating to this Agreement (whether based on contract, tort or otherwise) (each, a “Dispute”). |
| 15.3.2. | Resolution by Executive Officers. Except as otherwise provided in this Section 15.3.2 (Resolution by Executive Officers) or as provided in Section 15.3.4 (Preliminary Injunctions), in the event of any Dispute, the Parties will first attempt in good faith to resolve such Dispute by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within [***] Business Days, the Dispute will, by written notice from one Party to the other Party, be referred to the Executive Officers of each Party for attempted resolution by good faith negotiation within [***] days after such notice is received. Each Party may, in its sole discretion, seek resolution of any and all Disputes that are not resolved under this Section 15.3.2 (Resolution by Executive Officers) in accordance with Section 15.3.3 (Litigation). |
| 15.3.3. | Litigation. With the exception of legal actions, proceedings or claims described in Section 15.3.4 (Preliminary Injunctions) and Section 15.3.5 (Patent and Trademark Disputes) below, any legal action or proceedings to resolve a Dispute that was subject to and not resolved under Section 15.3.2 (Resolution by Executive Officers) will be brought exclusively in a court of competent jurisdiction, federal or state, located in New York, New York, and in no other jurisdiction. Each Party hereby irrevocably consents to personal jurisdiction and venue in, and irrevocably agrees to service of process issued or authorized by, any such court in any such action or proceeding. The Parties hereby irrevocably waive any objection which they may now have or hereafter have to the laying of venue in the federal or state courts of New York in any such action or proceeding, and hereby irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. The Parties hereby agree that any final judgment rendered by any such federal or state court of New York in any action or proceeding involving any Dispute, from which no appeal can be or is taken, may be enforced by the prevailing Party in any court of competent jurisdiction. THE PARTIES EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY. |
| 15.3.4. | Preliminary Injunctions. Notwithstanding any provision to the contrary set forth in this Agreement, in the event of an actual or threatened breach of a Party’s covenants or obligations under this Agreement, a Party may seek a temporary restraining order or a preliminary injunction from any court of competent jurisdiction in order to prevent immediate and irreparable injury, loss or damage on a provisional basis. |
| 15.3.5. | Patent and Trademark Disputes. Notwithstanding any provision to the contrary set forth in this Agreement, any and all issues regarding the scope, construction, validity and enforceability of any Patent Right or Trademark relating to a Collaboration Product will be determined in a court or other tribunal, as the case may be, of competent jurisdiction under the applicable patent or trademark laws of the country in which such Patent Rights or Trademarks were granted or arose. |
| 15.6. | Headings. The captions to the Sections hereof are not a part of this Agreement, but are merely for convenience to assist in locating and reading the several Sections hereof. |
| If to Freenome, to: |
Freenome Holdings, Inc. Genesis Marina 3300 Marina Boulevard Brisbane, CA 94005 Attention: Chief Executive Officer Email: [***] |
|
With a copy (which will not constitute notice) to: |
Freenome Holdings, Inc. Genesis Marina 3300 Marina Boulevard Brisbane, CA 94005 Attention: Senior Vice President, Legal Email: [***]
Goodwin Procter LLP 601 Marshall St. Redwood City, CA 94063 Attention: Shane Albright Email: salbright@goodwinlaw.com |
| If to Exact, to: |
Exact Sciences Corporation 5505 Endeavor Lane Madison, WI 53719 Attention: [***] Email: [***] |
| With a copy (which will not constitute notice) to: |
Exact Sciences Corporation 5505 Endeavor Lane Madison, WI 53719 Attention: General Counsel Email: [***]
Ropes & Gray LLP Prudential Tower 800 Boylston Street Boston, MA 02199-3600 Attention: Melissa Rones Email: Melissa.Rones@ropesgray.com |
or to such other address as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith. Any such notice will be deemed to have been given: (a) when delivered if personally delivered on a Business Day (or if delivered or sent on a non-Business Day, then on the next Business Day); (b) when sent if sent by email on a Business Day (or if sent on a non-Business Day, then on the next Business Day); (c) on the Business Day of receipt if sent by overnight courier; or (d) on the Business Day of receipt if sent by mail.
[Remainder of page intentionally left blank; signature page follows]
IN WITNESS WHEREOF, the Parties have caused this Collaboration and License Agreement to be executed by their duly authorized representatives as of the Effective Date.
| EXACT SCIENCES CORPORATION | ||
| BY: | /s/ Kevin Conroy | |
| NAME: Kevin Conroy | ||
| TITLE: Chief Executive Officer | ||
| FREENOME HOLDINGS, INC. | ||
| BY: | /s/ Aaron Elliot | |
| NAME: Aaron Elliot | ||
| TITLE: Chief Executive Officer | ||
[Signature Page to Collaboration and License Agreement]
SCHEDULE 1.40
Confidence Interval
[***]
SCHEDULE 1.46
existing crc product
[***]
SCHEDULE 1.95
EXISTING FREENOME PATENT RIGHTS
[***]
SCHEDULE 1.99
EXISTING FREENOME TRADEMARKS
[***]
SCHEDULE 1.102
FTE Rate
[***]
SCHEDULE 1.120
knowledge
[***]
SCHEDULE 1.189
Existing Upstream Agreements
[***]
SCHEDULE 1.192
v1 collaboration product standards
[***]
SCHEDULE 1.194
v2 collaboration product standards
[***]
SCHEDULE 4.7
Right of Reference
[***]
SCHEDULE 5.2
Service Schedule
[***]
SCHEDULE 5.5.2
Billing of THird Parties
[***]
SCHEDULE 11.2
SCHEDULE OF EXCEPTIONS
[***]
Exhibit A
[***]
Exhibit 10.15
THIS NOTE AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES AND MAY NOT BE TRANSFERRED (UNLESS SUCH TRANSFER IS TO AN AFFILIATE) EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREUNDER. OTHER THAN IN CONNECTION WITH A TRANSFER TO AN AFFILIATE, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH TRANSFER COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT BY THE PURCHASER (AS DEFINED BELOW) AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE.
THE TRANSFER OF THIS NOTE AND THE SECURITIES ISSUABLE HEREUNDER ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN NOTE PURCHASE AGREEMENT ENTERED INTO BY THE PURCHASER AND THE COMPANY (AS DEFINED BELOW).
FREENOME HOLDINGS, INC.
SENIOR UNSECURED CONVERTIBLE PROMISSORY NOTE
| $50,000,000 | August 12, 2025 |
For value received, Freenome Holdings, Inc., a Delaware corporation (the “Company”), hereby promises to pay Exact Sciences Corporation or its assignees (the “Purchaser”), the Repayment Amount (as defined below), including the principal amount of Fifty Million Dollars (US $50,000,000) (the “Principal Amount”), together with accrued and unpaid interest thereon, due and payable on the date and in the manner set forth below.
This Senior Unsecured Convertible Promissory Note (this “Note”) is issued pursuant to the Note Purchase Agreement, dated as of August 4, 2025, entered into by the Company and the Purchaser (as the same may from time to time be amended, modified or supplemented or restated, the “Note Purchase Agreement”). Capitalized terms used and not otherwise defined herein shall have the meanings given them in the Note Purchase Agreement.
1. Maturity Date. The Repayment Amount (as defined below) shall become due and payable, on August 12, 2030 (the “Maturity Date”).
2. Interest. This Note shall bear interest at the rate of 5.0% per year from August 12, 2025, or from the most recent date to which interest has been paid through the next scheduled Interest Payment Date. Interest shall be payable quarterly in arrears on the last Business Day of each calendar quarter (each such date, an “Interest Payment Date”), commencing on September 30, 2025. “Business Day” means a calendar day other than a Saturday, Sunday or a bank or other public holiday in San Francisco, California or Madison, Wisconsin.
3. Repayment. The amount payable in satisfaction of this Note, as of any given time, shall be equal to the sum of the (a) then outstanding Principal Amount and (b) then accrued but unpaid interest under this Note ((a) and (b), together, the “Repayment Amount”). Payment shall be made in lawful money of the United States to the Purchaser at such account in the United States as Purchaser shall designate by written notice to the Company.
| 4. | Automatic Conversion Terms. |
(a) Automatic Conversion. In the event that, while this Note remains outstanding, the Company (i) undergoes a Public Listing (as defined below) and (ii) following such Public Listing, the 10-Day VWAP (as defined below) first exceeds a price that is 1.5x the Original Offer Price (as defined below) ((i) and (ii), collectively, the “Automatic Conversion Trigger”), then (A) the Company will promptly notify the Purchaser in writing of the occurrence of the Automatic Conversion Trigger and (B) the Repayment Amount will be automatically converted into shares of common stock of the Company or its corporate successor (the “Successor Company”) at a price per share equal to 1.5x the Original Offer Price (as defined below).
| (b) | Definitions. |
“10-Day VWAP” means, as of a given date, the volume-weighted average sales price per share of common stock of the Company (or its applicable successor entity), taken to four decimal places, on the applicable securities exchange over the 10-consecutive trading day period immediately preceding such date, as calculated by Bloomberg Financial LP under the function “VWAP” (or, if not available, in another authoritative source reasonably selected by the Purchaser).
“Company” means, solely for purposes of Sections 4 and 6 of this Note, (x) Freenome Holdings, Inc., a Delaware corporation, (y) any parent entity of Freenome Holdings, Inc. that undertakes a Public Listing and (z) any subsidiary of the Freenome Holdings, Inc. that undertakes a Public Listing.
“Conversion Stock” means (a) prior to a Public Listing of the Company, the Company’s then most senior series of preferred stock then issued pursuant to a bona fide financing transaction (in right of liquidation preference), whether now or hereafter authorized, and (b) following a Public Listing of the Company, the shares of common stock of the Company or its Successor Company, as applicable.
“Conversion Price” means (a) prior to a Public Listing of the Company, the original issue price per share of the Company’s then most senior series of preferred stock issued pursuant to a bona fide financing transaction (in right of liquidation preference), whether now or hereafter authorized (as such original issue price per share may be adjusted for stock splits, recapitalizations, anti-dilution adjustments and the like for such series of preferred stock), or (b) following a Public Listing of the Company, a price per share equal to 1.5x the Original Offer Price (as defined below).
“Corporate Transaction” means any of the following: (i) the closing of the sale, transfer or other disposition of all or substantially all of the Company’s assets, (ii) the consummation of the merger or consolidation of the Company with or into another entity (except a merger or consolidation in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold over 50% of the voting power of the capital stock of the Company or the surviving or acquiring entity), or (iii) the closing of the transfer (whether by merger, consolidation or otherwise), in one transaction or a series of related transactions, to a Person or group of affiliated Persons (other than an underwriter of the Company’s securities), of the Company’s securities if, after such closing, such Person or group of affiliated Persons would hold more than 50% of the outstanding voting stock of the Company (or the surviving or acquiring entity). Notwithstanding the prior sentence, (A) a transaction shall not constitute a Corporate Transaction if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the Persons who held the Company’s securities immediately prior to such transaction; (B) the sale of shares of preferred stock in a bona fide financing transaction shall not be deemed a “Corporate Transaction” and (c) a SPAC Transaction shall not be deemed a “Corporate Transaction.”
“Original Offer Price” means (i) in the event of a Public Listing where shares of common stock of the Company are sold to the public, the purchase price per share of the common stock sold to the public or (ii) otherwise (e.g., in connection with a SPAC Transaction), the price per share determined for the common stock of the Company or its applicable successor entity in connection with the Public Listing, which in the case of a SPAC Transaction shall be the price per share for common stock of the Company sold in a concurrent financing transaction.
“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
“Public Listing” means (i) the closing of the issuance and sale of capital stock of the Company in the Company’s underwritten initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended or (ii) any other transaction (A) that is not a Corporate Transaction and (B) as a result of which a class of shares of the Company or any successor entity is registered under the Securities Exchange Act of 1934, as amended, including a SPAC Transaction.
“SPAC Transaction” means a transaction or a series of related transactions by merger, consolidation, share exchange or otherwise of the Company with a publicly traded “special purpose acquisition company” or its subsidiary (collectively, a “SPAC”), immediately following the consummation of which the common stock or share capital of the SPAC or its successor entity is listed on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace.
5. Prepayment. At any time following a Public Listing of the Company, while this Note remains outstanding, the Company may deliver a written notice to the Purchaser electing to prepay this Note in its entirety (such notice, the “Prepayment Notice”). Any such notice must be given at least 15 days in advance of the proposed date of prepayment. If the Purchaser has not exercised its Optional Conversion Right (as defined below) within 15 days following its receipt of the Prepayment Notice, then the Company may pay the Repayment Amount to the Purchaser in its entirety promptly following the end of such 15-day period. Except as set forth in this Section 5, the Repayment Amount may not be prepaid by the Company at any time, in whole or in part, without the prior written consent of the Purchaser.
6. Optional Conversion by Purchaser. At any time while this Note remains outstanding, the Purchaser may elect, by providing written notice thereof to the Company, to receive, in full satisfaction of the Company’s obligations under this Note, that number of shares of applicable Conversion Stock obtained by dividing (i) the Repayment Amount by (ii) the applicable Conversion Price, rounded down to the nearest whole share (such right of the Purchaser, the “Optional Conversion Right”).
7. Mechanics of Conversion. Upon conversion of this Note pursuant to the terms hereof, the Purchaser shall surrender this Note, duly endorsed, at the principal offices of the Company or any transfer agent of the Company. At its expense, the Company will, as soon as practicable thereafter, issue and deliver to the Purchaser, at such principal office, a certificate or certificates for the number of shares to which the Purchaser is entitled upon such conversion. Upon conversion of this Note pursuant to the terms of this Note, the Company will be forever released from all of its obligations and liabilities under this Note with regard to that portion of the Repayment Amount being converted, including without limitation the obligation to pay such portion of the Repayment Amount.
8. Termination of Rights. All rights with respect to this Note shall terminate upon a payment or conversion in full of this Note pursuant to Sections 1, 4, 5 or 6 above, whether or not this Note has been surrendered.
9. Default. Each of the following events shall be an “Event of Default” hereunder:
9.1 The Company fails to timely pay any of the Repayment Amount due hereunder for more than thirty (30) days after the date that it becomes due and payable;
9.2 The Company or any of its subsidiaries executes a general assignment for the benefit of creditors;
9.3 The Company or any of its subsidiaries files a petition or action for relief under any bankruptcy, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing; and
9.4 An involuntary petition is filed against the Company or any of its subsidiaries (unless such petition is dismissed or discharged within 30 days of the filing thereof) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company or any of its subsidiaries.
Subject to the provisions hereof, the Purchaser shall have all rights and may exercise any remedies available to it under law, successively or concurrently. If an Event of Default occurs, the Purchaser may, by notice in writing to the Company, accelerate the Maturity Date and declare this Note to be in default and the Repayment Amount to be immediately due and payable in full, whereupon the Notes shall be repaid in cash.
10. Fractional Shares. No fractional shares shall be issued upon conversion of this Note. In lieu of fractional shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the price per share of such securities issued to Purchaser upon such conversion.
11. No Impairment. Except and to the extent as waived or consented to by the Purchaser in accordance with Section 15 below, the Company will not, by amendment of its certificate of incorporation or bylaws or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of any debt or equity securities (or any securities convertible into, or exercisable or exchangeable for, such securities) or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Note in order to protect the rights of the Purchaser hereunder against impairment.
12. Highest Lawful Rate. Anything herein to the contrary notwithstanding, if, during any period for which interest is computed hereunder, the amount of interest computed on the basis provided for in this Note, together with all fees, charges, and other payments or rights which are treated as interest under applicable law, as provided for herein or in any other document executed in connection herewith, would exceed the amount of such interest computed on the basis of the Highest Lawful Rate (as defined below), the Company shall not be obligated to pay, and the Purchaser shall not be entitled to charge, collect, receive, reserve, or take, interest in excess of the Highest Lawful Rate, and during any such period the interest payable hereunder shall be computed on the basis of the Highest Lawful Rate. “Highest Lawful Rate” means the maximum non-usurious rate of interest, as in effect from time to time, which may be charged, contracted for, reserved, received, or collected by the Purchaser in connection with this Note under applicable law. In accordance with this Section 12, any amounts received in excess of the Highest Lawful Rate shall be applied towards the prepayment of the Principal Amount then outstanding.
13. Fees for Collection. If an action is instituted by the Purchaser to collect any amounts owed to such Purchaser under this Note, the Company shall pay all costs and expenses of the Purchaser, including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument except those explicitly set forth in this Note and the Note Purchase Agreement. The Company agrees that any delay on the part of the Purchaser in exercising any rights hereunder will not operate as a waiver of such rights. The Purchaser shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies, and no waiver of any kind shall be valid unless in writing and signed by the party or parties waiving such rights or remedies.
14. Governing Law. This Note shall be governed by and construed under the laws of the State of Delaware as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware.
15. Modification; Waiver. Any provision of this Note may be amended or waived only by the written consent of the Company and the Purchaser.
16. Severability. If any provision of this Note is held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of the Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
17. Stockholder Status. Nothing contained in this Note shall be construed as conferring upon the Purchaser the right to vote or to receive dividends or to consent or to receive notice as a stockholder in respect of any meeting of stockholders for the election of directors of the Company or of any other matter, or any other rights whatsoever as a stockholder of the Company, prior to conversion hereof.
| 18. | Unsecured Obligation. This Note represents an unsecured general obligation of the Company. |
19. Tax Treatment. The parties acknowledge and agree that this Note is intended to be characterized as debt for U.S. federal (and applicable state and local) income tax purposes.
20. Assignment. This Note applies to, inures to the benefit of, and binds the successors and assigns of the parties hereto. Notwithstanding the foregoing or anything to the contrary in this Note or in the Note Purchase Agreement, the Company may not assign its obligations under this Note without the prior written consent of the Purchaser. Any transfer of this Note may be effected only pursuant to the Note Purchase Agreement and by surrender of this Note to the Company and reissuance of a new note to the transferee. The Purchaser and any subsequent holder of this Note receives this Note subject to the foregoing terms and conditions, and agrees to comply with the foregoing terms and conditions for the benefit of the Company.
21. Counterparts. This Note may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, with signatures transmitted by facsimile or .pdf binding as if originally executed.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
This Note is hereby issued by the Company as of the year and date first above written.
| FREENOME HOLDINGS, INC. | |||
| By: | /s/ Aaron Elliott | ||
| Name: | Aaron Elliott | ||
| Title: | Chief Executive Officer | ||
[Signature Page to Convertible Promissory Note]
| 1.1 |
“Affiliate” means (i) an organization, which directly or indirectly
controls a Party to this Agreement; (ii) an organization, which is directly or indirectly controlled by a Party to this Agreement; or (iii) an organization, which is controlled, directly or indirectly, by the ultimate parent company of a
Party. Control as per (i) to (iii) is defined as owning more than fifty percent of the voting stock of a company or having otherwise the power to govern the financial and the operating policies or to appoint the management of an organization.
With respect to Roche, the term “Affiliate” does not include Chugai Pharmaceutical Co. Ltd., 1-1, Nihonbashi-Muromachi 2-chome, Chuoku Tokyo,
103-8324, Japan (“Chugai”) unless Roche opts for the inclusion of Chugai by giving written notice to Freenome.
|
| 1.2 |
“Background IP” means the intellectual property, including all
patents, copyrights, trademarks, trade secrets, and know-how that are either (i) owned by or licensed to a Party as of the Effective Date of this Agreement or (ii) are conceived of, invented, or reduced to practice during the Term but (a)
without the benefit of Confidential Information of the other Party, and (b) are not Foreground IP.
|
| 1.3 |
“Change of Control” means, with respect to a Party: (i) the
acquisition by any third party of beneficial ownership of fifty percent (50%) or more of the then outstanding common shares or voting power of such Party; (ii) the consummation of a business combination involving such Party, unless, following
such business combination, the stockholders of such Party that owned directly or indirectly more than fifty percent (50%) of the outstanding common shares or voting power of the Party immediately prior to such business combination beneficially
own directly or indirectly more than fifty percent (50%) of the outstanding common shares or voting power of the entity resulting from such business combination; or (iii) the sale to a third party of all or substantially all of such Party’s
assets or business. Notwithstanding the foregoing, the term “Change of Control” will not include (a) any sale of shares of capital stock of a Party, in a single transaction or series of related transactions in which new securities are issued to
institutional or strategic investors for cash or the cancellation or conversion of indebtedness or a combination thereof where such transaction(s) are conducted primarily for bona fide equity financing purposes (including the sale of capital
stock to underwriters in an underwritten public offering), (b) a transaction solely to change the domicile of a Party; or (c) in the case of Freenome, (x) a reverse merger pursuant to which Freenome or its successor entity becomes a publicly
traded company or a subsidiary of a publicly traded company and where Freenome’s operations are the primary business of such entity or (y) a transaction or a series of related transactions by merger, consolidation, share exchange or otherwise
of Freenome with a publicly traded “special purpose acquisition company” or its subsidiary (collectively, a “SPAC”), immediately following
the consummation of which the common stock or share capital of the SPAC or its successor entity is listed on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace.
|
| 1.4 |
“Commercially Reasonable Efforts” means, with respect to a Party
and a product or product-related activity, the level of efforts consistent with the efforts such Party devotes to a product that it has under a similar stage of research, development or commercialization, as applicable, in a similar area with
similar market potential and similar strategic value in its portfolio, taking into account [***]. It is understood that the level of Commercially Reasonable Efforts may change from time to time based upon regulatory, technical, legal,
scientific, medical or commercial factors.
|
| 1.5 |
“Confidential Information” means information, inventions,
discoveries, formulae, processes, techniques and methods relating to the past, present and future disclosed in any form by or on behalf of the Party providing the information (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with, and during the Term
of, this Agreement; provided that “Confidential Information” does not include information that (i) was, is, or becomes generally available to the public other than as a result of a breach of confidentiality, non-use and non-disclosure
obligations; (ii) was or is developed by Receiving Party independently of and without use of or reference to any Confidential Information of Disclosing Party; (iii) was already known by the Receiving Party at the time first disclosed by the
Disclosing Party; or (iv) was, is, or becomes available to Receiving Party on a non-confidential basis from a third party without a breach of any confidentiality or non-use obligations with respect to such information. This Agreement,
including the terms of this Agreement, are the Confidential Information of both Parties.
|
| 1.6 |
“Controlled” or “Controls” means, with respect to any intellectual property (including any patent or know-how) and a Party, as applicable, the possession (whether by ownership or license, other than
pursuant to a license under this Agreement) of the ability of such Party to assign, transfer, or grant access to, or to grant a license or sublicense of, such right as provided for in this Agreement without (i) violating the terms of any
agreement or other arrangement with any third party in existence as of the time such Party would be first required hereunder to make such assignment or transfer, grant access, or grant such license or sublicense or (ii) subject to Section
2.3.2, incurring any payment obligation to a third party. Notwithstanding any provision to the contrary set forth in this Agreement, in the event of a Change of Control of a Party, such Party and its Affiliates will be deemed to not “Control”
any intellectual property that is owned by any acquirer of such Party or affiliates of such acquirer (excluding such Party and its Affiliates existing prior to such Change of Control) (collectively, the “Acquirer Group”), or to which any of the Acquirer Group has rights under a license or similar contractual arrangement, in each case, except that, if (a) prior to the
consummation of such Change of Control, such acquired Party (or any of its Affiliates prior to such Change of Control) also Controlled such intellectual property; (b) such intellectual property arises after such Change of Control from (x)
participation by employees or consultants of any of the Acquirer Group in any activities conducted under this Agreement or (y) use of any intellectual property or Confidential Information provided by the other Party to the acquired Party or any
of Acquirer Group hereunder; or (c) such acquired Party or any of its Affiliates actually uses any such intellectual property in the performance of any of its obligations hereunder or exercises its rights under this Agreement with respect
thereto; then, in each case ((a)-(c)), such intellectual property will be deemed “Controlled” by such Party for purposes of this Agreement.
|
| 1.7 |
“Field(s)” means either or both of the following:
|
| 1.7.1 |
“Decentralized Field,” which means decentralized, distributed kits
of reagents and software that are used by the customer within the Territory according to Roche-specified instructions for use; and
|
| 1.7.2 |
“Centralized Field,” which means a testing service offered to
customers within the Territory according to the testing services provider’s established workflow that is validated by the testing provider.
|
| 1.8 |
“Foreground IP” means all intellectual property, including but not
limited to, inventions, discoveries, copyrights, and know-how, that are conceived, reduced to practice, or otherwise created by a Party or the Parties in the course of performing under this Agreement.
|
| 1.9 |
“Improvements” means any and all intellectual property, including,
but not limited to, inventions, discoveries, designs, works of authorship, and know-how that is conceived, reduced to practice, or otherwise developed by a Party or Parties as a result of performance of this Agreement that is based on, is a
modification of, or is a derivative of the other Party’s (or both Parties’) Background IP, SBX Foreground IP, or Other Foreground IP.
|
| 1.10 |
“Licensed Technology” means the Licensed Patents and Licensed
Know-How.
|
| 1.11 |
“Licensed Know-How” means all know-how, assay methods, reagents,
components, instruments, techniques, workflows, designs, data, methods, including but not limited to biological, chemical and bioinformatic methods for quantification and detection of proteins and nucleic acids (e.g., sequencing, immunoassays, mass spectrometry, methylation, and fragmentomics analysis), and suppliers used, in whole or in part, in each case, that are (i)
Controlled by Freenome or its Affiliates as of the Effective Date or during the Term, (ii) necessary or reasonably useful to perform, use, import, manufacture, distribute, market, sell, offer for sale, and have sold the Freenome Assays in the
Territory, and (iii) proprietary to Freenome and not publicly available.
|
| 1.12 |
“Licensed Patents” means patents and patent applications that are
(i) Controlled by Freenome or its Affiliates as of the Effective Date or during the Term, and (ii) cover the Freenome Assays in the Territory or are necessary or reasonably useful to perform, use, import, manufacture, distribute, market, sell,
offer for sale, and have sold the Freenome Assays in the Territory. Without limitation of the foregoing, the Licensed Patents include the patents and patent applications listed in Exhibit A of this Agreement (the “Existing Application(s)”) and patents issuing therefrom in the Territory or from any patent application in the Territory to which an Existing Application claims priority
and any and all substitutions, extensions, patents of addition, reissues, re-examinations, renewals, divisions, continuations, improvements, continuations-in-parts, or extensions thereof in the Territory, and any and all equivalents of any of
the foregoing anywhere in the Territory.
|
| 1.13 |
“Licensed Products” means a product or service that (i) uses any
assay developed now or in the future, in whole or in part, by or on behalf of Freenome or its Affiliates for cancer screening and/or early cancer detection [***] (collectively, the “Freenome Assays”) and (ii) employs the same or substantially the same method of use of any Freenome Assays as of the Effective Date (including without limitation genetic and epigenetic markers in
cell-free DNA and/or proteins, NGS (however conducted), or [***]). For the avoidance of doubt, (a) the Licensed Products include, but are not limited to, assay reagents, consumable devices, and accompanying analytical software to the extent
they are part of such a product or service, and (b) the Freenome Assays do not include any assays that [***].
|
| 1.14 |
“Materials” means those certain instruments, materials, know-how,
data and software provided by or on behalf of Roche to Freenome under this Agreement.
|
| 1.15 |
“Net Sales” means [***].
|
| 1.16 |
“NGS” means next-generation sequencing.
|
| 1.17 |
“Partnering Transaction” means a transaction or series of
transactions in which Freenome or any of its Affiliates (i) grants any license or rights with respect to, (ii) agrees to assign or otherwise transfer, or (iii) grants any option to obtain any license or rights with respect to, or any option to
obtain the assignment or transfer of, commercial rights to any Licensed Product in the Centralized Field in any country or jurisdiction in the Territory [***]. [***].
|
| 1.18 |
“Patent Challenge” means any challenge in a legal or administrative
proceeding, excluding ordinary course ex parte prosecution, to the validity or enforceability of any Licensed Patent, including by (i) filing or pursuing a declaratory judgment action in which any such Licensed Patent is alleged to be invalid
or unenforceable; (ii) filing a request for or pursuing a re-examination of any such Licensed Patent (other than with Freenome’s written agreement), or becoming a party to or pursuing an interference; (iii) filing, or joining in, a petition
under 35 U.S.C. § 311 (or any foreign statute or regulation that is equivalent or similar thereto) to institute inter partes review of any such Licensed Patent; or (iv) filing, or joining in, a petition under 35 U.S.C. § 321 (or any foreign
statute or regulation that is equivalent or similar thereto) to institute post-grant review of any such Licensed Patent or any portion thereof.
|
| 1.19 |
“SBX Background IP” means Roche’s Background IP to the extent relating to or covering the SBX Platform.
|
| 1.20 |
“Territory” means worldwide, excluding the United States.
|
| 1.21 |
“Valid Claim” means a claim of an issued patent, a pending patent
application or application-in-preparation included in a Licensed Patent (in the case of a pending patent application, to the extent not pending for more than [***] years from its filing date without issuance of a patent), which has not expired
or been disclaimed, cancelled, or held invalid or unenforceable by a final unappealable or non-appealed order of a court or agency of competent jurisdiction, or has not otherwise finally been held un-patentable by the appropriate administrative
agency, or which has not been admitted by the patentee to be invalid or unenforceable.
|
| 2.1 |
Option Issue Fee. Within [***] business days of the Effective Date, Roche
shall pay Freenome seventy-five million U.S. dollars (US $75,000,000) as more fully described in the Convertible Note executed by Freenome and Roche Holdings, Inc., an Affiliate of Roche, on November 17, 2025 in exchange for the rights
described in Section 2.2 (the “Option Issue Fee”).
|
| 2.2 |
Option. Upon payment of the Option Issue Fee, Freenome hereby grants to Roche
and/or its Affiliates an exclusive option to obtain an exclusive, royalty bearing, sublicenseable (through multiple tiers in accordance with Section 2.3.1) license under the Licensed Technology, to use, import, manufacture, distribute, market,
sell, offer for sale, and have sold the Licensed Products in the Decentralized Field in the Territory (such option, the “Option” and such
license, the “Decentralized Field License”).
|
| 2.3 |
Sublicensing and Other Rights.
|
| 2.3.1 |
All licenses granted to Roche under this Agreement, including the Decentralized Field License (when and if granted) shall be sublicensable by Roche through multiple tiers
[***]. Any such sublicense shall be consistent with the terms and conditions of this Agreement and subject to the terms and conditions of this Agreement. Roche will remain primarily liable to Freenome for the performance of all of Roche’s
obligations under, and Roche’s compliance with all provisions of, this Agreement, and for the performance of all obligations of its Affiliates and sublicensees as required under this Agreement.
|
| 2.3.2 |
If, following the Effective Date, Freenome obtains licenses, sublicenses, access to or other rights to any intellectual property (including any patent or know-how) that
would otherwise be included within the Licensed Technology but for the fact that granting a sublicense to, or otherwise extending such rights to, Roche as part of the Decentralized Field License would cause Freenome to incur payment obligations
to a third party (“Excluded IP”), Freenome shall provide Roche with written notice thereof. Any such written notice shall include a
description of the Excluded IP and its utility and the financial and other terms and conditions that would apply to Roche’s use of the Excluded IP as part of the Decentralized Field License. Roche shall have [***] days to notify Freenome in
writing whether Roche desires to include the Excluded IP within the Licensed Technology, and if Roche so elects such inclusion, then (i) notwithstanding the definition of “Control,” Freenome shall be deemed to Control such Excluded IP and such
Excluded IP shall be included within the Licensed Technology, (ii) Roche shall comply with the applicable terms and conditions relating to such Excluded IP as previously provided by Freenome, and (iii) Roche shall be responsible for paying to
Freenome any financial payments owed by Freenome to the owner and/or licensor of the Excluded IP to the extent resulting from Roche’s use of the Excluded IP in the exercise of the Decentralized Field License.
|
| 2.4 |
Option Exercise & Option Exercise Fee.
|
| 2.4.1 |
If Roche desires to exercise the Option, then no later than the end of the Option Term (as defined below) Roche shall give written notice to Freenome stating that it is
exercising the Option.
|
| 2.4.2 |
Roche shall pay Freenome [***] U.S. dollars (US $[***]) (“Option Exercise
Fee”) within [***] days after sending its written notice of Option exercise.
|
| 2.4.3 |
If, at any time during the Option Term, Roche provides notice that it desires to proceed with [***], then Freenome shall provide to Roche [***].
|
| 2.4.4 |
The Decentralized Field License shall become effective upon, and Freenome shall be deemed to have hereby granted the Decentralized Field License to Roche upon, payment of
the Option Exercise Fee in accordance with this Section 2.4. Unless the Parties otherwise agree in writing, during the effectiveness of the Decentralized Field License, Roche shall, as between the Parties, be solely responsible for the
development, manufacturing, and commercialization of Licensed Products in the Decentralized Field in the Territory.
|
| 2.5 |
Option Term. Roche shall be permitted to exercise the Option at any time from
[***] through and until [***] after the earlier of (i) Licensed Products for at least [***] separate indications, including CRC and lung cancer as [***] of such [***] separate indications, have been approved or cleared by the United States Food
and Drug Administration (“FDA”), or (ii) (x) Licensed Products for CRC and lung cancer have been approved or cleared by the FDA, and (y)
Freenome has launched Licensed Products [***], for [***] additional separate indications other than CRC and lung cancer (“Option Term”).
|
| 2.6 |
Preferred Partner Right. Upon payment of the Option Issue Fee, Freenome hereby
grants to Roche and/or its Affiliates a preferred partnering right for a Partnering Transaction with respect to any Licensed Product in the Centralized Field in the Territory during the Option Term, subject to the terms and conditions set forth
in this Section 2.6 (“Preferred Partner Right” or “PPR”).
|
| 2.6.1 |
[***].
|
| 2.6.2 |
[***].
|
| 2.6.3 |
[***].
|
| 2.6.4 |
[***].
|
| 2.7 |
Development Plan. Following the Effective Date, the Parties will cooperate to
draft a mutually agreed development plan for the development of the Licensed Products in the Decentralized Field in the Territory (“Decentralized
Field Development Plan”), and following the exercise of the Option and payment of the Option Exercise Fee the Parties shall be responsible for using Commercially Reasonable Efforts to execute such Decentralized Field Development Plan
as set forth therein, at Roche’s sole cost. The Decentralized Field Development Plan shall include (a) a mutually agreed technology transfer plan for Licensed Know-How and (b) a mutually agreed data sharing plan under which Roche will share
with Freenome kit data from customers of Licensed Products in the Decentralized Field in the Territory for research and development purposes at Freenome to the extent permitted under, and in compliance with, applicable laws and regulations and
customer contracts.
|
| 2.8 |
Alliance Managers and Committees. Within [***] days of the Effective Date,
each Party will designate representatives to serve in the roles described below.
|
| 2.8.1 |
Alliance Managers. Each Party will appoint one or more alliance managers who
will be responsible for the day-to-day coordination of the Party’s committees and activities under this Agreement (each an “Alliance Manager”).
Each Party may substitute an Alliance Manager by written notice to the other Party.
|
| 2.8.2 |
Program Committee. The Parties will appoint a project team made up of members
from each Party, which project team shall be co-chaired by one representative from Roche and one representative from Freenome (“Program Committee”).
The first meeting of the Program Committee shall be held within [***] days after the Effective Date. The Program Committee has a program management function, enabling regular information exchange and a fast and traceable decision making
process regarding the Decentralized Field Development Plan, the SBX Evaluation Plan, the SBX Implementation Plan, and any related activities under the Agreement. In the event the Program Committee cannot reach consensus, the issue will be
escalated to the Development Steering Committee.
|
| 2.8.3 |
Development Steering Committee. Each Party will appoint three (3)
representatives to represent that Party on a development steering committee (“Development Steering Committee” or “DSC”), with such representatives to include legal and/or compliance personnel from each Party. Each Party may substitute one or more of its representatives to the
DSC by written notice to the other Party. The DSC shall meet no less than once a quarter during the course of the Agreement. The DSC will have the following responsibilities: (i) discuss and review progress and outputs of the Decentralized
Field Development Plan, the SBX Evaluation Plan, and the SBX Implementation Plan, including progress towards meeting the milestones for the Decentralized Field set forth in Section 3.1; (ii) [***]; (iii) [***]; (iv) [***]; (v) discuss certain
matters as required under Section 4.6; (vi) attempt to resolve disputes between the Parties escalated by the Program Committee or otherwise arising under this Agreement; (vii) review and discuss the preparation of regulatory filings; (viii)
appoint subcommittees as it deems appropriate for carrying out its responsibilities; and (ix) perform such other functions as appropriate to further the purposes of this Agreement as determined by the Parties, including the periodic evaluation
of performance against goals. All amendments to the SBX Evaluation Plan, the SBX Implementation Plan, and the Decentralized Field Development Plan
will be agreed upon by the DSC. All decisions of the DSC shall require unanimous approval of its members, not to be unreasonably withheld.
|
| 2.8.4 |
In the event the DSC is unable to reach consensus on a matter, then such matter shall be escalated to the respective leader (e.g., chief executive officer) of each Party
for a final decision.
|
| 2.8.5 |
The Alliance Managers, Program Committee members and DSC members may not amend, modify or waive compliance with any term or condition of this Agreement.
|
| 2.9 |
Compliance with Law. Each Party shall perform its obligations under this
Agreement in compliance with applicable laws in all material respects.
|
| 3.1 |
Milestones for the Decentralized Field. If Roche exercises the Option and pays
the Option Exercise Fee in accordance with Section 2.4, it shall pay Freenome the following milestones during development of the Licensed Products for the Decentralized Field:
|
| 3.1.1 |
[***].
|
| 3.1.2 |
[***].
|
| 3.2 |
Diligence. If Roche exercises the Option, Roche will use Commercially
Reasonable Efforts to develop, manufacture and commercialize the Licensed Products in the Decentralized Field in the Territory, [***], subject in all cases to Freenome’s performance of its obligations under this Agreement that are necessary to
enable Roche to comply with the foregoing.
|
| 3.3 |
Royalties. [***]
|
| 3.4 |
Royalty Term. Royalties are payable on a Licensed Product-by-Licensed Product
and country-by-country basis for Net Sales realized following the first commercial sale of a Licensed Product in the Decentralized Field in such country in the Territory by Roche or its Affiliate or sublicensee. Roche’s obligation to pay any
royalty shall expire, on a Licensed Product-by-Licensed Product and country-by-country basis, upon the later of (i) patent expiration or revocation of the last Valid Claim of the Licensed Patents covering the applicable Licensed Product in the
applicable country and (ii) [***] years after first commercial sale of such Licensed Product in the Decentralized Field in such country by Roche or its Affiliate or sublicensee. [***].
|
| 3.5 |
Anti-Stacking. If Roche or its Affiliates are required to pay any amounts to
any third party with respect to a particular Licensed Product and country in the Territory in consideration for receiving a license to or an assignment of [***], then Roche shall be entitled to deduct [***] against the royalties payable by
Roche to Freenome under this Agreement for sales of such Licensed Product in such country, [***].
|
| 4.1 |
Roche SBX Sequencer Evaluation [***]. [***], Freenome agrees to, with Roche,
conduct a comprehensive evaluation of Freenome Assays on the instruments, chemistry, methods, and software used by and with Roche’s SBX sequencer (collectively, the “SBX Platform”). [***].
|
| 4.2 |
Evaluation Criteria and Plan. [***]
|
| 4.3 |
Availability of Freenome Assays on the SBX Platform. [***]:
|
| 4.4 |
SBX Implementation Plan. [***]
|
| 4.5 |
[***]
|
| 4.6 |
Performance Characterization Study.
|
| 4.6.1 |
[***]
|
| 4.6.2 |
[***]
|
| 4.7 |
[***]
|
| 4.8 |
Access to Samples. Roche will make available to Freenome the [***] samples
[***]. Freenome may use the [***] samples for development and analytical evaluation studies for its [***]. Freenome may use the [***] samples for its internal development purposes. Freenome will use Commercially Reasonable Efforts to save the
remaining unused samples [***]. Any publications arising from Freenome’s use of [***] shall include as authors the Principal Investigator and Study Manager from the site that collected those samples, as well as certain Roche investigators on
that study, whose names will be provided by Roche.
|
| 5.1 |
Background Intellectual Property. Each Party owns all rights, title, and
interest in and to its Background IP. Other than the rights granted in this Agreement, neither Party grants the other Party any rights to its Background IP.
|
| 5.2 |
Other Foreground Intellectual Property. If a Party solely conceives of,
invents, or reduces to practice (collectively, “creates”) Foreground IP in the course of performing activities under this Agreement that is not SBX Foreground IP or Improvements (“Other Foreground IP”), then the creating party shall be the sole owner of that Other Foreground IP. If the Parties jointly create Other Foreground IP, then such Other Foreground IP will be jointly
owned by the Parties. Each Party agrees to promptly notify the other when it becomes aware of Other Foreground IP that it contends it has created in whole or in part.
|
| 5.3 |
SBX Foreground Intellectual Property. All Foreground IP developed in the
course of performing activities under the Agreement that constitutes an Improvement to the SBX Platform [***] (collectively, “SBX Foreground IP”),
whether created solely by a Party or jointly by the Parties, is the sole and exclusive property of Roche. Freenome agrees to and does hereby assign all right, title, and interest in such SBX Foreground IP to Roche. Freenome agrees to promptly
notify Roche when it becomes aware of SBX Foreground IP that Freenome contends it has created in whole or in part.
|
| 5.4 |
Improvements. Any Improvements developed in whole or in part by or on behalf
of Roche to Freenome’s Background IP or Freenome’s solely-owned Other Foreground IP shall be the sole and exclusive property of Freenome, subject to any license rights granted herein. Roche agrees to and does hereby assign all right, title,
and interest in such Improvements to Freenome, subject to any license rights granted herein. Any Improvements developed in whole or in part by or on behalf of Freenome to Roche’s Background IP, SBX Background IP, Roche’s solely-owned Other
Foreground IP, and SBX Foreground IP are the sole and exclusive property of Roche. Freenome agrees to and does hereby assign all right, title, and interest in such Improvements to Roche. An Improvement by either Party to jointly-owned Other
Foreground IP is likewise jointly owned by the Parties. Each Party agrees to promptly notify the other of any Improvements that it contends it has created in whole or in part.
|
| 5.5 |
Cross-License for Other Foreground IP. During the Term, the Party owning the
Other Foreground IP hereby grants to the other Party a worldwide, non-exclusive, royalty-free, fully paid-up, license under its Other Foreground IP for the purpose of exercising all rights granted under this Agreement and performing all
obligations required under this Agreement. Such license is sublicensable and transferable (i) in the case of Roche, only to the extent necessary to exploit the Licensed Technology to develop and commercialize the Licensed Products as set forth
in this Agreement and (ii) in the case of Freenome, only to the extent necessary to exercise its rights granted under this Agreement and to perform all obligations required under this Agreement.
|
| 5.6 |
License for SBX Background IP and SBX Foreground IP. During the Term, Roche
grants to Freenome a worldwide, non-exclusive, royalty-free, fully paid-up license to the SBX Background IP and SBX Foreground IP solely for the purpose of practicing that intellectual property as necessary or reasonably useful to carry out the
Decentralized Field Development Plan, the SBX Evaluation Plan, and the SBX Implementation Plan or to perform any of Freenome’s assays (including the Commercial Freenome Assays) on the SBX Platform as required under the Agreement.
|
| 6.1 |
Payment. All payments to Freenome under this Agreement shall be paid in United
States Dollars (“USD”), by wire transfer to Freenome in accordance with the payment instructions provided in writing by Freenome to Roche
reasonably in advance of the date when payments are due. Royalties with respect to Net Sales invoiced in any currency other than USD will be computed by converting such Net Sales in accordance with the procedures ordinarily used by Roche when
converting foreign currency sales in its normal business operations, which procedures shall be in accordance with generally accepted accounting principles.
|
| 6.2 |
Roche will pay all royalties payable hereunder each calendar quarter (“Reporting
Period”). All such payments are due within [***] days after the end of each calendar quarter (March 31, June 30, September 30 and December 31) and shall be accompanied by a royalty report containing the particulars of the Net Sales on
Licensed Product by Licensed Product basis and will include the following: (i) Net Sales of Licensed Products during the most recently completed calendar quarter, (ii) any royalty deduction taken in accordance with the terms of this Agreement,
(iii) the exchange rates used, if applicable, and (iv) if no Net Sales have been made by Roche during any Reporting Period, Roche will so report.
|
| 6.3 |
All royalty statements and other information provided under this Agreement by Roche to Freenome shall be the Confidential Information of the Parties. Notwithstanding the
foregoing, the Parties each, without prior notification to the other Party, have the right to share such Confidential Information with its legal and financial advisors, including accountants, who are subject to an obligation to protect the
confidentiality of such information.
|
| 6.4 |
In keeping with established bookkeeping and accounting practices, Roche will maintain, for a period of [***] years following the end of the contract year in which any
royalties are payable, complete and accurate books and records adequate to confirm the accuracy of the royalties and other payments made or payable under this Agreement. Freenome will have the right, once per calendar year, during regular
business hours and upon reasonable prior written notice, to have an independent auditor, reasonably acceptable to Roche, make such examination as to verify the accuracy of the royalty reports hereunder for any calendar year ending not more than
[***] years prior to the date of such request. No books and records of Roche shall be subject to more than one audit [***]. In the event that such examination reveals an underpayment of royalties or other payments due hereunder, all such
additional royalties and other payments, together with interest from the date when such additional royalties and payments would have been due will be paid within [***] days of written notice from the independent auditor of such discrepancy. If
such examination reveals an overpayment of royalties or other payments due hereunder, Roche will be permitted to offset any such overpayment against any future amounts owed to Freenome. Any such audit is at Freenome’s sole expense and
performed by a nationally recognized accounting firm under reasonable obligations of confidentiality. If an underpayment of more than [***] is discovered, then Roche will reimburse Freenome’s reasonable costs of the audit. If Roche in good
faith disputes the conclusion of the auditor that Roche owes additional royalties or other payments, or any specific aspect of the conclusion, then Roche will inform Freenome by written notice within [***] days of receiving a copy of the audit
containing such conclusion, specifying in detail the reasons for Roche disputing such conclusion.
|
| 6.5 |
Roche will make all payments to the account provided in Section 6.1 in the full amounts as herein specified; provided, however, that deduction may be made from such
payments by Roche for amounts lawfully required to be withheld and paid by Roche in respect of any income tax levied or assessed upon such payments.
|
| 7.1 |
Freenome has the sole right and responsibility to and shall use Commercially Reasonable Efforts to, at its own expense, prepare, file, prosecute and maintain the Licensed
Patents. Freenome will keep Roche fully informed as to patent prosecution of the Licensed Patents and copy Roche on all patent prosecution and maintenance related correspondence with patent offices in the Territory with respect to Licensed
Patents (including proposed patent filings, allowances, rejections, office actions and proposed responses to office actions with respect thereto). Freenome will not abandon any Licensed Patents (other than abandonments of claims in the
ordinary course of prosecution) without first obtaining Roche’s approval for the same, such approval not to be unreasonably withheld. As between the Parties, Freenome will have the right (but not the obligation), at its sole discretion, to
defend against a declaratory judgment action, post-grant review proceeding, inter partes review, opposition proceeding, interference or
any other legal or administrative action challenging any of the Licensed Patents; provided, however, that in the case of a challenge to a Licensed Patent that is brought as a counterclaim to an action against a Competitive Infringement (as
defined below) pursuant to Section 7.2, the Party controlling such infringement action shall also control the response to the such counterclaim.
|
| 7.2 |
The terms of this Section 7.2 shall apply solely upon effectiveness of the Decentralized Field License. The Parties will consult and cooperate with respect to
enforcement against third party infringement (and settlement of any enforcement action) of the Licensed Patent(s) in the Territory. Each Party will promptly (but no later than [***] days from when it becomes aware of the same) notify the other
Party in writing if it becomes aware of such potential third party infringers. Following the effectiveness of the Decentralized Field License, where Roche has exclusive rights to the Licensed Patent(s), Roche will have the first right (at its
discretion) to institute at its expense such enforcement of the Licensed Patent(s) suspected of being infringed, solely to the extent such infringement involves an assay for cancer screening and/or early cancer detection (“Competitive Infringement”). If Freenome is a necessary party to such suit, Freenome hereby agrees to be joined as a party in such suit, at
Roche’s expense. If Roche fails to institute such enforcement or otherwise abate such alleged infringement by the earlier of (a) [***] days prior to any deadline set forth in any applicable laws or regulations and (b) [***] days after first
learning of such Competitive Infringement, then Freenome will have the right (at its discretion) to institute at its expense such enforcement of the Licensed Patent(s) against such Competitive Infringement. If Roche is a necessary party to
such suit, Roche hereby agrees to be joined as a party in such suit, at Freenome’s expense. Each Party has the right to recover its actual, reasonable out-of-pocket costs (or, proportionate share if the recovery from such third party does not
cover such out-of-pocket costs) incurred by such Party in connection with such litigation or settlement from the proceeds or awards recovered from third party infringers of such Licensed Patent(s) in a Competitive Infringement. Any remaining
proceeds or awards recovered against infringers of Licensed Patent(s) in a Competitive Infringement will be kept by the Party bringing the enforcement action. For clarity, Freenome shall retain the sole right (at its discretion) to enforce the
Licensed Patent(s) against any infringement or violation that is not a Competitive Infringement.
|
| 7.3 |
The Parties will consult and cooperate with one another in the perfection of all rights conveyed under Article 5 of the Agreement. The Party owning the rights conveyed
under Article 5 of the Agreement will bear all costs associated with perfecting those rights.
|
| 8.1 |
Each Party represents and warrants to the other that:
|
| 8.1.1 |
It has the power and authority to enter into this Agreement; and
|
| 8.1.2 |
This Agreement does not conflict with any other agreement entered into between the representing Party and any third party.
|
| 8.2 |
Freenome represents and warrants to Roche as of the Effective Date as follows:
|
| 8.2.1 |
Freenome has all necessary right, title and interest to the Licensed Technology to convey the rights to Roche set forth in this Agreement;
|
| 8.2.2 |
Freenome does not own or control any patents, patent applications or know-how that are not included in the Licensed Technology and that are necessary or reasonably useful
for Roche to perform, use, import, manufacture, distribute, market, sell, offer for sale, and have sold the Freenome Assays in the Decentralized Field in the Territory or otherwise exercise its rights under this Agreement;
|
| 8.2.3 |
To the best of Freenome’s knowledge, Roche’s exploitation of the Licensed Products as set forth in this Agreement does not infringe, misappropriate, or otherwise violate
any intellectual property of any third party;
|
| 8.2.4 |
There are no suits, claims and proceedings pending or threatened against Freenome or any of its Affiliates that Freenome is aware of in any court or by or before any
governmental body or agency with respect to the Licensed Technology or the Freenome Assays; and
|
| 8.2.5 |
The Licensed Technology has not been obtained through any fraudulent activity or misrepresentation.
|
| 8.3 |
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED (AND EACH
PARTY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES NOT EXPRESSLY PROVIDED IN THIS AGREEMENT), INCLUDING WITH RESPECT TO ANY PATENTS OR KNOW-HOW, OR MATERIALS, INCLUDING WARRANTIES OF VALIDITY OR ENFORCEABILITY OF ANY
PATENTS, TITLE, QUALITY, COMPLETENESS, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, PERFORMANCE, AND NONINFRINGEMENT OF ANY THIRD PARTY PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE FOREGOING,
NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE THAT THE ACTIVITIES TO BE PERFORMED UNDER THIS AGREEMENT WILL BE SUCCESSFUL, THAT ANY OTHER PARTICULAR RESULTS WILL BE ACHIEVED WITH RESPECT TO THE LICENSED PRODUCTS HEREUNDER OR
THAT THE MILESTONES OR ROYALTIES HEREUNDER WILL BECOME PAYABLE.
|
| 9.1 |
This Agreement will be effective as of the Effective Date and, unless this Agreement is earlier terminated in accordance with the terms and conditions of this Agreement,
(i) if Roche exercises the Option and pays the Option Exercise Fee in accordance with Section 2.4, will continue until the expiration of the Royalty Term for all Licensed Products in the Territory, or (ii) if Roche does not exercise the Option
and pay the Option Exercise Fee in accordance with Section 2.4, will continue until the earlier of (a) [***] years following such time when [***] or (b) the termination of the SBX Evaluation Plan and SBX Implementation Plan (“Term”).
|
| 9.2 |
Freenome shall provide Roche with notice of a Change of Control within [***] days after the consummation of such Change of Control. Within [***] days of receiving notice
from Freenome of a Change of Control to any Third Party identified in Exhibit C, Roche may terminate this Agreement.
|
| 9.3 |
Expiration or termination of this Agreement does not affect Roche’s obligations pursuant to Articles 2 or 3 to pay any amounts accrued prior to such expiration or
termination of this Agreement. Article 1 (solely to the extent relating to the other surviving terms), Section 5.1, Section 5.2, Section 5.3, Section 5.4, Section 5.5 (solely to the extent necessary to enable a Party to perform any of its
other surviving obligations), Section 5.6 (solely to the extent necessary to enable a Party to perform any of its other surviving obligations), Article 6 (solely to the extent relating to the other surviving terms), Section 8.3, this Section
9.3, Section 9.6, Article 10, Article 11 and Article 12 survive expiration or termination of this Agreement (for the duration stated therein, if specified).
|
| 9.4 |
If either Party commits a material breach hereunder, then the other Party shall notify such allegedly breaching Party in writing of such material breach, in which case
such allegedly breaching Party will have [***] days ([***] days in the event of any material breach of a payment obligation) to cure such breach. If the allegedly breaching Party fails to cure such material breach within such cure period, then
the other Party may, at its sole option, terminate this Agreement in whole or in part by sending the allegedly breaching Party written notice of termination. Without limiting the foregoing, if Roche disputes in good faith Freenome’s assertion
of a material breach of a payment provision, then Roche will pay to Freenome during the cure period any amounts not the subject of a good faith dispute.
|
| 9.5 |
Freenome may terminate this Agreement in its entirety at any time upon [***] days’ prior written notice to Roche, if one of the following events occurs
and Freenome provides such notice no later than [***] days after Freenome first obtains actual knowledge that Freenome has such termination right:
|
| 9.5.1 |
[***].
|
| 9.5.2 |
Upon exercise of the Option, Roche or any of its Affiliates (but not for clarity any sublicensee) engages in (or causes or directs any third party,
including any sublicensee, to engage in) any Patent Challenge with respect to any Licensed Patent; provided that with respect to any Patent Challenge by any Affiliate, Freenome will not have the right to terminate this Agreement under this
Section 9.5 if, within [***] days after Freenome’s notice to Roche, Roche causes such Patent Challenge to be terminated or dismissed; and provided, further, that this Section 9.5 will not apply to, and Freenome may not terminate this Agreement
(and Roche shall have no liability) with respect to (i) any claim or proceeding that would otherwise be a Patent Challenge hereunder to the extent commenced by a Third Party that after the Effective Date acquires or is acquired by Roche or its
Affiliates or its or their business or assets, whether by stock purchase, merger, asset purchase, or otherwise; provided that such proceeding commenced prior to the closing of such acquisition, (ii) any Patent Challenge required to be commenced
pursuant to an order of a governmental authority or applicable laws or regulations; (iii) challenges by an open forum entity or other industry group in which Roche or its Affiliates or sublicensees do not direct or control the action of such
entity; (iv) general activities not specifically directed to a particular Licensed Patent, such as amicus briefs on cases not involving any Licensed Patent; (v) lobbying or other efforts directed to Licensed Patent issues generally and not to
any specific Licensed Patent; (vi) any affirmative defense or other validity, enforceability, or non-infringement challenge, whether in the same action or in any other agency or forum of competent jurisdiction, advanced by Roche, any of its
Affiliates or its or their sublicensees in response to any claim or action brought in the first instance by, or on behalf of, Freenome; or (vii) providing documents or testimony in response to any discovery requests or court order in a valid
legal process.
|
| 9.5.3 |
If Roche has not paid the milestone in Section 3.1.1 on or before the [***] anniversary of Roche’s exercise of the Option.
|
| 9.6 |
If this Agreement is terminated or expires for any reason, such termination or expiration is without prejudice to rights and obligations that have accrued prior to or
because of such termination or expiration. If this Agreement expires pursuant to subsection (i) of Section 9.1, licenses granted by Freenome under the Licensed Technology and under Section 5.5 shall continue on a perpetual, royalty-free
basis. If this Agreement is terminated: (a) except as set forth in Section 9.3, any licenses granted by Freenome under the Licensed Technology shall cease upon the date of the termination, and any licenses granted by Roche to Freenome shall
cease upon the date of the termination; and (b) unless such termination is by Freenome pursuant to Section 9.4, Roche has the right for [***] months from the date of termination to sell or otherwise dispose of all Licensed Products in the
process of manufacture, testing, in use or in stock, provided that Roche remains obligated to make payment of royalties to Freenome for such Licensed Products, and Roche will immediately cease the manufacturing of new Licensed Products.
|
| 10.1 |
Except for losses, liabilities, damages and expenses arising from the occurrences described in Article 10.2(a) and (b), Roche will indemnify and hold Freenome, and
Freenome’s officers, directors, Affiliates, successors and assigns, harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) arising from any claims, demands, actions or other proceedings by
any third party arising out of or relating to (a) any breach of any representation, warranty or covenant of Roche under this Agreement, (b) willful misconduct or gross negligence of Roche, or (c) Roche’s performance, use, importation,
manufacture, distribution, marketing, sale and offering for sale of the Licensed Products in the Decentralized Field in the Territory.
|
| 10.2 |
Except for losses, liabilities, damages and expenses arising from the occurrences described in Article 10.1(a) and 10.1(b), Freenome will indemnify and hold Roche, and
Roche’s officers, directors, Affiliates, successors and assigns, harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) arising from any claims, demands, actions or other proceedings by any
third party arising out of or relating to (a) any breach of any representation, warranty or covenant of Freenome under this Agreement, (b) willful misconduct or gross negligence of Freenome, or (c) infringement of third party intellectual
property by the Licensed Product.
|
| 10.3 |
A Party seeking indemnification under Article 10.1 or Article 10.2 (an “Indemnitee”),
will notify the other Party (the “Indemnitor”) upon becoming aware of any claim that may be subject to indemnification under this Article
10. Failure to provide such notice does not constitute a waiver or release of the Indemnitee’s rights to indemnification, except to the extent that such delay or failure materially prejudices the Indemnitor. The Indemnitee will cooperate
reasonably with the Indemnitor and its legal representatives in connection with the investigation and defense of any claim and/or liability covered by this Article 10. Neither Party may enter into any settlement, consent judgment or other
voluntary final disposition of any claim and/or liability for which an Indemnitee seeks indemnification hereunder without the prior written consent of the other Party, if such settlement would: (a) impose any monetary obligation on the other
Party or any of its Affiliates, (b) constitute an admission of guilt or wrong-doing by the other Party or any of its Affiliates, or (c) require the other Party or any of its Affiliates to submit to an injunction or otherwise limit the other
Party’s or any of its Affiliates’ rights under this Agreement.
|
| 10.4 |
LIMITATION OF LIABILITY. NEITHER PARTY HERETO SHALL BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
NOTHING IN THIS SECTION 10.4 IS INTENDED TO OR SHALL LIMIT OR RESTRICT DAMAGES AVAILABLE FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 11, A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO
SECTION 10, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
|
| 11.1 |
The Receiving Party will: (a) not use any Confidential Information of the Disclosing Party except as expressly set forth in this Agreement, (b) maintain the Disclosing
Party’s Confidential Information in confidence using the same degree of care that the Receiving Party uses for its own Confidential Information of a similar nature, but in no event using less than reasonable care, and (c) not disclose or
transfer any Confidential Information of the Disclosing Party (or any materials which contain such Confidential Information) to any third party; provided, however, that disclosure is permitted to the Receiving Party’s employees, agents or
permitted sub-contractors, in each case who reasonably require such Confidential Information to exercise Receiving Party’s rights and performing its obligations and who are bound by obligations of non-use, non-disclosure and confidentiality
with respect to such Confidential Information similar to those set forth in this Article 11.1.
|
| 11.2 |
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required to be disclosed by applicable law, or judicial or governmental
regulation or order, or the disclosure policies of a major stock exchange, provided that (i) the Receiving Party gives the Disclosing Party sufficient prior notice (which shall be [***] business days, unless a shorter period is reasonably
necessary to comply with applicable law, or judicial or governmental regulation or order), including a copy of the proposed disclosure, and (ii) if the Disclosing Party contests such disclosure requirement in the Disclosing Party’s reasonable
discretion, then the Receiving Party shall consider in good faith any redactions or comments to the proposed disclosure that are provided by the Disclosing Party, in each case ((i) and (ii)), to the extent permitted under applicable law, or
judicial or governmental regulation or order, or the disclosure policies of a major stock exchange, as applicable. In the event the Receiving Party ultimately is required to disclose such Confidential Information by applicable law, or judicial
or governmental regulation or order, the Receiving Party shall disclose only such portion of the Confidential Information as is required to be disclosed as advised by its legal counsel (e.g., if a range of royalty amounts may be disclosed in
lieu of disclosing the entire royalty provision, then a range will be disclosed) and shall seek, at the Disclosing Party’s request and expense, a protective order to protect the confidentiality of such Confidential Information. Any
Confidential Information disclosed under this Article 11.2 remains Confidential Information for all other purposes and continue to be subject to the non-use, non-disclosure and confidentiality obligations hereunder.
|
| 11.3 |
The Receiving Party may disclose the existence and certain terms of this Agreement to actual or bona fide potential investors, acquirors, royalty purchasers, and lenders only with the consent of the Disclosing Party, not to be unreasonably withheld.
|
| 11.4 |
Receiving Party’s obligations of confidentiality, non-use and non-disclosure under this Article 11 with respect to the Confidential Information of the Disclosing Party
under this Agreement survives for a period of [***] years from the date of expiration or termination of this Agreement.
|
| 11.5 |
Each Party is entitled to seek, in addition to any other right or remedy it may have, at law or in equity, a temporary injunction, without the posting of any bond or
other security, enjoining or restraining the other Party from any violation or threatened violation of this Article 11.
|
| 12.1 |
The Parties acknowledge and agree that any Roche Affiliate, including any employee or representative thereof, can exercise the rights and perform the obligations of Roche
under this Agreement; provided, however, that Roche will be responsible for all acts and omissions of such Affiliates, employees and representatives to the same extent as if such acts or omissions were undertaken by Roche.
|
| 12.2 |
No failure or delay on the part of either Party to exercise any right or remedy under this Agreement may be construed or operates as a waiver thereof, nor does any single
or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
|
| 12.3 |
Neither Party will act or describe itself as the agent of the other, nor will it make or represent that it has authority to make any commitments on the other’s behalf.
|
| 12.4 |
Any consent, notice or report required or permitted to be given or made under this Agreement by one of the Parties hereto to the other Party must be in writing, sent to
such other Party at its address indicated below, or to such other address as the addressee has last furnished in writing to the addresser, and is effective upon receipt by the addressee.
|
| 12.5 |
Neither Party will make any press release or other public announcement concerning any aspect of this Agreement, or make any use of the name of the other Party in
connection with or in consequence of this Agreement, without the prior written consent of the other Party, except to the extent required by applicable laws or regulations, in which case the Party obligated to make the disclosure will use
reasonable efforts to notify the other Party prior to such disclosure.
|
| 12.6 |
As of the Effective Date, this Agreement, including its Exhibits, sets out the entire agreement between the Parties relating to its subject matter and supersedes all
prior oral or written representations, agreements, arrangements or understandings between them relating to such specific subject matter (collectively, “Prior Agreements”). As of the Effective Date, if a conflict between this Agreement and any Prior Agreement, then the terms of this Agreement supersede such Prior Agreement.
|
| 12.7 |
Neither this Agreement nor any of the rights hereunder may be assigned by either party without the prior written consent of the other party except that this Agreement may
be assigned by either Party to (a) any of its Affiliates or (b) any successor to all or substantially all of the assets of such Party to which this Agreement relates, whether by merger, acquisition, sale of assets, sale of stock, or otherwise,
provided that (i) such Party provides the other Party with notice of any such assignment within [***] days after the effective date of the agreement effectuating such event and (ii) the assignee agrees in writing to be bound by the terms and
conditions of this Agreement to the same extent as the assignor. Notwithstanding the foregoing, Roche does not need to provide Freenome with notice of (a) any assignment of this Agreement or any rights granted hereunder to any Affiliate, or
(b) the delegation of activities under this Agreement to an Affiliate or Third Party, whether through a subcontract, a sublicense or otherwise.
|
| 12.8 |
Each Party will duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things,
including, without limitation, the filing of such assignments, agreements, documents and instruments, as may be necessary or as the other Party may reasonably request in connection with this Agreement or to carry out more effectively the
provisions and purposes hereof, or to better assure and confirm unto such other Party its rights and remedies under this Agreement.
|
| 12.9 |
This Agreement is governed by and construed in accordance with the local laws of the State of New York, USA, without regard to the conflicts of law principles thereof.
|
| 12.10 |
This Agreement may be executed (including via facsimile or other reliable electronic means of transmitting signed copies) in two (2) or more counterparts, each of which
is deemed an original, but all of which together constitute one and the same instrument.
|
|
Roche Sequencing Solutions, Inc.
|
Freenome Holdings, Inc.
|
|
|
By: /s/ Josh Lauer
|
By: /s/ Aaron Elliott
|
|
|
Name: Josh Lauer
|
Name: Aaron Elliott
|
|
|
Title: Global Head of Molecular Lab Customer Area
|
Title: CEO
|
|
|
Date:
|
Date:
|
Exhibit 10.17
THIS NOTE AND THE SECURITIES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES AND MAY NOT BE TRANSFERRED (UNLESS SUCH TRANSFER IS TO AN AFFILIATE) EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREUNDER. OTHER THAN IN CONNECTION WITH A TRANSFER TO AN AFFILIATE, THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH TRANSFER COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT BY THE PURCHASER (AS DEFINED BELOW) AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE.
THE TRANSFER OF THIS NOTE AND THE SECURITIES ISSUABLE HEREUNDER ARE SUBJECT TO THE TERMS AND CONDITIONS AS SET FORTH HEREIN.
FREENOME HOLDINGS, INC.
SENIOR UNSECURED CONVERTIBLE PROMISSORY NOTE
| $75,000,000 | November 17, 2025 |
For value received, Freenome Holdings, Inc., a Delaware corporation (the “Company”), hereby promises to pay Roche Holdings, Inc. or its assignees (the “Purchaser”), the Repayment Amount (as defined below), including the principal amount of seventy-five million dollars (US $75,000,000) (the “Principal Amount”), together with accrued and unpaid interest thereon, due and payable on the date and in the manner set forth below.
The following is a statement of the rights of the Purchaser and the conditions to which this senior unsecured convertible promissory note (the “Note”) is subject, and to which the Purchaser, by the acceptance of this Note, agrees:
1. Maturity Date. The Repayment Amount (as defined below) shall become due and payable, on May 17, 2027 (the “Maturity Date”).
2. Interest. This Note shall bear interest at the rate of 5% per year calculated on the basis of a 365-day year for the actual number of days elapsed.
3. Repayment. The amount payable in satisfaction of this Note, as of any given time, shall be equal to the sum of the (a) then outstanding Principal Amount and (b) then accrued but unpaid interest under this Note ((a) and (b), together, the “Repayment Amount”). Payment shall be made in lawful money of the United States to the Purchaser at such account in the United States as Purchaser shall designate by written notice to the Company.
4. Automatic Conversion Terms. While this Note remains outstanding, the Repayment Amount will be automatically converted into shares of Conversion Stock upon the earlier of (a) or (b) as set forth below.
(a) Public Listing. In the event that the Company undergoes a Public Listing (as defined below) the “Automatic Conversion Trigger”), then (A) the Company will promptly notify the Purchaser in writing of the occurrence of the Automatic Conversion Trigger and (B) the Repayment Amount will be automatically converted into shares of common stock of the Company, its corporate successor or, in the case of a SPAC Transaction, the ultimate surviving parent entity resulting from such SPAC Transaction, (the “Successor Company”) at a price per share equal to 1.2x the Original Offer Price (as defined below).
(b) Next Equity Financing. In the event that the Company completes the Next Equity Financing, the Repayment Amount will be automatically converted into Conversion Stock upon the closing of such Next Equity Financing. The number of shares of Conversion Stock to be issued upon such conversion shall be equal to the quotient obtained by dividing the Repayment Amount, on the date of conversion, by the Conversion Price. The issuance of Conversion Stock pursuant to the conversion of this Note shall be upon and subject to the same terms and conditions applicable to the preferred stock sold in the Next Equity Financing, other than with respect to (i) the per share liquidation preference and the initial conversion price for purposes of price-based anti-dilution protection, which will equal the Conversion Price; and (ii) the basis for any dividend rights, which will be based on the Conversion Price.
| (c) | Definitions. |
“Business Day” means a calendar day other than a Saturday, Sunday or a bank or other public holiday in San Francisco, California.
“Company” means, solely for purposes of Sections 4 and 6 of this Note, (x) Freenome Holdings, Inc., a Delaware corporation, (y) any parent entity of Freenome Holdings, Inc. that undertakes a Public Listing and (z) any subsidiary of the Freenome Holdings, Inc. that undertakes a Public Listing.
“Conversion Stock” means (a) prior to a Public Listing of the Company, the Company’s then most senior series of preferred stock then issued pursuant to a bona fide financing transaction (in right of liquidation preference), whether now or hereafter authorized, and (b) following a Public Listing of the Company, the shares of common stock of the Company or its Successor Company, as applicable.
“Conversion Price” means (a) prior to a Public Listing of the Company, (x) the original issue price per share of the Company’s then most senior series of preferred stock issued pursuant to a bona fide financing transaction (in right of liquidation preference), whether now or hereafter authorized (as such original issue price per share may be adjusted for stock splits, recapitalizations, anti-dilution adjustments and the like for such series of preferred stock) or (y) with respect to a conversion pursuant to Section 4(b), the Discount Rate multiplied by the price paid per share for preferred stock by the investors in the Next Equity Financing, or (b) following a Public Listing of the Company, a price per share equal to 1.2x the Original Offer Price (as defined below).
“Corporate Transaction” means any of the following: (i) the closing of the sale, transfer or other disposition of all or substantially all of the Company’s assets, (ii) the consummation of the merger or consolidation of the Company with or into another entity (except a merger or consolidation in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold over 50% of the voting power of the capital stock of the Company or the surviving or acquiring entity), or (iii) the closing of the transfer (whether by merger, consolidation or otherwise), in one transaction or a series of related transactions, to a Person or group of affiliated Persons (other than an underwriter of the Company’s securities), of the Company’s securities if, after such closing, such Person or group of affiliated Persons would hold more than 50% of the outstanding voting stock of the Company (or the surviving or acquiring entity). Notwithstanding the prior sentence, (A) a transaction shall not constitute a Corporate Transaction if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the Persons who held the Company’s securities immediately prior to such transaction; (B) the sale of shares of preferred stock in a bona fide financing transaction shall not be deemed a “Corporate Transaction” and (c) a SPAC Transaction shall not be deemed a “Corporate Transaction.”
“Discount Rate” means 80%.
“Next Equity Financing” means the next bona fide financing transaction of the sale (or series of related sales) by the Company of shares of preferred stock following the date of this Note.
“Original Offer Price” means (i) in the event of a Public Listing where shares of common stock of the Company are sold to the public, the purchase price per share of the common stock sold to the public or (ii) otherwise (e.g., in connection with a SPAC Transaction), the price per share determined for the common stock of the Company or its applicable successor entity in connection with the Public Listing, which in the case of a SPAC Transaction shall be the price per share for common stock of the Company sold in a concurrent financing transaction.
“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
“Public Listing” means (i) the closing of the issuance and sale of capital stock of the Company in the Company’s underwritten initial public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended or (ii) any other transaction (A) that is not a Corporate Transaction and (B) as a result of which a class of shares of the Company or any successor entity is registered under the Securities Exchange Act of 1934, as amended, including a SPAC Transaction.
“SPAC Transaction” means a transaction or a series of related transactions by merger, consolidation, business combination, share exchange or otherwise of the Company with a publicly traded “special purpose acquisition company” (collectively, a “SPAC”), immediately following the consummation of which the common stock or share capital of the SPAC or the ultimate surviving parent entity resulting from such transaction is listed on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace.
5. Prepayment. At any time while this Note remains outstanding, the Company may deliver a written notice to the Purchaser electing to prepay this Note in its entirety (such notice, the “Prepayment Notice”). Any such notice must be given at least 15 days in advance of the proposed date of prepayment. If the Purchaser has not exercised its Optional Conversion Right (as defined below) within 15 days following its receipt of the Prepayment Notice, then the Company may pay the Repayment Amount to the Purchaser in its entirety promptly following the end of such 15-day period. Except as set forth in this Section 5, the Repayment Amount may not be prepaid by the Company at any time, in whole or in part, without the prior written consent of the Purchaser.
6. Optional Conversion by Purchaser. At any time while this Note remains outstanding, the Purchaser may elect, by providing written notice thereof to the Company, to receive, in full satisfaction of the Company’s obligations under this Note, that number of shares of applicable Conversion Stock obtained by dividing (i) the Repayment Amount by (ii) the applicable Conversion Price, rounded down to the nearest whole share (such right of the Purchaser, the “Optional Conversion Right”).
7. Mechanics of Conversion. Upon conversion of this Note pursuant to the terms hereof, the Purchaser shall surrender this Note, duly endorsed, at the principal offices of the Company or any transfer agent of the Company. At its expense, the Company will, as soon as practicable thereafter, issue and deliver to the Purchaser, at such principal office, a certificate or certificates for the number of shares to which the Purchaser is entitled upon such conversion. Upon conversion of this Note pursuant to the terms of this Note, the Company will be forever released from all of its obligations and liabilities under this Note with regard to that portion of the Repayment Amount being converted, including without limitation the obligation to pay such portion of the Repayment Amount.
8. Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser that:
8.1 Organization, Good Standing, Corporate Power and Qualification. The Company 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 carry on its business as presently conducted and as proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business or financial condition.
8.2 Authorization; Enforceability. All corporate action required to be taken by the Board and the Company’s stockholders in order to authorize the Company to issue this Note has been taken. All action on the part of the officers of the Company necessary for the issuance and delivery of this Note has been taken. This Note, when executed and delivered by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their respective terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
8.3 Compliance with Other Instruments. The Company is not in material default or violation of, and neither the authorization, issuance and delivery of the Note, will constitute or result in a material default or violation of any law or regulation applicable to the Company or any material term or provision of the Company’s current Certificate of Incorporation or bylaws (together, the “Organization Documents”) or any material agreement or instrument by which it is bound or to which its properties or assets are subject.
8.4 Due Issuance. All securities to be issued, sold and delivered upon conversion of the Note will be duly authorized and upon such issuance in accordance with the terms of this Note or the Organization Documents, as the case may be, all such securities will be duly authorized, validly issued, fully paid and non-assessable.
9. Purchaser’s Representations and Warranties. The Purchaser hereby represents and warrants to the Company that:
9.1 Authorization. This Note constitutes the Purchaser’s valid and legally binding obligation, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors’ rights and (ii) laws relating to the availability of specific performance, injunctive relief or other equitable remedies. The Purchaser represents that it has full power and authority to enter into this Note.
9.2 Purchase Entirely for Own Account. The Purchaser acknowledges that the issuance of this Note is issued in reliance upon the Purchaser’s representation to the Company that the Note, the Conversion Stock, and any Common Stock issuable upon conversion of the Conversion Stock (collectively, the “Securities”) will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. The Purchaser further represents that the Purchaser does not have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to the Securities.
9.3 Disclosure of Information. The Purchaser acknowledges that it has received all the information it considers necessary or appropriate for deciding whether to acquire the Securities. The Purchaser further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities.
9.4 Investment Experience. The Purchaser is an investor in securities of companies in the development stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities. If other than an individual, the Purchaser also represents it has not been organized solely for the purpose of acquiring the Securities.
9.5 Accredited Investor. The Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D of the Securities and Exchange Commission (the “SEC”), as presently in effect.
9.6 Restricted Securities. The Purchaser understands that the Securities are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Act only in certain limited circumstances. The Purchaser represents that it is familiar with SEC Rule 144, as presently in effect, and understands the resale limitations imposed thereby and by the Act.
9.7 Limitations on Disposition. Without in any way limiting the representations and warranties set forth above, the Purchaser further agrees not to make any disposition of all or any portion of the Securities unless and until the transferee has agreed in writing for the benefit of the Company to be bound by this Section 9.7, and:
(a) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or (i) the Purchaser has notified the Company of the proposed disposition and has furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition and (ii) if reasonably requested by the Company, the Purchaser shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such disposition will not require registration of such shares under the Act.
(b) Purchaser shall not make any disposition of the Note to any biopharmaceutical, medical device or diagnostics company without Company’s consent, provided that Purchaser may make any disposition of the Note in connection with a Change of Control of Purchaser without Company’s consent.
9.8 Note Transfer. The Purchaser agrees not to transfer this Note to any third party; provided, that the Purchaser may transfer this Note to one of its affiliates.
9.9 Market Standoff, Legends. The Purchaser hereby agrees that it will not, (i) without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Public Listing and ending on the date specified by the Company and the managing underwriter (such period not to exceed one hundred eighty (180) days) or (ii) during the one hundred eighty (180) day period commencing on the consummation of a SPAC Transaction, (i) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Conversion Stock that are Common Stock held immediately prior to the effectiveness of the registration statement for such offering, or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of shares of Conversion Stock that are Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. The underwriters in connection with the Company’s Public Listing are intended third party beneficiaries of this Section 9.9 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. The Purchaser further agrees to execute such agreements as may be reasonably requested by the underwriters in connection with the Company’s Public Listing that are consistent with this Section 9.9 or that are necessary to give further effect thereto..
In order to enforce the foregoing covenant, the Company may impose stop transfer instructions with respect to the securities of the Lender (and the shares or securities of every other Person subject to the foregoing restriction) until the end of such period.
It is understood that the Securities may bear the following legend (as well as any other required or appropriate state or federal securities or corporate legends):
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT.”
10. Stockholder Documents. The Purchaser understands and agrees that the conversion of this Note into any Conversion Stock that is preferred stock of the Company may require the Purchaser’s execution of certain agreements in the form agreed to by investors in the Next Equity Financing relating to the purchase and sale of such securities as well as registration, co-sale, rights of first refusal, rights of first offer and voting rights, if any, relating to such securities (collectively, the “Financing Agreements”). The Purchaser hereby agrees to promptly execute and deliver to the Company all Financing Agreements.
11. Termination of Rights. All rights with respect to this Note shall terminate upon a payment or conversion in full of this Note pursuant to Sections 1, 4, 5 or 6 above, whether or not this Note has been surrendered.
| 12. | Default. Each of the following events shall be an “Event of Default” hereunder: |
12.1 The Company fails to timely pay any of the Repayment Amount due hereunder for more than thirty (30) days after the date that it becomes due and payable;
12.2 The Company or any of its subsidiaries executes a general assignment for the benefit of creditors;
12.3 The Company or any of its subsidiaries files a petition or action for relief under any bankruptcy, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing; and
12.4 An involuntary petition is filed against the Company or any of its subsidiaries (unless such petition is dismissed or discharged within 30 days of the filing thereof) under any bankruptcy statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company or any of its subsidiaries.
Subject to the provisions hereof, the Purchaser shall have all rights and may exercise any remedies available to it under law, successively or concurrently. If an Event of Default occurs, the Purchaser may, by notice in writing to the Company, accelerate the Maturity Date and declare this Note to be in default and the Repayment Amount to be immediately due and payable in full, whereupon the Notes shall be repaid in cash.
13. Fractional Shares. No fractional shares shall be issued upon conversion of this Note. In lieu of fractional shares which would otherwise be issuable, the Company shall pay cash equal to the product of such fraction multiplied by the price per share of such securities issued to Purchaser upon such conversion.
14. No Impairment. Except and to the extent as waived or consented to by the Purchaser in accordance with Section 18 below, the Company will not, by amendment of its certificate of incorporation or bylaws or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of any debt or equity securities (or any securities convertible into, or exercisable or exchangeable for, such securities) or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Note in order to protect the rights of the Purchaser hereunder against impairment.
15. Highest Lawful Rate. Anything herein to the contrary notwithstanding, if, during any period for which interest is computed hereunder, the amount of interest computed on the basis provided for in this Note, together with all fees, charges, and other payments or rights which are treated as interest under applicable law, as provided for herein or in any other document executed in connection herewith, would exceed the amount of such interest computed on the basis of the Highest Lawful Rate (as defined below), the Company shall not be obligated to pay, and the Purchaser shall not be entitled to charge, collect, receive, reserve, or take, interest in excess of the Highest Lawful Rate, and during any such period the interest payable hereunder shall be computed on the basis of the Highest Lawful Rate. “Highest Lawful Rate” means the maximum non-usurious rate of interest, as in effect from time to time, which may be charged, contracted for, reserved, received, or collected by the Purchaser in connection with this Note under applicable law. In accordance with this Section 15, any amounts received in excess of the Highest Lawful Rate shall be applied towards the prepayment of the Principal Amount then outstanding.
16. Fees for Collection. If an action is instituted by the Purchaser to collect any amounts owed to such Purchaser under this Note, the Company shall pay all costs and expenses of the Purchaser, including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument except those explicitly set forth in this Note. The Company agrees that any delay on the part of the Purchaser in exercising any rights hereunder will not operate as a waiver of such rights. The Purchaser shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies, and no waiver of any kind shall be valid unless in writing and signed by the party or parties waiving such rights or remedies.
17. Governing Law. This Note shall be governed by and construed under the laws of the State of Delaware as applied to agreements among Delaware residents, made and to be performed entirely within the State of Delaware.
18. Modification; Waiver. Any provision of this Note may be amended or waived only by the written consent of the Company and the Purchaser.
19. Severability. If any provision of this Note is held to be unenforceable under applicable law, such provision shall be excluded from this Note and the balance of the Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
20. Stockholder Status. Nothing contained in this Note shall be construed as conferring upon the Purchaser the right to vote or to receive dividends or to consent or to receive notice as a stockholder in respect of any meeting of stockholders for the election of directors of the Company or of any other matter, or any other rights whatsoever as a stockholder of the Company, prior to conversion hereof.
21. Unsecured Obligation. This Note represents an unsecured general obligation of the Company.
22. Tax Treatment. The parties acknowledge and agree that this Note is intended to be characterized as debt for U.S. federal (and applicable state and local) income tax purposes.
23. Assignment. This Note applies to, inures to the benefit of, and binds the successors and assigns of the parties hereto. Notwithstanding the foregoing or anything to the contrary in this Note, the Company may not assign its obligations under this Note without the prior written consent of the Purchaser. Any transfer of this Note may be effected only pursuant to the terms contained herein and the surrender of this Note to the Company and reissuance of a new note to the transferee. The Purchaser and any subsequent holder of this Note receives this Note subject to the foregoing terms and conditions, and agrees to comply with the foregoing terms and conditions for the benefit of the Company.
24. Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given: (i) upon personal delivery to the party to be notified, (ii) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not so confirmed, then on the next business day, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with an internationally recognized overnight courier, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at the following addresses (or at such other addresses as shall be specified by notice given in accordance with this Section 24):
If to the Company:
259 East Grand Avenue, Suite 3434
South San Francisco, CA 94080,
Attn: Chief Executive Officer
and a copy (which shall not constitute notice) shall also be sent to:
Goodwin Procter LLP, 100 Northern Avenue
Boston,
MA 02210
Attn: Kingsley Taft
If to the Purchaser:
1 DNA Way
South San Francisco, CA 94080
Attn: General Counsel
Email: transxn@gene.com
25. Counterparts. This Note may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, with signatures transmitted by facsimile or .pdf binding as if originally executed.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
In Witness Whereof, the Company and Purchaser have executed this Note as of the date first above written.
| COMPANY | ||
| Freenome Holdings, Inc. | ||
| By: | /s/ Aaron Elliott | |
| Name: Aaron Elliott | ||
| Title: Chief Executive Officer | ||
| PURCHASER | ||
| Roche Holdings, Inc. | ||
| By: | /s/ Gerald Bohm | |
| Name: Gerald Bohm | ||
| Title: Authorized Signatory | ||
[Signature Page to Convertible Promissory Note]
Exhibit 10.18
GENESIS MARINA AT 3000
LEASE
BP3-SF5 3000-3500 MARINA LLC,
a Delaware limited liability company
as Landlord,
and
FREENOME HOLDINGS, INC.,
a Delaware corporation,
as Tenant
SUMMARY OF BASIC LEASE INFORMATION
This Summary of Basic Lease Information (“Summary”) is hereby incorporated into and made a part of the attached Lease. Each reference in the Lease to any term of this Summary shall have the meaning as set forth in this Summary for such term. In the event of a conflict between the terms of this Summary and the Lease, the terms of the Lease shall prevail. Any capitalized terms used herein and not otherwise defined herein shall have the meaning as set forth in the Lease.
| TERMS OF LEASE | ||
| (References are to the Lease) | DESCRIPTION | |
| 1. | Date: | September 23, 2021 |
| 2. | Landlord: |
BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company |
| 3. | Address of Landlord (Section 24.19): |
BP3-SF5 3000-3500 Marina LLC 4380 La Jolla Village Drive, Suite 230 San Diego, CA 92122 Attention: W. Neil Fox, CEO
with a copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP 600 West Broadway, 27th Floor San Diego, California 92101 Attention: Martin L. Togni, Esq.
For payment of Rent only:
BP3-SF5 3000-3500 Marina LLC PO Box _______ Pasadena, CA 91185- _______
|
| 4. | Tenant: |
FREENOME HOLDINGS, INC. a Delaware corporation |
| 5. | Address of Tenant (Section 24.19): |
279 E. Grand Avenue, Fifth Floor South San Francisco, California 94080 Attention: Legal
and:
FREENOME HOLDINGS, INC. 279 E. Grand Avenue, Fifth Floor South San Francisco, California 94080 Attention: Facilities (Prior to Tenant’s occupancy of the Premises) |
|
TERMS OF LEASE (References are to the Lease) |
DESCRIPTION | ||
|
3300 Marina Boulevard Brisbane, CA 94005 Attention: Legal |
|||
| and: | |||
|
3300 Marina Boulevard Brisbane, CA 94005 Attention: Facilities (After Tenant’s occupancy of the Premises) |
|||
| 6. | Premises (Article 1): | ||
| 6.1 | Premises: |
335,419 rentable square feet of space consisting of (i) 197,959 rentable square feet of space located in the entirety of Building I (as defined below) and (ii) 137,460 rentable square feet of space located on the fourth (4th), fifth (5th), sixth (6th) and seventh (7th) levels of Building III (as defined below), all as depicted on Exhibit A attached hereto. That portion of the Premises located in Building I is referred to as the “Building I Premises” and that portion of the Premises located in Building III is referred to as the “Building III Premises.” |
|
| 6.2 | Building: | The Premises are located in the buildings whose addresses are 3300 Marina Boulevard, Brisbane, California (“Building I”) and 3000 Marina Boulevard, Brisbane, California (“Building III”). Building I and Building III are part of the multi-building Project described in Section 1.1.2 below. Building I and Building III are collectively referred to herein as the “Building”. | |
| 7. | Term (Article 2): | ||
| 7.1 | Lease Term: | Eleven (11) years. | |
| 7.2 | Building I Lease Commencement Date: | The earlier to occur of: (i) the date Tenant substantially completes the Tenant Improvements in Building I or (ii) the date that is twelve (12) months after the Building I Delivery Date (as defined in Section 1.2 of Exhibit B). As provided in Section 1.2 of Exhibit B, the anticipated delivery date for Building I is October 10, 2022 (“Anticipated Building I Delivery Date”). | |
| Months of Lease Term (commencing as of the Building I Lease Commencement Date) | Annual Base Rent | Monthly Installment of Base Rent* | Monthly Rental Rate per Rentable Square Foot** | |||
| ***1 – 12 | $15,678,352.80 | $1,306,529.40 | $6.60 | |||
| 13 – 24 | $16,227,095.16 | $1,352,257.93 | $6.83 | |||
| 25 – 36 | $16,795,043.52 | $1,399,586.96 | $7.07 | |||
| 37 – 48 | $17,382,870.00 | $1,448,572.50 | $7.32 | |||
| 49 – 60 | $17,991,270.48 | $1,499,272.54 | $7.57 | |||
| 61 – 72 | $18,620,964.96 | $1,551,747.08 | $7.84 | |||
| 73 – 84 | $19,272,698.76 | $1,606,058.23 | $8.11 | |||
| 85 – 96 | $19,947,243.24 | $1,662,270.27 | $8.40 | |||
| 97 – 108 | $20,645,396.76 | $1,720,449.73 | $8.69 | |||
| 109 – 120 | $21,367,985.64 | $1,780,665.47 | $9.00 | |||
| 121 – 132 | $22,115,865.12 | $1,842,988.76 | $9.31 |
| TERMS OF LEASE | |
| (References are to the Lease) | DESCRIPTION |
*The initial monthly installment of Base Rent amount was calculated by multiplying the initial monthly Base Rent per rentable square foot amount by the number of rentable square feet of space in the Building I Premises, and the Annual Base Rent amount was calculated by multiplying the initial monthly installment of Base Rent amount by twelve (12). In all subsequent Base Rent payment periods during the Lease Term commencing on the first (1st) day of the full calendar month that is Lease Month 13, the calculation of each monthly installment of Base Rent amount reflects an annual increase of three and one-half percent (3.5%) and each Annual Base Rent amount was calculated by multiplying the corresponding monthly installment of Base Rent amount by twelve (12).
**The amounts identified in the column entitled “Monthly Rental Rate per Rentable Square Foot” are rounded amounts provided for information purposes only.
***Subject to abatement as provided in Article 3.
| 8.2 |
Base Rent for Building III (commencing as of the Building III Lease Commencement Date): |
| Months of Lease Term commencing as of the Building III Lease Commencement Date | Annual Base Rent | Monthly Installment of Base Rent* | Monthly Rental Rate per Rentable Square Foot** | |||
| ***1 – 12 | $10,886,832.00 | $907,236.00 | $6.60 | |||
| 13 – 24 | $11,267,871.12 | $938,989.26 | $6.83 | |||
| 25 – 36 | $11,662,246.56 | $971,853.88 | $7.07 | |||
| 37 – 48 | $12,070,425.24 | $1,005,868.77 | $7.32 | |||
| 49 – 60 | $12,492,890.16 | $1,041,074.18 | $7.57 | |||
| 61 – 72 | $12,930,141.36 | $1,077,511.78 | $7.84 | |||
| 73 – 84 | $13,382,696.28 | $1,115,224.69 | $8.11 | |||
| 85 – 96 | $13,851,090.60 | $1,154,257.55 | $8.40 | |||
| 97 – 108 | $14,335,878.72 | $1,194,656.56 | $8.69 | |||
| 109 – 120 | $14,837,634.48 | $1,236,469.54 | $9.00 | |||
| 121 – Lease Expiration Date | $15,356,951.64 | $1,279,745.97 | $9.31 |
| TERMS OF LEASE | |
| (References are to the Lease) | DESCRIPTION |
*The initial monthly installment of Base Rent amount was calculated by multiplying the initial monthly Base Rent per rentable square foot amount by the number of rentable square feet of space in the Building III Premises, and the Annual Base Rent amount was calculated by multiplying the initial monthly installment of Base Rent amount by twelve (12). In all subsequent Base Rent payment periods during the Lease Term commencing on the first (1st) day of the full calendar month that is Lease Month 13, the calculation of each monthly installment of Base Rent amount reflects an annual increase of three and one-half percent (3.5%) and each Annual Base Rent amount was calculated by multiplying the corresponding monthly installment of Base Rent amount by twelve (12).
**The amounts identified in the column entitled “Monthly Rental Rate per Rentable Square Foot” are rounded amounts provided for information purposes only.
***Subject to abatement as provided in Article 3.
Except as provided in Section 2.1 below, during the period of time between the Building I Lease Commencement Date and the Building III Lease Commencement Date, Tenant shall pay Base Rent for Building I in the amount set forth in Section 8.1 of this Summary (if the Building I Lease Commencement Date occurs first) or Section 8.2 of this Summary (if the Building III Lease Commencement Date occurs first), subject to abatement as provided in Article 3 hereof. Except as provided in Section 2.1 below, Tenant shall be bound by all obligations under this Lease (with respect to Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs) as to the Building as to which the first Lease Commencement Date has occurred only during the period of time between the Building I Lease Commencement Date until the Building III Lease Commencement Date, including, but not limited to, Tenant’s obligation to pay Additional Rent, except that (a) if the Building I Lease Commencement Date occurs first, Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs shall be deemed to be 35.32% of the Project, and references in this Lease to Premises and Building shall mean only the Building I Premises and Building I during the period of time from the Building I Lease Commencement Date until the Building III Lease Commencement Date and (b) if the Building III Lease Commencement Date occurs first, Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs shall be deemed to be 24.52% of the Project, and references in this Lease to Premises and Building shall mean only the Building III Premises and Building III during the period of time from the Building III Lease Commencement Date until the Building I Lease Commencement Date. Commencing on the later to occur of the Building I Lease Commencement Date and the Building III Lease Commencement Date, Tenant will pay Base Rent for the entire Premises (in addition to all Additional Rent payable by Tenant under this Lease). Notwithstanding anything above to the contrary, in the event Tenant commences business operations in all or any portion of the Premises then Tenant shall commence to pay Rent with respect to such portion of the Premises including, but not limited to, Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs.
| 9. | Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs (Section 4.2.6): |
Commencing as of the Building I Lease Commencement Date, 35.32% as to the Building I Premises (197,959 rentable square feet within the Building I Premises/560,536 rentable square feet within the Project), and commencing as of the Building III Lease Commencement Date 24.52% as to the Building III Premises (137,460 rentable square feet within the Building III Premises/560,536 rentable square feet within the Project) and commencing upon the later to occur of the Building I Lease Commencement Date and the Building III Lease Commencement Date and thereafter, 59.84% (335,419 rentable square feet within the Premises/560,536 rentable square feet within the Project). |
| TERMS OF LEASE | ||
| (References are to the Lease) | DESCRIPTION | |
| 10. | Letter of Credit (Article 20): | $8,855,061.60. |
| 11. | Brokers (Section 24.25): | Cushman & Wakefield U.S., Inc. representing Landlord, and Jones Lang LaSalle representing Tenant. |
| 12. | Parking (Article 23): | Total of six hundred seventy-one (671) parking passes (2 unreserved parking passes for every 1,000 rentable square feet of the Premises) consisting of six hundred fifty-one (651) unreserved parking passes and twenty (20) reserved parking spaces that do not require a valet (as provided in Article 23). |
| EXHIBITS: | |
| Exhibit A | Outline of Floor Plan of Premises |
| Exhibit A-1 | Site Plan of Project |
| Exhibit B | Tenant Work Letter |
| Exhibit C | Confirmation of Lease Terms/Amendment to Lease |
| Exhibit D | Rules and Regulations |
| Exhibit E | Form of Subordination, Non-Disturbance and Attornment Agreement |
| Exhibit F | Form of Letter of Credit |
| Exhibit G | Storage Areas |
| Exhibit H | Signage |
| Exhibit I | Available Space on Roofs |
| Exhibit J | Management Option Provisions |
| Exhibit K | Breakdown of Expense Estimate |
| Page | ||
| Rider 1 | Extension Option Rider |
| INDEX | |
| Page(s) | |
| Abated Rent | 8 |
| Accountant | 15 |
| Additional Allowance | Exhibit B |
| Additional Rent | 9 |
| Affected Areas | 17 |
| Affiliate Assignee | 34 |
| Affiliates | 34 |
| Allowance Deadline | Exhibit B |
| Allowances | Exhibit B |
| Alterations | 24 |
| Amortization Period | Exhibit B |
| Amortization Rent | Exhibit B |
| Anticipated Building I Delivery Date | ii |
| Anticipated Building III Delivery Date | iii |
| Approved Working Drawings | Exhibit B |
| Bank | 39 |
| Bankruptcy Code | 37, 39 |
| Bank’s Credit Rating Threshold | 39 |
| Base Building | Exhibit B |
| Base Building Punch List Items | Exhibit B |
| Base Rent | 8 |
| Brokers | 48 |
| Building | Summary |
| Building I Delivery Date | Exhibit B |
| Building I Premises | Summary |
| Building III Delivery Date | Exhibit B |
| Building III Premises | Summary |
| Building Structure | Exhibit J |
| Building System | Exhibit J |
| Building Systems | Exhibit J |
| Building Systems Documents | Exhibit J |
| Calendar Year | 9 |
| Capital Improvement Notice | Exhibit J |
| capital in nature | Exhibit J |
| CC&Rs | 16 |
| Change Order | Exhibit B |
| Changes | Exhibit B |
| City | Exhibit B |
| Comparable Buildings | Rider 1 |
| Confirmation/Amendment | Exhibit C |
| Conservation Costs | 10 |
| Construction | 49 |
| Construction Drawings | Exhibit B |
| Contract | Exhibit B |
| Contractor | Exhibit B |
| Controllable Expenses | 14 |
| Coordination Fee | Exhibit B |
| Corrective Action | 17 |
| Cost Pools | 10 |
| Cutoff Date | 13 |
| Delivery Condition | Exhibit B |
| Documents | 17 |
| Election Date | 4 |
| Page(s) | |
| Electric Vehicle Charging Agreement | 5 |
| Eligibility Period | 22 |
| Emergency | 24, Exhibit J |
| Engineers | Exhibit B |
| Environmental Law | 16 |
| Environmental Permits | 16 |
| Estimate | 13 |
| Estimate Statement | 13 |
| Estimated Expenses | 13 |
| Estimated Repair Completion Date | 29 |
| Excluded Changes | 42 |
| Excluded Work | Exhibit B |
| Exercise Date | Rider 1 |
| Exercise Notice | Rider 1 |
| Exit Survey | 34 |
| Expense Year | 9 |
| Experience | Schedule 1, Exhibit J |
| Extension Option | Rider 1 |
| Extension Rider | Rider 1 |
| Fair Market Rental Rate | Rider 1 |
| Final Condition | Exhibit B |
| Final Condition Date | Exhibit B |
| Final Costs | Exhibit B |
| Final Costs Statement | Exhibit B |
| Final Retention | Exhibit B |
| Final Space Plan | Exhibit B |
| Final Working Drawings | Exhibit B |
| First Refusal Economic Terms | 4 |
| First Refusal Notice | 4 |
| First Refusal Space | 4 |
| Fitness Center | 3 |
| Fitness Center Users | 3 |
| Force Majeure | 47 |
| Generator | 22 |
| Generator Equipment | 22 |
| Governmental Approvals | 45 |
| Hazardous Materials | 16 |
| Hazardous Materials List | 17 |
| Holidays | 20 |
| HVAC | 20 |
| Interest Notice | Rider 1 |
| Interest Rate | 14 |
| Invoice Notice | 24, Exhibit J |
| Landlord | 1 |
| Landlord Charging Stations | 5 |
| Landlord Delay | Exhibit B |
| Landlord Parties | 3, 19 |
| Landlord’s Capital Improvements | Exhibit J |
| Landlord’s Response Notice | 24, Exhibit J |
| L-C | 39 |
| L-C Amount | 39 |
| L-C Draw Event | 39 |
| L-C Expiration Date | 39 |
| L-C FDIC Replacement Notice | 39 |
| L-C Reduction Amount | 42 |
| Page(s) | |
| L-C Reduction Condition |
42 |
| Lease | 1 |
| Lease Commencement Date | 5 |
| Lease Expiration Date | 5 |
| Lease Term | 5 |
| Lease Year | 6 |
| Management Option | 24 |
| Management Standard | Exhibit J |
| Minor Alterations | 25 |
| New Pandemic Exceptions | 6 |
| Non-Reimbursable Capital Improvements | Exhibit J |
| Notices | 47 |
| Objectionable Name | 45 |
| OFAC | 48 |
| Operating Expenses | 9 |
| Option Rent | Rider 1 |
| Option Rent Notice | Rider 1 |
| Option Term | Rider 1 |
| Original Tenant | 5 |
| Other Buildings | 1, 13 |
| Outside Agreement Date | Rider |
| Outside Termination Date | 7 |
| Over-Allowance Amount | Exhibit B |
| Parking Areas | 1 |
| Parking Operator | 43 |
| Payment Notice | Exhibit B |
| Premises | 1 |
| Premises Systems | 23 |
| Prior Space Plan | Exhibit B |
| Prohibited Alterations | 24 |
| Project | 1 |
| Proposition 13 | 11 |
| Reduction Date | 42 |
| Refusal Notice | Exhibit B |
| Reimbursable Capital Improvements | 10 |
| Release | 16 |
| Rent | 9 |
| Rent Commencement Date | Exhibit C |
| rentable square feet | 3 |
| Repair Notice | 24, Exhibit J |
| Revenue Code | 32 |
| Review Period | 15 |
| Right of First Refusal Period | 3 |
| ROFR Exercise Notice | 4 |
| Rooftop Equipment | 50 |
| Schedule | Exhibit B |
| Second Chance Economic Terms | 4 |
| Second Chance Notice | 4 |
| Security Deposit Laws | 41 |
| Sensor Areas | 50 |
| Service Agreements | Exhibit J |
| Service Provider | Schedule 1, Exhibit J |
| Service Providers | Schedule 1, Exhibit J |
| Sierra | 16 |
| Site Operations Manager | Exhibit J |
| Page(s) | |
| Specified Engineers |
Exhibit J |
| Statement | 12 |
| Storage Areas | 51 |
| Subject Space | 31 |
| Subleasing Costs | 33 |
| Summary | i |
| Systems and Equipment | 11 |
| Takeover Date | 24 |
| Tax Expenses | 11 |
| Tenant | 1 |
| Tenant Delays | Exhibit B |
| Tenant Deliverables | Exhibit B |
| Tenant Funded Capital Improvements, | Exhibit J |
| Tenant Improvement Allowance | Exhibit B |
| Tenant Improvements | Exhibit B |
| Tenant Work Letter | Exhibit B |
| Tenant’s Agents | Exhibit B |
| Tenant’s Employees | Exhibit J |
| Tenant’s Parties | 16 |
| Tenant’s Share | 12 |
| Tenant’s Signage | 45 |
| Terminated Space | 7 |
| Termination Date | 7 |
| Termination Notice | 7 |
| Termination Option | 7 |
| Test Fit Allowance | Exhibit B |
| TI Delay Notice | Exhibit B |
| Transfer Notice | 31 |
| Transfer Premium | 33 |
| Transferee | 31 |
| Transfers | 31 |
| Utilities Costs | 12 |
| Water Sensors | 50 |
| Wi-Fi Network | 26 |
LEASE
This Lease, which includes the preceding Summary and the exhibits attached hereto and incorporated herein by this reference (the Lease, the Summary and the exhibits to be known sometimes collectively hereafter as the “Lease”), dated as of the date set forth in Section 1 of the Summary, is made by and between BP3-SF5 3000-3500 Marina LLC, a Delaware limited liability company (“Landlord”), and FREENOME HOLDINGS, INC., a Delaware corporation (“Tenant”).
PROJECT, BUILDING AND PREMISES
1.1 Project, Building and Premises.
1.1.1 Premises. Upon and subject to the terms, covenants and conditions hereinafter set forth in this Lease, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the premises described in Section 6.1 of the Summary (the “Premises”), which Premises are located in the Building (as defined in Section 6.2 of the Summary) and located within the Project (as defined below). The floor plan of the Premises is attached hereto as Exhibit A.
1.1.2 Building and Project. Building I consists of five (5) occupiable levels with a total of 197,959 rentable square feet and Building III consists of six (6) occupiable levels with a total of 194,702 rentable square feet. Building I and Building III are part of a multi-building commercial project known as “Genesis Marina”, located in the City of Brisbane. The term “Project” as used in this Lease, shall mean, collectively: (i) Building I; (ii) Building III; (iii) the other building located at 3500 Marina Blvd. within the site (the “Other Building”); (iii) any outside plaza areas, walkways, driveways, courtyards, public and private streets, transportation facilitation areas and other improvements and facilities now or hereafter constructed surrounding and/or servicing the Building and/or the Other Building, which are designated from time to time by Landlord (and/or any other owners of the Project) as common areas appurtenant to or servicing the Building, the Other Building and any such other improvements; (iv) any additional buildings, improvements, facilities and common areas which Landlord (any other owners of the Project and/or any common area association formed by Landlord, Landlord’s predecessor-in-interest and/or Landlord’s assignee for the Project) may add thereto from time to time within or as part of the Project; and (v) the land upon which any of the foregoing are situated. The site plan depicting the current configuration of the Project is attached hereto as Exhibit A-1. The Building, as well as the Other Building contain parking areas (“Parking Areas”). Notwithstanding the foregoing or anything contained in this Lease to the contrary, (1) Landlord has no obligation to expand or otherwise make any improvements within the Project, including, without limitation, any of the outside plaza areas, walkways, driveways, courtyards, public and private streets, transportation facilitation areas and other improvements and facilities which may be depicted on Exhibit A-1 attached hereto (as the same may be modified by Landlord (and/or any other owners of the Project) from time to time without notice to Tenant), other than Landlord’s obligations (if any) specifically set forth in the Tenant Work Letter attached hereto as Exhibit B, and (2) Landlord (and/or any other owners of the Project) shall have the right from time to time to include or exclude any improvements or facilities within the Project, at such party’s sole election, subject to Section 1.1.3 below. Subject to (i) the terms and conditions of this Lease, including the Rules and Regulations attached hereto as Exhibit D, (ii) Force Majeure events (as defined in Section 24.17 below), (iii) Landlord’s commercially reasonable security requirements, and (iv) the requirements of applicable laws, Tenant shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week throughout the Lease Term.
1.1.3 Tenant’s and Landlord’s Rights. Tenant shall have the right to the nonexclusive use of the common corridors and hallways, stairwells, elevators (if any), restrooms and other public or common areas located within the Building, and the non-exclusive use of those areas located on the Project that are designated by Landlord (and/or any other owners of the Project) from time to time as common areas for the Building or the Project, and access to all planned and future amenities located within the Project; provided, however, that (i) Tenant’s use thereof shall be subject to (A) the provisions of any covenants, conditions and restrictions regarding the use thereof now or hereafter recorded against the Project, and (B) such reasonable, non-discriminatory rules and regulations as Landlord may make from time to time (which shall be provided in writing to Tenant), and (ii) except as needed to exercise its rights under Section 24.35, Tenant may not go on the roof of Building or the Other Building without Landlord’s prior consent (which may be withheld in Landlord’s sole and absolute (but good faith) discretion) and without otherwise being accompanied by a representative of Landlord. Subject to Tenant’s roof rights in Section 24.35, Landlord (and/or any other owners of the Project) reserve the right from time to time to use any of the common areas of the Project, and the roof, risers and conduits of Building III and the Other Building for telecommunications and/or any other purposes, and to do any of the following, so long as the same does not unreasonably interfere with Tenant’s use of or access to the Premises or Tenant’s parking rights and does not materially increase the obligations or materially decrease the rights of Tenant under this Lease: (1) make any changes, additions, improvements, repairs and/or replacements in or to the Project or any portion or elements thereof, including, without limitation, (x) changes in the location, size, shape and number of driveways, entrances, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways, public and private streets, plazas, courtyards, transportation facilitation areas and common areas, and (y) expanding or decreasing the size of the Project and any common areas and other elements thereof, including adding, deleting and/or excluding buildings (including the Other Building) thereon and therefrom; (2) close temporarily (i.e., for less than one week) any of the common areas while engaged in making repairs, improvements or alterations to the Project; (3) retain and/or form a common area association or associations under covenants, conditions and restrictions to own, manage, operate, maintain, repair and/or replace all or any portion of the landscaping, driveways, walkways, public and private streets, plazas, courtyards, transportation facilitation areas and/or other common areas located outside of the Building and the Other Building and, subject to Article 4 below, include the common area assessments, fees and taxes charged by the association(s) and the cost of maintaining, managing, administering and operating the association(s), in Operating Expenses or Tax Expenses; and (4) perform such other acts and make such other changes with respect to the Project as Landlord may, in the exercise of good faith business judgment, deem to be appropriate. Notwithstanding the foregoing, (a) Landlord shall use commercially reasonable efforts to complete and open on or before the first to occur of the Building I Lease Commencement Date and the Building III Lease Commencement Date (or as soon thereafter as reasonably possible) the conference center in Building III, the Fitness Center below Building III, and the café and restaurant on the first floor of Building III; and Tenant shall have the right to use the Fitness Center, conference center and restaurant throughout the Lease Term, subject to Landlord’s right to relocate the same to other portions of the Project and (b) Tenant shall have the exclusive right to use the balconies in Building I and on the floors of Building III in which the Premises are located. Landlord shall use commercially reasonable efforts to not permit any unreasonable noise, vibration, odors or other nuisances to enter the Premises from the café, Fitness Center and restaurant. Landlord shall endeavor to collaborate with Tenant regarding any planned Project amenities (to avoid redundancy).
1.2 Condition of Premises. Except as expressly set forth in this Lease and in the Tenant Work Letter, Landlord shall not be obligated to provide or pay for any improvement, remodeling or refurbishment work or services related to the improvement, remodeling or refurbishment of the Premises, and Tenant shall accept the Premises in its “As Is” condition on the applicable Lease Commencement Date; provided, however, in the event that, during the first twelve (12) months after the applicable Lease Commencement Date, the Base Building (as defined in Section 1 of Exhibit B), which includes the Systems and Equipment, the base building HVAC, plumbing, life safety and electrical systems of the Building as well as the Building parking lot, roof and roof membrane, in its condition existing as of such date (A) does not comply with applicable laws, seismic, fire and life safety codes, and the ADA, in effect as of the date hereof, or (B) contains defects, then Landlord shall be responsible, at its sole cost and expense which shall not be included in Operating Expenses (except as otherwise permitted in Section 4.2 hereof), for correcting any such non-compliance to the extent required by applicable laws, and/or correcting any such defects as soon as reasonably possible after receiving notice thereof from Tenant. Notwithstanding the foregoing, if Tenant fails to give Landlord written notice of any such defects described in clause (B) hereinabove within twelve (12) months after the applicable Lease Commencement Date, then the correction of any such defects shall, subject to Landlord’s repair obligations in Section 7.2 hereof (and to the extent such correction is a responsibility of Tenant pursuant to Section 7.1 hereof), be Tenant’s responsibility at Tenant’s sole cost and expense. Tenant also acknowledges that, except as otherwise expressly set forth in this Lease, neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises, the Building, or the Project or their condition, or with respect to the suitability thereof for the conduct of Tenant’s business (including, but not limited to, any zoning/conditional use permit requirements which shall be Tenant’s responsibility and Tenant’s failure to obtain any such zoning/use permits (if any are required) shall not affect Tenant’s obligations under this Lease). Subject to Landlord’s delivery obligations hereunder, the taking of possession of the Premises by Tenant shall conclusively establish that the Premises, the Building and the Project were at such time complete and in good, sanitary and satisfactory condition and without any obligation on Landlord’s part to make any alterations, upgrades or improvements thereto. For purposes of Section 1938(a) of the California Civil Code, Landlord hereby discloses to Tenant, and Tenant hereby acknowledges, that the Premises have not undergone inspection by a Certified Access Specialist (CASp). In addition, the following notice is hereby provided pursuant to Section 1938(e) of the California Civil Code:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
1.3 Rentable Square Feet. The rentable square feet of the Premises is approximately as set forth in Section 6.1 of the Summary. Such square footage figure shall be binding on Landlord and Tenant for the entire Lease Term absent a casualty or condemnation that affects the actual size of the Premises or an actual change in the size of the Building or the Project. In any such event, the rentable square feet of the Premises and the Building shall be calculated by Landlord using a commercially reasonable measurement method that is substantially consistent with then industry custom and practice.
1.4 Fitness Center.
1.4.1 Fitness Center. Provided Tenant’s employees execute landlord’s standard waiver of liability form, during the term of this Lease Tenant’s employees (the “Fitness Center Users”) shall be entitled to use the fitness center (the “Fitness Center”) in the Project at no additional charge. The use of the Fitness Center shall be subject to the rules and regulations (including rules regarding hours of use) established from time to time by landlord for the Fitness Center. Landlord and Tenant acknowledge that the use of the Fitness Center by the Fitness Center Users shall be at their own risk and that for purposes of Section 10.1, the use of the Fitness Center by Tenant’s employees shall constitute a use of the Project by Tenant. The costs of operating, maintaining and repairing the Fitness Center may be included in Operating Expenses. Subject to Force Majeure events and Landlord’s rights set forth below, Landlord shall continuously maintain the Fitness Center (or any other fitness facility) throughout the term of this Lease. During the Lease, Landlord shall have the right to reconfigure/relocate the Fitness Center in its discretion; provided that the size of the Fitness Center is not materially smaller in size than the Fitness Center initially constructed by Landlord.
1.4.2 Release. Subject to the foregoing, Tenant hereby unconditionally releases Landlord and its property manager and their respective officers, directors, employees, representatives and agents (collectively, “Landlord Parties”), from all fines, suits, losses, liabilities, expenses, claims, costs (including attorneys’ fees and court costs) demands, actions, or causes of actions, of any kind without regard to the cause or causes thereof, or the negligence of one or more of the Landlord Parties, for damage to property, or injury or death to any person arising from, growing out of, or in any way related to the use of the Fitness Center by Tenant, its officers, directors, shareholders, partners, members, managers, employees, agents, invitees, visitors, licensees and customers, in addition, Tenant waives any claims it may have against the Landlord Parties arising out of or related to loss (by theft or otherwise) or damage to any property brought to the Fitness Center by Tenant or its officers, directors, shareholders, partners, members, managers, employees, agents, invitees, visitors, licensees and customers. Tenant expressly waives all rights under the provisions of Section 1542 of the California Civil Code, Section 1542 of the California Civil Code provides that “A general release does not extend to claims which the creditor does not know or expect to exist in his favor at the time of executing the release which, if known by him, must have materially affected his settlement with the debtor.”
1.5 Right of First Refusal. Commencing as of the thirty-seventh (37th) monthly anniversary of the Building I Lease Commencement Date (“Right of First Refusal Period”), Tenant shall have an ongoing (subject to the terms hereof) right of first refusal with respect to space located on the third (3rd) floor of Building III (the “First Refusal Space”). During the period from the date hereof and continuing until the commencement of the Right of First Refusal Period, Landlord shall have the right to lease the First Refusal Space for third party leases expiring, unless Tenant has exercised Tenant’s Termination Option (in which case there shall be no such term limitations), on or before the commencement of the Right of First Refusal Period, as defined below (and Landlord shall not be obligated to provide Tenant with any First Refusal Notice during such period); provided, however, in the event Tenant exercises Tenant’s Termination Option with respect to any portion of Building III then Tenant’s right of first refusal shall commence on August 1, 2022. Tenant’s right of first refusal shall be on the terms and conditions set forth in this Section 1.5.
1.5.1 Procedure for Refusal. Between the 37th and 48th months following the Building I Lease Commencement Date, Landlord shall offer the First Refusal Space for lease to third parties. During the Right of First Refusal Period, Landlord shall notify Tenant (the “First Refusal Notice”) when Landlord receives a bona fide offer from a prospective third party tenant that Landlord is willing to accept for the First Refusal Space and/or when Landlord intends to submit a bona fide counteroffer which Landlord would be willing to accept and, to Landlord’s actual knowledge, the prospective third party tenant would accept. The economic terms and conditions of Tenant’s lease of such First Refusal Space shall be as provided in Landlord’s First Refusal Notice (“First Refusal Economic Terms”).
1.5.2 Procedure for Acceptance. If Tenant wishes to exercise Tenant’s right of first refusal with respect to the space described in the First Refusal Notice, then within seven (7) days after delivery of the First Refusal Notice to Tenant (“Election Date”), Tenant shall deliver an unconditional, irrevocable notice (“ROFR Exercise Notice”) to Landlord of Tenant’s exercise of its right of first refusal with respect to the entire space described in the First Refusal Notice and on the First Refusal Economic Terms contained therein. If Tenant does not exercise its right of first refusal within such seven (7) day time period (on all of the First Refusal Economic Terms), then Landlord shall be free to lease the space described in the First Refusal Notice to anyone to whom Landlord desires on any terms Landlord desires; provided, however, that if Landlord intends to enter into a lease upon First Refusal Economic Terms which are, in the aggregate, materially more favorable to a prospective tenant than those First Refusal Economic Terms proposed by Landlord in the First Refusal Notice to Tenant, then Landlord shall first deliver written notice to Tenant (“Second Chance Notice”) providing Tenant with the opportunity to lease the First Refusal Space on such more favorable First Refusal Economic Terms (such more favorable terms in the Second Chance Notice are referred to herein as the “Second Chance Economic Terms”). For purposes hereof, Second Chance Economic Terms shall be materially more favorable to a third party if such Second Chance Economic Terms reflect a net effective rental rate (including any rent abatement and tenant improvement costs/allowance and any other economic concessions) less than ninety-five percent (95%) of the net effective rental rate for such First Refusal Space as the First Refusal Economic Terms initially proposed by Landlord in the First Refusal Notice. Tenant’s failure to elect to lease the First Refusal Space upon such Second Chance Economic Terms by written notice to Landlord within seven (7) days after Tenant’s receipt of such Second Chance Notice from Landlord shall be deemed to constitute Tenant’s election not to lease such space upon such Second Chance Economic Terms, in which case Landlord shall be entitled to lease such space to any third party on any terms Landlord desires subject to Landlord’s obligations to deliver Tenant a further Second Chance Notice under the circumstances set forth in the preceding two (2) sentences. Notwithstanding anything to the contrary contained herein, Tenant must elect to exercise its right of first refusal, if at all, with respect to all of the space comprising the First Refusal Space (but only space located in the Project) offered by Landlord to Tenant at any particular time (including any space in the Project which is not part of the First Refusal Space), and Tenant may not elect to lease only a portion thereof or, except as provided in Section 1.5.4 below, object to any of the First Refusal Economic Terms.
1.5.3 Construction of First Refusal Space. Tenant shall take the First Refusal Space in its “As-Is” condition (except as otherwise provided in the First Refusal Notice), and Tenant shall be entitled to construct improvements in the First Refusal Space at Tenant’s expense, in accordance with and subject to the provisions of Article 8 of this Lease.
1.5.4 Lease of First Refusal Space. If Tenant timely exercises Tenant’s right to lease the First Refusal Space as set forth herein, Landlord and Tenant shall execute an amendment adding such First Refusal Space to this Lease upon the First Refusal Economic Terms set forth in Landlord’s First Refusal Notice and upon the same non-economic terms and conditions as applicable to the Premises then leased by Tenant under this Lease. Unless otherwise specified in the First Refusal Notice, Tenant shall commence payment of rent for the First Refusal Space and the Lease Term of the First Refusal Space shall commence upon the date of delivery of such First Refusal Space to Tenant. The Lease Term for the First Refusal Space shall be as provided in the First Refusal Economic Terms; provided, however, notwithstanding the First Refusal Economic Terms, in the event the term of the lease for the First Refusal Space is shorter than the term of this Lease, then Tenant shall have the right, in the ROFR Exercise Notice, to lengthen the term of the First Refusal Space such that the term for the First Refusal Space will be coterminous with the Lease Term.
1.5.5 No Defaults. The rights contained in this Section 1.5 shall be personal to the original Tenant executing this Lease (“Original Tenant”) and any Affiliate Assignee, and may not be exercised by the Original Tenant or such Affiliate Assignee (and not any other assignee, sublessee or other transferee of the Original Tenant’s interest (or Affiliate Assignee’s interest) in this Lease) if the Original Tenant or such Affiliate Assignee has subleased more than twenty-five percent (25%) of the Premises then leased by Original Tenant or such Affiliate Assignee as of the date of Tenant’s exercise of its right of first refusal. In addition, at Landlord’s option and in addition to Landlord’s other remedies set forth in this Lease, at law and/or in equity, Tenant shall not have the right to lease the First Refusal Space as provided in this Section 1.5 if, as of the date of the First Refusal Notice, or, at Landlord’s option, as of the scheduled date of delivery of such First Refusal Space to Tenant, Tenant is in default under this Lease beyond the expiration of all applicable notice and cure periods.
1.5.6 Remedy. The sole remedy of Tenant for a breach by Landlord of its obligations under this Section 1.5 shall be an action against Landlord for direct damages (excluding consequential and punitive damages), and for a temporary restraining order, preliminary injunction, injunction or specific performance, but no other remedy, equitable or otherwise.
1.6 Landlord Charging Stations. Landlord shall install, at Landlord’s sole cost, not less than forty (40) electric vehicle charging stations at the Project for the use, on a first-come, first-served basis, of persons working at the Project who drive electric vehicles (“Landlord Charging Stations”). No Tenant Party shall have the right to use the Landlord Charging Stations prior to the execution by such Tenant Party of a written agreement prepared by Landlord governing such person’s right to use the Landlord Charging Stations (the “Electric Vehicle Charging Agreement”). The terms and conditions of the Electric Vehicle Charging Agreement shall be reasonably acceptable to Landlord, in Landlord’s reasonable discretion. The cost of installing, operating, maintaining and repairing the Landlord Charging Stations may be included in Operating Expenses, less any revenue received by Landlord therefrom. Landlord will continuously maintain during the term of this Lease Landlord Charging Stations and use commercially reasonable efforts to monitor their usage to ensure efficient use thereof, but Landlord shall have the right without liability to Tenant, in Landlord’s reasonable discretion, to change the type or location of Landlord Charging Stations from time to time. Tenant’s obligations under this Lease are not contingent or conditioned upon the ability of Tenant Parties to use the Landlord Charging Stations or upon the existence of Landlord Charging Stations. Subject to Tenant’s compliance with the terms and conditions of Article 8, Landlord hereby approves, in concept, of Tenant installing electric vehicle charging stations in Tenant’s reserved parking spaces.
LEASE TERM AND TENANT’S PARTIAL TERMINATION OPTION
2.1 Lease Term. The terms and provisions of this Lease shall be effective as of the date of this Lease except for the provisions of this Lease relating to the payment of Rent, and Tenant’s obligations under Articles 7, 10.1, and 21 (or any other performance obligation that tenants typically perform only after the Lease Commencement Date), provided, however, that in the event Tenant commences business operations in any portion of the Premises, then Tenant shall commence to pay Rent with respect to such portion of the Premises including, but not limited to, Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs. The term of this Lease (the “Lease Term”) shall be as set forth in Section 7.1 of the Summary and shall commence as to the Building I Premises on the Building I Lease Commencement Date set forth in Section 7.2 of the Summary and as to the Building III Premises on the Building III Commencement Date set forth in Section 7.3 of the Summary. For purposes of this Lease, the term “Lease Commencement Date” shall have the same meaning as the first to occur of the Building III Lease Commencement Date and the Building I Lease Commencement Date (the “Lease Commencement Date”) set forth in Section 7.2 of the Summary (subject, however, to the terms of the Tenant Work Letter), and shall terminate on the date (the “Lease Expiration Date”) set forth in Section 7.4 of the Summary, unless this Lease is sooner terminated as hereinafter provided. For purposes of this Lease, the term “Lease Year” shall mean each consecutive twelve (12) month period during the Lease Term, provided that the last Lease Year shall end on the Lease Expiration Date.
2.1.1 Delay in “Delivery Condition” Delivery. If Landlord does not deliver possession of the Building I Premises to Tenant on or before the Anticipated Building I Delivery Date in the condition required in Exhibit B attached hereto, Landlord shall not be subject to any liability nor shall the validity of this Lease nor the obligations of Tenant hereunder be affected; provided that if Landlord does not deliver possession of (a) the Building I Premises to Tenant in the Delivery Condition on or before the sixtieth (60th) day following the Anticipated Building I Delivery Date (set forth in Section 7.2 of the Summary), subject to deferral for any Tenant Delays and any Force Majeure delays (as defined in Section 24.17 hereof but not to exceed ninety (90) days of Force Majeure delays for reasons other than regulations and restrictions related to COVID-19 or any variant thereof or other pandemic not in effect as of the date hereof (collectively, the “New Pandemic Exceptions”), then Tenant shall receive one (1) Free Rent Day (as hereinafter defined) for each day that elapses from and after the sixtieth (60th) day following the Anticipated Building I Delivery Date until and including the date on which Landlord delivers possession of the Building I Premises to Tenant in the Delivery Condition, and (b) the Building I Premises to Tenant in the Delivery Condition on or before the one hundred twentieth (120th) day following the Anticipated Building I Delivery Date (set forth in Section 7.2 of the Summary), subject to deferral for any Tenant Delays and any Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions), then Tenant shall receive two (2) Free Rent Days for each day that elapses from and after the one hundred twentieth (120th) day following the Anticipated Building I Delivery Date until and including the date on possession of the Building I Premises to Tenant in the Delivery Condition; (c) the Building III Premises to Tenant in the Delivery Condition on or before the sixtieth (60th) day following the Anticipated Building III Delivery Date (set forth in Section 7.3 of the Summary), subject to deferral for any Tenant Delays and any Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions), then Tenant shall receive one (1) Free Rent Day (as hereinafter defined) for each day that elapses from and after the sixtieth (60th) day following the Anticipated Building III Delivery Date until and including the date on which Landlord delivers possession of the Building III Premises to Tenant in the Delivery Condition; and (d) the Building III Premises to Tenant in the Delivery Condition on or before the one hundred twentieth (120th) day following the Anticipated Building III Delivery Date (set forth in Section 7.3 of the Summary), subject to deferral for any Tenant Delays and any Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions), then Tenant shall receive two (2) Free Rent Days for each day that elapses from and after the one hundred twentieth (120th) day following the Anticipated Building III Delivery Date until and including the date on possession of the Building III Premises to Tenant in the Delivery Condition. In addition, if Landlord has not delivered the Building I Premises to Tenant in the Delivery Condition on or before the two hundred seventieth (270th) day following the Anticipated Building I Delivery Date (as such time period shall be extended due to any Tenant Delays and Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions)) or the Building III Premises to Tenant in the Delivery Condition on or before the two hundred seventieth (270th) day following the Anticipated Building III Delivery Date (as such time period shall be extended due to Tenant Delays and Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions)), Tenant (i) shall have the right to terminate this Lease as to the entire Premises or (ii) in the event of a delay in the delivery of the second Building Lease Commencement Date, shall have the right to terminate this Lease as to only second Building, in either case by written notice to Landlord (sent, if at all, no later than ten (10) days after the applicable outside date), whereupon all deliveries previously provided by Tenant to Landlord applicable to the portion of the Premises so terminated shall be promptly returned to Tenant. A “Free Rent Day” means a day for which Tenant has no obligation to pay Base Rent nor Additional Rent as to the Building I Premises after the Building I Anticipated Lease Commencement Date or as to the Building III Premises after the Building III Anticipated Lease Commencement Date, and all Free Rent Days shall be applied as soon as possible following the applicable Lease Commencement Date (and the full amount of the Abated Rent shall be applied thereafter).
2.1.2 Delay in Second Building Delivery. If the Delivery Date as to the second Building has not occurred within three hundred sixty-five (365) days of the Delivery Date as to the first Building (as such time period shall be extended due to Tenant Delays and Force Majeure delays (but not to exceed one hundred twenty (120) days for reasons other than the New Pandemic Exceptions)), then Tenant shall receive one (1) Free Rent Day as to the first Building for each day that elapses from thereafter until the Delivery Date as to the second Building occurs.
2.1.3 Delay in Construction Milestones. Notwithstanding anything contained in this Lease to the contrary and in addition to Tenant’s other rights and remedies, if the topping out of steel in a Building has not occurred within two hundred seventy (270) days of the date set forth in Landlord’s Schedule (defined in Exhibit B) (as such time period shall be extended due to Tenant Delays and Force Majeure delays (but not to exceed one hundred twenty (120) days for reasons other than the New Pandemic Exceptions)), then in addition to Tenant’s other rights or remedies, Tenant may terminate this Lease by written notice to Landlord, whereupon any monies previously paid by Tenant to Landlord shall be reimbursed to Tenant.
2.1.4 Amenities Delivery Delays. Notwithstanding anything above to the contrary, (i) in the event the Fitness Center is not substantially completed by Landlord and operational on or before the date Tenant has substantially completed the Tenant Improvements in the Premises and commenced business operations in the Premises, then Tenant shall be entitled to a Base Rent credit equal to Fifty Thousand Dollars ($50,000.00) per month and (ii) in the event the café and restaurant are not substantially completed by Landlord and operational on or before the date Tenant has substantially completed the Tenant Improvements in the Premises and commenced business operations in the Premises, then Tenant shall be entitled to a Base Rent credit equal to Fifty Thousand Dollars ($50,000.00) per month; such Base Rent credits shall be prorated for partial months.
2.1.5 Other Terms. Following the applicable Lease Commencement Date, Landlord shall deliver to Tenant an amendment in the form as set forth in Exhibit C, attached hereto, setting forth, among other things, the applicable Lease Commencement Date and, with regard to an amendment memorializing the later to occur of the Building III Lease Commencement Date and the Building I Lease Commencement Date only, the Lease Expiration Date, which amendment Tenant shall execute and return to Landlord within ten (10) business days after Tenant’s receipt thereof. If Tenant fails to execute and return the amendment within such 10-business day period, Tenant shall be deemed to have approved and confirmed the dates set forth therein, provided that such deemed approval shall not relieve Tenant of its obligation to execute and return the amendment (and such failure shall constitute a default by Tenant hereunder after the expiration of all applicable notice and cure periods).
2.2 Tenant’s Partial Termination Option. Provided Tenant fully and completely satisfies each of the conditions set forth in this Section 2.2, Tenant shall have the one-time option (“Termination Option”) to terminate Tenant’s lease of Building III (or terminate any contiguous full floor increment leased by Tenant in Building III) effective as of the date set forth in Tenant’s Termination Notice (the “Termination Date”), but no later than July 31, 2022 (the “Outside Termination Date”).
2.2.1 Termination Exercise. In order to exercise the Termination Option, Tenant must fully and completely satisfy each and every one of the following conditions: (i) Tenant must give Landlord written notice (“Termination Notice”) of its exercise of the Termination Option, which Termination Notice must be delivered to Landlord at least ten (10) business days prior to the Termination Date (and which Termination Notice shall specify the portion(s) of Building III which is being terminated) (the “Terminated Space”) and (ii) at the time of the Termination Notice, Tenant shall not be in default under this Lease after expiration of applicable cure periods.
2.2.2 Base Rent Adjustment. If Tenant exercises the Termination Option, Base Rent in Section 8.2 of the Summary shall be adjusted to remove the square footage of the Terminated Space. In the event the Termination Space consists of the entire Premises located in Building III, then the initial Base Rent set forth in Section 8.1 of the Summary shall be increased by Fourteen Cents ($0.14) per rentable square foot per month. In the event the Termination Space consists of three (3) floors in Building III, the initial Base Rent set forth in Section 8 of the Summary shall be increased by Twelve Cents ($0.12) per rentable square foot per month. In the event the Termination Space consists of two (2) floors in Building III, then the initial Base Rent set forth in Section 8 of the Summary shall be increased by Ten Cents ($0.10) per rentable square foot per month. In the event the Termination Space consists of one (1) floor in Building III, then the initial Base Rent set forth in Section 8 of the Summary shall be increased by Eight Cents ($0.08) per rentable square foot per month. Any such increase in Base Rent shall, at Landlord’s option, be memorialized in an amendment to this Lease (which Tenant shall execute within ten (10) business days after receipt thereof).
2.2.3 Reduction of Allowances. In the event of any such termination pursuant to this Section 2.2, the Tenant Improvement Allowance, and, if applicable, the Additional Allowance shall be deemed reduced on a proportionate basis based on the reduction of rentable square feet in the Premises. Any such reduction in the Tenant Improvement Allowance, and, if applicable, the Additional Allowance shall, at Landlord’s option, be memorialized in an amendment to this Lease (which Tenant shall execute within ten (10) business days after receipt thereof). In the event Landlord has, prior to the Termination Date, disbursed any portion of the Tenant Improvement Allowance and/or the Additional Allowance pertaining to the Terminated Space then such disbursed amount shall be deducted from any remaining portion of the Tenant Improvement Allowance and Additional Allowance.
2.2.4 General. If Tenant properly and timely exercises its Termination Option in this Section 2.2 in strict accordance with the terms hereof, this Lease (as it pertains to the Terminated Space which is the subject of the Termination Option) shall expire at midnight on the Termination Date. Upon such termination of this Lease (as it pertains to the applicable portion of the Terminated Space which is the subject of any such Termination Option), the parties shall be relieved of all further obligations under this Lease (as it pertains to the Terminated Space which is the subject of the Termination Option) except for those obligations under this Lease which expressly survive the expiration or sooner termination of this Lease and all references in this Lease to “Premises” shall exclude the Terminated Space, and Tenant’s Share and the amount of the L-C Amount and Reduction L-C Amount shall be proportionately reduced.
BASE RENT
Tenant shall pay, without notice or demand, to Landlord via ACH or at the address set forth in Section 3 of the Summary, or at such other place as Landlord may from time to time designate in writing, in currency or a check for currency which, at the time of payment, is legal tender for private or public debts in the United States of America, base rent (“Base Rent”) as set forth in Section 8 of the Summary, payable in equal monthly installments as set forth in Section 8 of the Summary in advance on or before the first day of each and every month during the Lease Term, without any setoff or deduction whatsoever. On or before the earlier to occur of the Building I Delivery Date or the Building III Delivery Date, Tenant shall deliver to Landlord an amount equal to the Base Rent payable by Tenant for the Premises for the first (1st) full month of the Lease Term for the entire Premises (i.e., $2,213,765.40), which shall be applied to Base Rent first coming due under this Lease. If any rental payment date (including the applicable Lease Commencement Date) falls on a day of the month other than the first day of such month or if any rental payment is for a period which is shorter than one month, then the rental for any such fractional month shall be a proportionate amount of a full calendar month’s rental based on the proportion that the number of days in such fractional month bears to the number of days in the calendar month during which such fractional month occurs. All other payments or adjustments required to be made under the terms of this Lease that require proration on a time basis shall be prorated on the same basis.
Notwithstanding anything to the contrary contained herein and so long as Tenant is not then in default under this Lease (beyond the expiration of all applicable notice and cure periods), Landlord hereby agrees to abate Tenant’s obligation to pay (i) with respect to the Building I Premises, one hundred percent (100%) of Tenant’s monthly Base Rent during the period which is the first (1st), second (2nd), third (3rd), fourth (4th), fifth (5th) and sixth (6th) full calendar months of the initial Lease Term after the Building I Lease Commencement Date (for the Building I Premises), and fifty percent (50%) of Tenant’s monthly Base Rent during the period which is the seventh (7th), eighth (8th), ninth (9th), tenth (10th), eleventh (11th) and twelfth (12th) full calendar months of the initial Lease Term after the Building I Lease Commencement Date (for the Building I Premises), and (ii) with respect to the Building III Premises, one hundred percent (100%) of Tenant’s monthly Base Rent during the period which is the first (1st), second (2nd), third (3rd), fourth (4th), fifth (5th) and sixth (6th) full calendar months after the Building III Lease Commencement Date (for the Building III Premises), and fifty percent (50%) of Tenant’s monthly Base Rent during the period which is the seventh (7th), eighth (8th), ninth (9th), tenth (10th), eleventh (11th) and twelfth (12th) full calendar months of the Lease Term after the Building III Lease Commencement Date (for the Building III Premises) (collectively the “Abated Rent”). During such abatement period, Tenant shall still be responsible for the payment of all of its other monetary obligations under this Lease. In the event of a default by Tenant under the terms of this Lease that results in early termination pursuant to the provisions of Article 19 of this Lease, then as part of the recovery set forth in Article 19 of this Lease, Landlord shall be entitled to the recovery of the unamortized portion of the Abated Rent that was abated under the provisions of this Article 3.
ADDITIONAL RENT
4.1 Additional Rent. In addition to paying the Base Rent specified in Article 3 above, Tenant shall pay as additional rent the sum of the following: (i) Tenant’s Share (as such term is defined below) of the annual Operating Expenses allocated to the Building (pursuant to Section 4.3.4 below); plus (ii) Tenant’s Share of the annual Tax Expenses allocated to the Building (pursuant to Section 4.3.4 below); plus (iii) Tenant’s Share of the annual Utilities Costs allocated to the Building (pursuant to Section 4.3.4 below). Landlord currently estimates that such amounts will be $1.74 per rentable square foot per month at the applicable Lease Commencement Date, which estimate shall include a real estate tax calculation based on land value, cold shell, warm shell, parking valet and an additional $175.00 per rental square foot allowance for tenant improvements as provided in the breakdown attached hereto as Exhibit K; provided, however, that such estimate shall not be binding on Landlord in any way whatsoever (nor affect Tenant’s obligations under this Lease) in the event that the actual amounts are in excess of such estimate. Such additional rent, together with any and all other amounts payable by Tenant to Landlord pursuant to the terms of this Lease (including, without limitation, pursuant to Article 6), shall be hereinafter collectively referred to as the “Additional Rent.” The Base Rent and Additional Rent are herein collectively referred to as the “Rent.” All amounts due under this Article 4 as Additional Rent shall be payable for the same periods and in the same manner, time and place as the Base Rent. Without limitation on other obligations of Tenant which shall survive the expiration of the Lease Term, the obligations of Tenant to pay the Additional Rent provided for in this Article 4 shall survive the expiration of the Lease Term.
4.2 Definitions. As used in this Article 4, the following terms shall have the meanings hereinafter set forth:
4.2.1 “Calendar Year” shall mean each calendar year in which any portion of the Lease Term falls, through and including the calendar year in which the Lease Term expires.
4.2.2 “Expense Year” shall mean each Calendar Year.
4.2.3 “Operating Expenses” shall mean all expenses, costs and amounts of every kind and nature which Landlord shall pay during any Expense Year because of or in connection with the ownership, management, maintenance, repair, restoration or operation of the Project, including, without limitation, any amounts paid for: (i) the cost of operating, maintaining, repairing, renovating and managing the utility systems, lab systems, central plant, mechanical systems, sanitary and storm drainage systems, any elevator systems (if applicable) and all other “Systems and Equipment” (as defined in Section 4.2.4 of this Lease), and the cost of supplies and equipment and maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, permits and inspections, and the cost of contesting the validity or applicability of any governmental enactments which may affect Operating Expenses, and the costs incurred in connection with implementation and operation (by Landlord or any common area association(s) formed for the Project) of any transportation system management program or similar program; (iii) the cost of insurance carried by Landlord, in such amounts as Landlord may reasonably determine or as may be required by any mortgagees of any mortgage or the lessor of any ground lease affecting the Project; (iv) the cost of landscaping, relamping, supplies, tools, equipment and materials, and all fees, charges and other costs (including consulting fees, legal fees and accounting fees) incurred in connection with the management, operation, repair and maintenance of the Project; (v) any equipment rental agreements or management agreements (including the cost of any management fee (to be equal to three percent (3%) of Tenant’s then annual Base Rent; provided, however, that for any period in which Tenant elects to self-manage a Building pursuant to Article 7 of this Lease (and exercises its Management Option, as defined in Section 7.4 below), to be equal to one and one half percent (1.5%) of Tenant’s then annual Base Rent as to such Building) but excluding the rental of any office space provided thereunder); (vi) the cost of any parking valet system, the cost to operate any amenities in the Project and the wages, salaries and other compensation and benefits of all persons to the extent they are engaged in the operation, management, maintenance or security of the Project, and employer’s Social Security taxes, unemployment taxes or insurance, and any other taxes which may be levied on such wages, salaries, compensation and benefits; (vii) payments under any easement, license, operating agreement, declaration, restrictive covenant, underlying or ground lease (excluding rent), or instrument pertaining to the sharing of costs by the Project (including but not limited to, the REA described in Article 5 hereof); (viii) the cost of janitorial service, trash removal (provided, however, Operating Expenses shall not include the cost of janitorial services and trash removal services provided to the Premises or the premises of other tenants of the Building and/or the Project or the cost of replacing light bulbs, lamps, starters and ballasts for lighting fixtures in the Premises and the premises of other tenants in the Building and/or the Project to the extent such services are directly provided and paid for by Tenant pursuant to Section 6.6 below), alarm and security service, if any, window cleaning, replacement of wall and floor coverings, ceiling tiles and fixtures in lobbies, corridors, restrooms and other common or public areas or facilities, maintenance and replacement of curbs and walkways, repair to roofs and re-roofing; (ix) amortization (without interest ) of the cost of acquiring or the rental expense of personal property used in the maintenance, operation and repair of the Project; (x) the cost of any capital improvements or other costs (I) which are intended as a labor-saving device or to effect other economies in the operation or maintenance of the Project or which are otherwise permitted hereunder, (II) made to the Project or any portion thereof after the applicable Lease Commencement Date that are required under any governmental law or regulation, or (III) which are Conservation Costs (as defined below) and/or which are reasonably determined by Landlord to be in the best interests of the Project, including, without limitation, improvements made to implement public health or safety recommendations (collectively, “Reimbursable Capital Improvements”; provided, however, that if any such cost described in (I), (II) or (III) above, is a capital expenditure, such cost shall be amortized (without interest) over the useful life of the item as Landlord shall reasonably determine; and (xi) the costs and expenses of complying with, or participating in, conservation, recycling, sustainability, energy efficiency, waste reduction or other programs or practices implemented or enacted from time to time at the Building and/or Project, including, without limitation, in connection with any LEED (Leadership in Energy and Environmental Design) rating or compliance system or program, including that currently coordinated through the U.S. Green Building Council or Energy Star rating and/or compliance system or program (collectively, “Conservation Costs”). If Landlord is not furnishing any particular work or service (the cost of which, if performed by Landlord, would be included in Operating Expenses) to a tenant who has undertaken to perform such work or service in lieu of the performance thereof by Landlord, Operating Expenses shall be deemed to be increased by an amount equal to the additional Operating Expenses which would reasonably have been incurred during such period by Landlord if it had at its own expense furnished such work or service to such tenant. If any of (x) the Building, (y) the Other Building (but only during the period of time the same is included by Landlord within the Project) and (z) any additional buildings are added to the Project pursuant to Section 1.1.3 above (but only during the period of time after such additional buildings have been fully constructed and ready for occupancy and are included by Landlord within the Project) are less than ninety-five percent (95%) occupied during all or a portion of any Expense Year, Landlord shall make an appropriate adjustment to the variable components of Operating Expenses for such year or applicable portion thereof, employing sound accounting and management principles, to determine the amount of Operating Expenses that would have been paid had the Building, the Other Building and such additional buildings (if any) been ninety-five percent (95%) occupied; and the amount so determined shall be deemed to have been the amount of Operating Expenses for such year, or applicable portion thereof.
Subject to the provisions of Section 4.3.4 below, Landlord shall have the right, from time to time, to equitably allocate some or all of the Operating Expenses (and/or Tax Expenses and Utilities Costs) between the Building and the Other Building and/or among different tenants of the Project and/or among different buildings of the Project as and when such different buildings are constructed and added to (and/or excluded from) the Project or otherwise (the “Cost Pools”). Such Cost Pools may also include an allocation of certain Operating Expenses (and/or Tax Expenses and Utilities Costs) within or under covenants, conditions and restrictions affecting the Project. In addition, subject to the provisions of Section 4.3.4 below, Landlord shall have the right from time to time, in its reasonable discretion, to include or exclude existing or future buildings in the Project for purposes of determining Operating Expenses, Tax Expenses and Utilities Costs and/or the provision of various services and amenities thereto, including allocation of Operating Expenses, Tax Expenses and Utilities Costs in any such Cost Pools.
Notwithstanding the foregoing, Operating Expenses shall not, however, include: (A) costs of leasing commissions, attorneys’ fees and other costs and expenses incurred in connection with negotiations or disputes with present or prospective tenants or other occupants of the Project; (B) costs (including permit, license and inspection costs) incurred in renovating or otherwise improving, decorating or redecorating rentable space for other tenants or vacant rentable space; (C) costs incurred due to the violation by Landlord of the terms and conditions of any lease of space in the Project; (D) costs of overhead or profit increment paid to Landlord or to subsidiaries or affiliates of Landlord for services in or in connection with the Project to the extent the same exceeds the costs of overhead and profit increment included in the costs of such services which could be obtained from third parties on a competitive basis; (E) costs of interest on debt or amortization on any mortgages, and rent payable under any ground lease of the Project; (F) Utilities Costs; (G) Tax Expenses; (H) costs occasioned by casualties or condemnation; (I) costs to correct violation of law applicable to the Premises or the Project on the applicable Lease Commencement Date: (J) costs incurred in connection with the presence of any Hazardous Materials, except to the extent caused by the release or emission of the Hazardous Material in question by Tenant or any of Tenant’s Parties; (K) expense reserves; (L) costs which could properly be capitalized under generally accepted accounting principles, except as specifically provided in 4.2.3(x), above, and only to the extent amortized over the useful life of the capital item in question; (M) costs for services not provided to Tenant under this Lease or are of a nature that are paid directly by Tenant; (N) profit by Landlord for managing or administering the Project except as set forth in Section 4.2.3(v) above; and (O) any costs related to construction of the Project, including the Fitness Center and any other buildings or completion of the work described in Sections 1.1.3 or 24.30 or Exhibit B.
4.2.4 “Systems and Equipment” shall mean any plant (including any central plant), machinery, transformers, duct work, cable, wires, and other equipment, facilities, and systems designed to supply heat, ventilation, air conditioning and humidity or any other services or utilities, or comprising or serving as any component or portion of the electrical, gas, steam, plumbing, sprinkler, communications, alarm, lab, security, or fire/life safety systems or equipment, or any other mechanical, electrical, electronic, computer or other systems or equipment which serve the Building and/or any other building in the Project in whole or in part.
4.2.5 “Tax Expenses” shall mean all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordinary or extraordinary, (including, without limitation, real estate taxes, general and special assessments, transit assessments, fees and taxes, child care subsidies, fees and/or assessments, job training subsidies, fees and/or assessments, open space fees and/or assessments, housing subsidies and/or housing fund fees or assessments, public art fees and/or assessments, leasehold taxes or taxes based upon the receipt of rent, including gross receipts or sales taxes applicable to the receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used in connection with the Project), which Landlord shall pay during any Expense Year because of or in connection with the ownership, leasing and operation of the Project or Landlord’s interest therein. For purposes of this Lease, Tax Expenses shall be calculated as if (i) the tenant improvements in the Building, the Other Building and any additional buildings added to the Project pursuant to Section 1.1.3 above (but only during the period of time that such Other Building and additional buildings are included by Landlord within the Project) were fully constructed, and (ii) the Project, the Building, the Other Building and such additional buildings (if any) and all tenant improvements therein were fully assessed for real estate tax purposes.
4.2.5.1 Tax Expenses shall include, without limitation:
(i) Any tax on Landlord’s rent, right to rent or other income from the Project or as against Landlord’s business of leasing any of the Project;
(ii) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, it being acknowledged by Tenant and Landlord that Proposition 13 was adopted by the voters of the State of California in the June 1978 election (“Proposition 13”) and that assessments, taxes, fees, levies and charges may be imposed by governmental agencies for such services as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of Tenant and Landlord that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses for purposes of this Lease;
(iii) Any assessment, tax, fee, levy, or charge allocable to or measured by the area of the Premises or the rent payable hereunder, including, without limitation, any gross income tax upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises, or any portion thereof;
(iv) Any assessment, tax, fee, levy or charge, upon this transaction or any document to which Tenant is a party, creating or transferring an interest or an estate in the Premises; and
(v) Any reasonable expenses incurred by Landlord in attempting to protest, reduce or minimize Tax Expenses.
4.2.5.2 Notwithstanding anything to the contrary contained in this Section 4.2.5, there shall be excluded from Tax Expenses (i) all excess profits taxes, transfer taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, estate taxes, federal and state net income taxes, and other taxes to the extent applicable to Landlord’s net income (as opposed to rents, receipts or income attributable to operations at the Project), (ii) any items included as Operating Expenses, (iii) any items paid by Tenant under Section 4.4 below, and (iv) any assessments in excess of the amount which would be payable if such assessments were paid in installments over the longest permitted term but only to the extent the payment of such assessments is allowed to be paid in installments without any additional costs other than normal interest.
4.2.6 “Tenant’s Share” shall mean the percentage set forth in Section 9 of the Summary. Tenant’s Share was calculated by dividing the number of rentable square feet of the Premises by the total rentable square feet in the Building (as set forth in Section 9 of the Summary), and stating such amount as a percentage. Subject to the terms of Section 9 of the Summary and Section 1.3 above, Tenant’s Share as set forth in Section 9 of the Summary shall be binding on the parties for the entire Term. If Tenant’s Share is adjusted pursuant to Section 1.3 above then, as to the Expense Year in which such adjustment occurs, Tenant’s Share for such year shall be determined on the basis of the number of days during such Expense Year that each such Tenant’s Share was in effect but only to the extent the payment of such assessments in installments was allowed under applicable laws.
4.2.7 “Utilities Costs” shall mean all actual charges for utilities for the Building and the Project (including utilities for the Other Building and additional buildings, if any, added to the Project during the period of time the same are included by Landlord within the Project) which Landlord shall pay during any Expense Year, including, but not limited to, the costs of water, sewer, gas and electricity, and the costs of HVAC and other utilities, including any lab utilities and central plant utilities (but excluding those charges for which tenants directly reimburse Landlord or otherwise pay directly to the utility company) as well as related fees, assessments, measurement meters and devices and surcharges. Utilities Costs shall be calculated assuming the Building (and, during the period of time when such buildings are included by Landlord within the Project, the Other Building and any additional buildings, if any, added to the Project) are at least ninety-five percent (95%) occupied. If, during all or any part of any Expense Year, Landlord shall not provide any utilities (the cost of which, if provided by Landlord, would be included in Utilities Costs) to a tenant (including Tenant) who has undertaken to provide the same instead of Landlord, Utilities Costs shall be deemed to be increased by an amount equal to the additional Utilities Costs which would reasonably have been incurred during such period by Landlord if Landlord had at its own expense provided such utilities to such tenant. Utilities Costs shall include any costs of utilities which are allocated to the Project under any declaration, restrictive covenant, or other instrument pertaining to the sharing of costs by the Project or any portion thereof, including any covenants, conditions or restrictions now or hereafter recorded against or affecting the Project. Notwithstanding the foregoing, Utilities Costs shall not include: (A) any costs that would be considered a capital expenditure (with such costs treated, instead, as Operating Expenses, as allowed under Section 4.2.3 above), (B) any connection fees, tap-in fees, or other fees for service to the Project not in existence as of the applicable Lease Commencement Date or (C) costs for services or utilities not provided to Tenant under this Lease or of a nature that are paid directly by Tenant.
4.3 Calculation and Payment of Additional Rent.
4.3.1 Payment of Operating Expenses, Tax Expenses and Utilities Costs. For each Expense Year ending or commencing within the Lease Term, Tenant shall pay to Landlord, as Additional Rent, the following, which payment shall be made in the manner set forth in Section 4.3.2 below: (i) Tenant’s Share of Operating Expenses allocated to the Building pursuant to Section 4.3.4 below; plus (ii) Tenant’s Share of Tax Expenses allocated to the Building pursuant to Section 4.3.4 below; plus (iii) Tenant’s Share of Utilities Costs allocated to the Building pursuant to Section 4.3.4 below.
4.3.2 Statement of Actual Operating Expenses, Tax Expenses and Utilities Costs and Payment by Tenant. Landlord shall endeavor to give to Tenant on or before the first (1st) day of June following the end of each Expense Year, a statement (the “Statement”) which shall state the Operating Expenses, Tax Expenses and Utilities Costs incurred or accrued for such preceding Expense Year that are allocated to the Building pursuant to Section 4.3.4 below, and which shall indicate therein Tenant’s Share thereof. Within thirty (30) days after Tenant’s receipt of the Statement for each Expense Year ending during the Lease Term, Tenant shall pay to Landlord the full amount of the Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs for such Expense Year, less the amounts, if any, paid during such Expense Year as the Estimated Expenses as defined in and pursuant to Section 4.3.3 below. If any Statement reflects that Tenant has overpaid Tenant’s Share of Operating Expenses and/or Tenant’s Share of Tax Expenses and/or Tenant’s Share of Utilities Costs for such Expense Year, then Landlord shall, at Landlord’s option, either (i) remit such overpayment to Tenant within thirty (30) days after such applicable Statement is delivered to Tenant, or (ii) credit such overpayment toward the Rent next due and payable by Tenant under this Lease. The failure of Landlord to timely furnish the Statement for any Expense Year shall not prejudice Landlord from enforcing its rights under this Article 4; provided, however, Tenant shall not be required to pay for any Operating Expenses, Tax Expenses or Utilities Costs until thirty (30) days after receipt of such Statement as provided in the second sentence of this Section 4.3.2 (and Estimated Expenses as provided in Section 4.3.3). Even though the Lease Term has expired and Tenant has vacated the Premises, if the Statement for the Expense Year in which this Lease terminates reflects that Tenant has overpaid and/or underpaid Tenant’s Share of the Operating Expenses and/or Tenant’s Share of Tax Expenses and/or Tenant’s Share of Utilities Costs for such Expense Year, then within thirty (30) days after Landlord’s delivery of such Statement to Tenant, Landlord shall refund to Tenant any such overpayment, or Tenant shall pay to Landlord any such underpayment, as the case may be. Tenant’s failure to object any Statement within twelve (12) months after Tenant’s receipt thereof shall constitute Tenant’s irrevocable waiver to object to the same. Subject to the terms of Section 4.6. The provisions of this Section 4.3.2 shall survive the expiration or earlier termination of the Lease Term. Notwithstanding the foregoing to the contrary, Tenant shall not be responsible for Tenant’s Share of any Operating Expenses, Utilities Costs or Tax Expenses attributable to any calendar year which was first billed to Tenant more than twenty-four (24) months after the date (the “Cutoff Date”) which is the earlier of (i) the expiration of the applicable calendar year or (i) the Lease Expiration Date, except that Tenant shall be responsible for Tenant’s Share of any Operating Expenses, Utilities Costs and Tax Expenses levied by any governmental authority or by any public utility company at any time following the applicable Cutoff Date which are attributable to any calendar year occurring prior to such Cutoff Date, so long as Landlord delivers to tenant a bill and supplemental statement for such amounts within ninety (90) days following Landlord’s receipt of the applicable bill therefor.
4.3.3 Statement of Estimated Operating Expenses, Tax Expenses and Utilities Costs. Landlord shall endeavor to give Tenant a yearly expense estimate statement (the “Estimate Statement”) which shall set forth Landlord’s reasonable estimate (the “Estimate”) of the total amount of Tenant’s Share of the Operating Expenses, Tax Expenses and Utilities Costs allocated to the Building pursuant to Section 4.3.4 below for the then-current Expense Year shall be, and which shall indicate therein Tenant’s Share thereof (the “Estimated Expenses”). The failure of Landlord to timely furnish the Estimate Statement for any Expense Year shall not preclude Landlord from enforcing its rights to collect any Estimated Expenses under this Article 4. Following Landlord’s delivery of the Estimate Statement for the then-current Expense Year, Tenant shall pay, within thirty (30) days thereafter, a fraction of the Estimated Expenses for the then-current Expense Year (reduced by any amounts paid pursuant to the last sentence of this Section 4.3.3). Such fraction shall have as its numerator the number of months which have elapsed in such current Expense Year to the month of such payment, both months inclusive, and shall have twelve (12) as its denominator. Until a new Estimate Statement is furnished, Tenant shall pay monthly, with the monthly Base Rent installments, an amount equal to one-twelfth (1/12) of the total Estimated Expenses set forth in the previous Estimate Statement delivered by Landlord to Tenant.
4.3.4 Allocation of Operating Expenses, Tax Expenses and Utilities Costs to Building. The parties acknowledge that the Building is part of a multi-building commercial project consisting of the Building, and the Other Building and such other buildings as Landlord (and/or any other owners of the Project) may elect to construct and include as part of the Project from time to time (the Other Building and any such other buildings are sometimes referred to herein, collectively, as the “Other Buildings”), and that certain of the costs and expenses incurred in connection with the Project (i.e. the Operating Expenses, Tax Expenses and Utilities Costs) shall be shared among the Building and/or such Other Buildings, while certain other costs and expenses which are solely attributable to the Building and such Other Buildings, as applicable, shall be allocated directly to the Building and the Other Buildings, respectively. Accordingly, as set forth in Sections 4.1 and 4.2 above, Operating Expenses, Tax Expenses and Utilities Costs are determined annually for the Project as a whole, and a portion of the Operating Expenses, Tax Expenses and Utilities Costs, which portion shall be determined by Landlord on an equitable basis, shall be allocated to the Building (as opposed to the tenants of the Other Buildings), and such portion so allocated shall be the amount of Operating Expenses, Tax Expenses and Utilities Costs payable with respect to the Building upon which Tenant’s Share shall be calculated. Such portion of the Operating Expenses, Tax Expenses and Utilities Costs allocated to the Building shall include all Operating Expenses, Tax Expenses and Utilities Costs which are attributable solely to the Building, and an equitable portion of the Operating Expenses, Tax Expenses and Utilities Costs attributable to the Project as a whole and shall not include Operating Expenses, Tax Expenses or Utilities Costs related solely to Other Buildings. In addition, all utilities shall be separately metered or sub-metered to the Premises and Tenant shall pay such metered amounts rather than a share of the utilities used by other tenants. As an example of such allocation with respect to Tax Expenses and Utilities Costs, it is anticipated that Landlord (and/or any other owners of the Project) may receive separate tax bills which separately assess the improvements component of Tax Expenses for each building in the Project and/or Landlord may receive separate utilities bills from the utilities companies identifying the Utilities Costs for certain of the utilities costs directly incurred by each such building (as measured by separate meters installed for each such building), and such separately assessed Tax Expenses and separately metered Utilities Costs shall be calculated for and allocated separately to each such applicable building. In addition, in the event Landlord (and/or any other owners of the Project) elect to subdivide certain common area portions of the Project such as landscaping, public and private streets, driveways, walkways, courtyards, plazas, transportation facilitation areas and/or accessways into a separate parcel or parcels of land (and/or separately convey all or any of such parcels to a common area association to own, operate and/or maintain same), the Operating Expenses, Tax Expenses and Utilities Costs for such common area parcels of land may be aggregated and then reasonably allocated by Landlord to the Building and such Other Buildings on an equitable basis as Landlord (and/or any applicable covenants, conditions and restrictions for any such common area association) shall provide from time to time.
4.3.5 Cap on Controllable Operating Expenses. Notwithstanding anything to the contrary contained in this Article 4, the aggregate “Controllable Expenses” (as hereinafter defined) included in Operating Expenses in any Expense Year after the first Expense Year shall not increase by more than five percent (5%) on a non-cumulative basis, over the actual aggregate Controllable Expenses included in Operating Expenses for any preceding Expense Year, but with no such limit on the amount of Controllable Expenses which may be included in the Operating Expenses incurred during the first Expense Year. Operating Expenses shall, in Landlord’s Building- standard manner, be grossed up during any Expense Year that the Project is not fully leased and occupied. For purposes of this Section 4.3.5, “Controllable Expenses” shall mean all Operating Expenses except insurance carried by Landlord with respect to the Building and/or the operation thereof. The provisions of this Section 4.3.5 do not apply to the Tax Expenses nor Utilities Costs.
4.4 Taxes and Other Charges for Which Tenant Is Directly Responsible. Tenant shall reimburse Landlord upon demand for all taxes or assessments required to be paid by Landlord (except to the extent included in Tax Expenses by Landlord), excluding state, local and federal personal or corporate income taxes measured by the net income of Landlord from all sources and estate and inheritance taxes, whether or not now customary or within the contemplation of the parties hereto, when:
4.4.1 said taxes are measured by or reasonably attributable to the cost or value of Tenant’s equipment, furniture, fixtures and other personal property located in the Premises;
4.4.2 said taxes are assessed upon or due to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion of the Project; or
4.4.3 said taxes are assessed upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises.
4.5 Late Charges. If any installment of Rent or any other sum due from Tenant shall not be received by Landlord or Landlord’s designee within five (5) days of the due date therefor, then Tenant shall pay to Landlord a late charge equal to five percent (5%) of the amount due plus any reasonable attorneys’ fees incurred by Landlord by reason of Tenant’s failure to pay Rent and/or other charges when due hereunder. The late charge shall be deemed Additional Rent and the right to require it shall be in addition to all of Landlord’s other rights and remedies hereunder, at law and/or in equity and shall not be construed as liquidated damages or as limiting Landlord’s remedies in any manner. In addition to the late charge described above, any Rent or other amounts owing hereunder which are not paid by the date that they are due shall thereafter bear interest until paid at a rate (the ” Interest Rate”) equal to the lesser of (i) the “Prime Rate” or “Reference Rate” announced from time to time by the Bank of America (or such reasonable comparable national banking institution as selected by Landlord in the event Bank of America ceases to exist or publish a Prime Rate or Reference Rate), plus four percent (4%), or (ii) the highest rate permitted by applicable law. Notwithstanding the foregoing, before assessing a late charge or interest the first time in any one (1) year period, Landlord shall provide Tenant written notice and email of the delinquency, and shall waive such late charge if Tenant pays such delinquency within five (5) days thereafter.
4.6 Audit Rights. Tenant shall have the right, at Tenant’s cost, after reasonable notice to Landlord, to have Tenant’s authorized employees or agents inspect, at Landlord’s main corporate office during normal business hours, Landlord’s books, records and supporting documents concerning the Operating Expenses, Tax Expenses and Utilities Costs set forth in any Statement delivered by Landlord to Tenant for a particular Expense Year pursuant to Section 4.3.2 above or Estimate Statement provided pursuant to Section 4.3.3 above; provided, however, Tenant shall have no right to conduct such inspection or object to or otherwise dispute the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in any such Statement, unless Tenant notifies Landlord of such inspection objection and dispute, completes such inspection within twelve (12) months immediately following Landlord’s delivery of a Statement (the “Review Period”); provided, further, that notwithstanding any such timely inspection, objection, dispute, and/or audit, and as a condition precedent to Tenant exercise of its right of inspection, objection, dispute, and/or audit as set forth in this Section 4.6, Tenant shall not be permitted to withhold payment of, and Tenant shall timely pay to Landlord, the full amounts as required by the provisions of this Article 4 in accordance with such Statement. However, such payment may be made under protest pending the outcome of any audit. In connection with any such inspection by Tenant, Landlord and Tenant shall reasonably cooperate with each other so that such inspection can be performed pursuant to a mutually acceptable schedule, in an expeditious manner and without undue interference with Landlord’s operation and management of the Project. If after such inspection and/or request for documentation, Tenant disputes the amount of the Operating Expenses, Tax Expenses and Utilities Costs set forth in the Statement, Tenant shall have the right, but not the obligation, within the Review Period, to cause an independent certified public accountant which is not paid on a contingency basis and which is mutually approved by Landlord and Tenant (the “Accountant”) to complete an audit of Landlord’s books and records to determine the proper amount of the Operating Expenses, Tax Expenses and Utilities Costs incurred and amounts payable by Tenant for the Expense Year which is the subject of such Statement. Such audit by the Accountant shall be final and binding upon Landlord and Tenant. If Landlord and Tenant cannot mutually agree as to the identity of the Accountant within thirty (30) days after Tenant notifies Landlord that Tenant desires an audit to be performed, then the Accountant shall be one of the “Big 4” accounting firms selected by Landlord, which is not paid on a contingency basis and is not, and has not been, otherwise employed or retained by Landlord. If such audit reveals that Landlord has over-charged Tenant, then within thirty (30) days after the results of such audit are made available to Landlord, Landlord shall reimburse to Tenant the amount of such over-charge. If the audit reveals that the Tenant was under-charged, then within thirty (30) days after the results of such audit are made available to Tenant, Tenant shall reimburse to Landlord the amount of such undercharge. Tenant agrees to pay the cost of such audit unless it is subsequently determined that Landlord’s original Statement which was the subject of such audit was in error to Tenant’s disadvantage by five percent (5%) or more of the total Operating Expenses, Tax Expenses and Utilities Costs which was the subject of the audit (in which case Landlord shall pay the cost of such audit). The payment by Tenant of any amounts pursuant to this Article 4 shall not preclude Tenant from questioning the correctness of any Statement provided by Landlord at any time during the Review Period, but the failure of Tenant to object thereto, conduct and complete its inspection and have the Accountant conduct and complete the audit as described above prior to the expiration of the Review Period shall be conclusively deemed Tenant’s approval of the Statement in question and the amount of Operating Expenses, Tax Expenses and Utilities Costs shown thereon, subject to Tenant’s right to review Statements for the prior twelve (12) months. In connection with any inspection and/or audit conducted by Tenant pursuant to this Section 4.6, Tenant agrees to keep, and to cause all of Tenant’s employees and consultants and the Accountant to keep, all of Landlord’s books and records and the audit, and all information pertaining thereto and the results thereof, strictly confidential, and in connection therewith, Tenant shall cause such employees, consultants and the Accountant to execute such reasonable confidentiality agreements as Landlord may require prior to conducting any such inspections and/or audits.
USE OF PREMISES; HAZARDOUS MATERIALS; ODORS AND EXHAUST
5.1 Use. Tenant shall use the Premises solely for general office, laboratory, research and development, manufacturing, and all other life science uses to the extent consistent with the current zoning for the Premises (including shipping, receiving, storage and vivarium use), all applicable laws and the first-class nature of the Project as a first-class biotechnology project, and Tenant shall not use or permit the Premises to be used for any other purpose or purposes whatsoever without Landlord’s consent. Tenant shall not use, or suffer or permit any person or persons to use, the Premises or any part thereof for any use or purpose contrary to the provisions of Exhibit D, attached hereto, or in violation of the laws of the United States of America, the state in which the Project is located, or the ordinances, regulations or requirements of the local municipal or county governing body or other lawful authorities having jurisdiction over the Project. Tenant shall comply with the Rules and Regulations and all recorded covenants, conditions, and restrictions, and the provisions of all ground or underlying leases, now or hereafter affecting the Project, including but not limited to, that certain Amended and Restated Declaration of Covenants, Conditions and Restrictions for Sierra Point dated October 21, 1998, by Sierra Point, L.L.C., a Delaware limited liability company (“Sierra”), which was recorded on October 23, 1998 as Instrument No. 98-172218; as amended by First Amendment to Amended and Restated Declaration of Covenants, Conditions and Restrictions for Sierra Point dated July 11, 1999 and recorded on August 6, 1999 as Instrument 1999-134787, said amendment being re-recorded on October 20, as Instrument No. 1999-176057; as further amended by Second Amendment to Amended and Restated Declaration of Covenants, Conditions and Restrictions for Sierra Point dated July 13, 2001 and recorded on July 18, 2001 as Instrument 01-108664 (collectively, the existing “CC&Rs”), as the same may be amended, amended and restated, supplemented or otherwise modified from time to time; provided that any such amendments, restatements, supplements or modifications do not materially modify Tenant’s rights or obligations hereunder.
5.2 Hazardous Materials.
5.2.1 Definitions: As used in this Lease, the following terms have the following meanings:
(a) “Environmental Law” means any past, present or future federal, state or local statutory or common law, or any regulation, ordinance, code, plan, order, permit, grant, franchise, concession, restriction or agreement issued, entered, promulgated or approved thereunder, relating to (a) the environment, human health or safety, including, without limitation, emissions, discharges, releases or threatened releases of Hazardous Materials (as defined below) into the environment (including, without limitation, air, surface water, groundwater or land), or (b) the manufacture, generation, refining, processing, distribution, use, sale, treatment, receipt, storage, disposal, transport, arranging for transport, or handling of Hazardous Materials.
(b) “Environmental Permits” mean collectively, any and all permits, consents, licenses, approvals and registrations of any nature at any time required pursuant to, or in order to comply with, any Environmental Law including, but not limited to, any Spill Control Countermeasure Plan and any Hazardous Materials Management Plan.
(c) “Hazardous Materials” shall mean and include any hazardous or toxic materials, substances or wastes as now or hereafter designated or regulated under any Environmental Law, including, without limitation, asbestos, petroleum, petroleum hydrocarbons and petroleum based products, urea formaldehyde foam insulation, polychlorinated biphenyls (“PCBs”), freon and other chlorofluorocarbons, “biohazardous waste,” “medical waste,” “infectious agent”, “mixed waste” or other waste under California Health and Safety Code §§ 117600 et, seq.
(d) “Release” shall mean with respect to any Hazardous Materials, any release, deposit, discharge, emission, leaking, pumping, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Materials in violation of Environmental Law or this Lease.
5.2.2 Tenant’s Obligations – Environmental Permits. Tenant will (i) obtain and maintain in full force and effect all Environmental Permits that may be required from time to time under any Environmental Laws applicable to Tenant or the Premises and (ii) be and remain in compliance with all terms and conditions of all such Environmental Permits and with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in all Environmental Laws applicable to Tenant or the Premises.
5.2.3 Tenant’s Obligations – Hazardous Materials. Except as expressly permitted herein (including with respect to Hazardous Materials on the Hazardous Materials List, as to which no consent is required), Tenant agrees not to cause or permit any Hazardous Materials to be brought upon, stored, used, handled, generated, released or disposed of on, in, under or about the Premises, or any other portion of the Property by Tenant, its agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, “Tenant’s Parties”), without the prior written consent of Landlord, which consent must be provided or withheld within seven (7) days of Tenant’s request and which Landlord may withhold in its reasonable discretion. Landlord acknowledges that it is not the intent of this Section 5.2 to prohibit Tenant from operating its business for the uses permitted hereunder and Landlord hereby consents to Tenant’s storage, use, generation or release in compliance with applicable Environmental Laws of those Hazardous Materials that are on the Landlord-approved Hazardous Materials List or reasonably required for Tenant’s business. Tenant may operate its business according to the custom of Tenant’s industry so long as the use or presence of Hazardous Materials is strictly and properly monitored in accordance with applicable Environmental Laws. As a material inducement to Landlord to allow Tenant to use Hazardous Materials in connection with its business, Tenant agrees to deliver to Landlord prior to the applicable Lease Commencement Date a list identifying each type of Hazardous Material to be present at the applicable portion of the Premises and setting forth any and all governmental approvals or permits required in connection with the presence of such Hazardous Material at the applicable portion of the Premises (the “Hazardous Materials List”). Tenant shall deliver to Landlord an updated Hazardous Materials List on or prior to each annual anniversary of the Building III Lease Commencement Date. Tenant shall deliver to Landlord true and correct copies of the following documents (hereinafter referred to as the “Documents”) relating to the handling, storage, disposal and emission of Hazardous Materials prior to the applicable Lease Commencement Date or, if unavailable at that time, concurrently with the receipt from or submission to any Governmental Authority: permits; approvals; reports and correspondence; storage and management plans; notices of violations of applicable Environmental Laws; plans relating to the installation of any storage tanks to be installed in, on, under or about the Premises (provided that installation of storage tanks shall only be permitted after Landlord has given Tenant its written consent to do so, which consent Landlord may withhold in its sole and absolute (but good faith) discretion); and all closure plans or any other documents required by any and all governmental authorities for any storage tanks installed in, on, under or about the Premises for the closure of any such storage tanks. For each type of Hazardous Material listed, the Documents shall include (t) the chemical name, (u) the material state (e.g., solid, liquid, gas or cryogen), (v) the concentration, (w) the storage amount and storage condition (e.g., in cabinets or not in cabinets), (x) the use amount and use condition (e.g., open use or closed use), (y) the location (e.g., room number or other identification) and (z) if known, the chemical abstract service number. Tenant shall not be required, however, to provide Landlord with any portion of the Documents containing information of a proprietary nature, which Documents, in and of themselves, do not contain a reference to any Hazardous Materials or activities related to Hazardous Materials. Upon the expiration or earlier termination of this Lease, Tenant agrees to promptly remove from the Premises, the Building and the Project, at its sole cost and expense, any and all Hazardous Materials, including any equipment or systems containing Hazardous Materials which are installed, brought upon, stored, used, generated or released (to the extent clean-up of any release is required by Environmental Laws) upon, in, under or about the Premises, the Building and/or the Project or any portion thereof by Tenant or any of Tenant’s Parties during the Term of this Lease.
5.2.4 Landlord’s Right to Conduct Environmental Assessment. At any time during the Lease Term, Landlord shall have the right to conduct an environmental assessment of the Premises (as well as any other areas in, on or about the Project that Landlord reasonably believes may have been affected adversely by Tenant’s use of the Premises (collectively, the “Affected Areas”) in order to confirm that the Premises and the Affected Areas do not contain any Hazardous Materials in violation of applicable Environmental Laws or under conditions constituting or likely to constitute a Release of Hazardous Materials. Such environmental assessment shall be a so-called “Phase I” assessment or such other level of investigation which shall be the standard of diligence in the purchase or lease of similar property at the time, together with any additional investigation and report which would customarily follow any discovery contained in such initial Phase I assessment (including, but not limited to, any so-called “Phase II” report). Such right to conduct such environmental assessment shall not be exercised more than once per calendar year unless Tenant is in default under this Section 5.2. Such environmental assessments or inspections shall be subject to Article 22 and be at Landlord’s sole cost and expense unless it is discovered that Tenant has violated the terms of this Lease pertaining to Hazardous Materials.
5.2.5 Tenant’s Obligations to perform Corrective Action. If the data from any environmental assessment authorized and undertaken by Landlord pursuant to Section 5.2.4 indicates there has been a Release, threatened Release or other conditions with respect to Hazardous Materials on, under or emanating from the Premises and the Affected Areas by Tenant or Tenant’s Parties that may require any investigation and/or active response action, including without limitation active or passive remediation and monitoring or any combination of these activities (“Corrective Action”), Tenant shall immediately undertake Corrective Action with respect to such contamination if, and to the extent, required by the governmental authority exercising jurisdiction over the matter. Any Corrective Action performed by Tenant will be performed with Landlord’s prior written approval and in accordance with applicable Environmental Laws, at Tenant’s sole cost and expense and by an environmental consulting firm (reasonably acceptable to Landlord). Tenant may perform the Corrective Action before or after the expiration or earlier termination of this Lease, to the extent permitted by governmental agencies with jurisdiction over the Premises, the Building and the Project (provided, however, that any Corrective Action performed after the expiration or earlier termination of this Lease shall be subject to the access fee provisions set forth below). If Tenant undertakes or continues Corrective Action after the expiration or earlier termination of this Lease, Landlord, upon being given forty-eight (48) hours’ advance notice, may, in Landlord’s sole discretion, elect (without limiting any of the Landlord’s other rights and remedies under this Lease, at law and/or in equity), to provide, at an “access fee” equal to one hundred fifty percent (150%) of the Monthly Rent in effect for the last month immediately preceding the expiration or earlier termination of this Lease (prorated for partial months based on days of actual access and only if the Premises cannot be used by a third party during such period), plus all other sums due under this Lease, access to the Premises, the Building and the Project as may be requested by Tenant and its consultant to accomplish the Corrective Action. Tenant or its consultant may install, inspect, maintain, replace and operate remediation equipment and conduct the Corrective Action as it considers necessary, subject to Landlord’s approval. Tenant and Landlord shall, in good faith, cooperate with each other with respect to any Corrective Action after the expiration or earlier termination of this Lease so as not to interfere unreasonably with the conduct of Landlord’s or any third party’s business on the Premises, the Building and the Project. Landlord may, in its sole discretion, provide access until Tenant delivers evidence reasonably satisfactory to Landlord that Tenant’s Corrective Action activities on the Premises and the Affected Areas satisfy applicable Environmental Laws. It shall be reasonable for Landlord to require Tenant to deliver a “no further action” letter or substantially similar document from the applicable governmental agency. Tenant shall pay the access fee for each day that Landlord is not able to use the Premises and the Affected Areas for such purposes as Landlord reasonably desires. Landlord’s “reasonableness” as used in the immediately preceding sentence shall be based on (i) the zoning of the Premises as of the date in question, and (ii) the logical uses of the Premises as of the date in question. If Landlord desires to situate a tenant in the Premises, the Building and the Project and is unable to do so due to the presence of Hazardous Materials in violation of Environmental Laws and caused by Tenant or Tenant Parties, and remediation of the Premises and the Affected Areas is ongoing, Landlord shall be deemed to be unable to use the Premises, the Building and the Project in the way Landlord reasonably desires and Tenant shall be obligated to continue paying the access fee until such time as Landlord is able to situate said tenant in the Premises, the Building and/or the Project. Tenant agrees to install, at Tenant’s sole cost and expense, screening around its remediation equipment so as to protect the aesthetic appeal of the Premises, the Building and the Project. Tenant also agrees to use reasonable efforts to locate its remediation and/or monitoring equipment, if any (subject to the requirements of Tenant’s consultant and governmental agencies with jurisdiction over the Premises, the Building and the Project) in a location which will allow Landlord, to the extent reasonably practicable, the ability to lease the Premises, the Building and the Project to a subsequent user. Notwithstanding anything above to the contrary, if any clean-up or monitoring procedure is required by any applicable governmental authorities in, on, under or about the Premises and the Affected Areas during the Lease Term as a consequence of any Hazardous Materials contamination caused by Tenant or Tenant’s Parties and the procedure for clean-up is not completed (to the satisfaction of Landlord and/or the governmental authorities) prior to the expiration or earlier termination of this Lease then, at Landlord’s election, (i) this Lease shall be deemed renewed for a term commencing on the expiration or earlier termination of this Lease and ending on the date the clean-up procedure is anticipated to be completed; or (ii) Tenant shall be deemed to have impermissibly held over (and Article 16 of this Lease shall apply with full force and effect) and Landlord shall be entitled to all damages directly or indirectly incurred, including, without limitation, damages occasioned by the inability to relet the Premises and/or any other portion of the Building or a reduction of the fair market or rental value of the Premises and/or the Building.
5.2.6 Tenant’s Duty to Notify Landlord Regarding Releases. Tenant agrees to promptly notify Landlord of any Release of Hazardous Materials in the Premises, the Building or any other portion of the Project which Tenant becomes aware of during the Term of this Lease, whether caused by Tenant or any other persons or entities. In the event of any release of Hazardous Materials caused by Tenant or any of Tenant’s Parties, Landlord shall have the right, but not the obligation, to cause Tenant, at Tenant’s sole cost and expense, to immediately take all reasonable steps Landlord deems necessary or appropriate to remediate such Release and prevent any similar future release as required by Environmental Law to the satisfaction of Landlord and Landlord’s mortgagee(s). Tenant will, upon the request of Landlord at any time during which Landlord has reason to believe that Tenant is not in compliance with this Section 5.2 (and in any event no earlier than sixty (60) days and no later than thirty (30) days prior to the expiration of this Lease), cause to be performed an environmental audit of the Premises at Tenant’s expense by an established environmental consulting firm reasonably acceptable to Landlord. In the event the audit provides that Corrective Action is required then Tenant shall immediately perform the same at its sole cost and expense.
5.2.7 Tenant’s Environmental Indemnity. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord’s members, partners, subpartners, independent contractors, officers, directors, shareholders, employees, agents, successors and assigns (collectively, “Landlord Parties”) from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys’ fees, consultant fees and expert fees and court costs) which arise or result from the Release of Hazardous Materials on, in, under or about the Premises, the Building or any other portion of the Project and which are caused by Tenant or any of Tenant’s Parties during the Term of this Lease, including arising from or caused in whole or in part, directly or indirectly, by (i) Tenant’s or Tenant’s Parties’ actual, proposed or threatened use, treatment, storage, transportation, holding, existence, disposition, manufacturing, control, management, abatement, removal, handling, transfer, generation or Release (past, present or threatened) of Hazardous Materials to, in, on, under, about or from the Premises and the Affected Areas in violation of Environmental Laws or this Lease; (ii) any past, present or threatened non-compliance or violations of any Environmental Laws in connection with Tenant and/or Tenant’s particular use of the Premises and/or the Affected Areas; (iii) personal injury claims; (iv) the payment of any environmental liens, or the disposition, recording, or filing or threatened disposition, recording or filing of any environmental lien encumbering or otherwise affecting the Premises and/or the Affected Areas; (v) diminution in the value of the Premises and/or the Project; (vi) damages for the loss or restriction of use of the Premises and/or the Project, including prospective rent, lost profits and business opportunities; (vii) sums paid in settlement of claims; (viii) reasonable attorneys’ fees, consulting fees and expert fees; (ix) the cost of any investigation of site conditions; and (x) the cost of any repair, clean-up or remediation ordered by any governmental or quasi-governmental agency or body. Tenant’s obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification or decontamination of the Premises, the Building and/or the Project, or the preparation and implementation of any closure, remedial action or other required plans in connection therewith. For purposes of the indemnity provisions in this Section 5.2, any acts of Tenant and/or Tenant’s Parties or others acting for or on behalf of Tenant (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Tenant. The provisions of this Section 5.2.7 will survive the expiration or earlier termination of this Lease.
5.2.8 Limitations on Tenant’s Obligations. Notwithstanding anything to the contrary contained in this Lease, Tenant shall have no liability in connection with any Hazardous Materials (i) in existence on the Premises, Building or Project prior to the applicable Lease Commencement Date or brought onto the Premises, Building or Project after the applicable Lease Commencement Date by any third party other than a Tenant Party or (ii) which may migrate into the Premises through air, water or soil, through no fault of Tenant or any of Tenant’s Parties.
5.2.9 Landlord’s Termination Option for Certain Environmental Problems. If Hazardous Materials are present at the Premises that are required by Environmental Law to be remediated and Tenant is not responsible therefor pursuant to Section 5.2, Landlord shall remediate such Hazardous Materials, in which event this Lease shall continue in full force and effect. Landlord shall provide Tenant with abatement of Rent provided in (and subject to) Section 6.8 below, to the extent such work materially interferes with Tenant’s conduct of its business in the Premises and Tenant does not occupy all or any material portion of the Premises on account of such work.
5.2.10 Control Areas. Tenant shall be allowed to utilize up to its pro rata share of the Hazardous Materials inventory within any control area or zone (located within the Premises), as designated by the applicable building code, for chemical use or storage.
5.2.11 Landlord’s Environmental Indemnity and Representations. Landlord indemnifies and shall defend, hold and save Tenant and the Tenant Parties from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, reasonable attorneys’ fees, reasonable consultant fees and reasonable expert fees and court costs) which arise or result from the presence of Hazardous Materials on, in, under or about the Premises, the Building or any other portion of the Project and which arise during or after the Lease Term as a result of the environmental condition at the Project not caused by Tenant; provided, however, that Landlord’s indemnity obligation shall not extend to the loss of business, loss of profits or other consequential damages which may be suffered by Tenant. The provisions of this Section 5.2.11 will survive the expiration or earlier termination of this Lease. Landlord represents, to its actual knowledge, except as set forth in reports provided by Landlord to Tenant prior to the date of this Lease, that no Hazardous Materials, including mold or asbestos, exist on, in, under or about the Premises or the Project, including the soil or groundwater thereunder. As Tenant’s sole remedy for Landlord’s breach of the foregoing representation, Landlord shall remediate such Hazardous Materials but only those Hazardous Materials in violation of Environmental Laws.
5.3 Odors and Exhaust. Tenant acknowledges that Landlord would not enter into this Lease with Tenant unless Tenant assured Landlord that under no circumstances will the Premises be damaged by any exhaust from Tenant’s operations. Landlord and Tenant therefore agree as follows:
5.3.1 Tenant shall not cause or permit (or conduct any activities that would cause) any release of any odors or fumes of any kind from the Premises in violation of Environmental Laws.
5.3.2 As part of the Base Building, Landlord shall install a ventilation system that, in Landlord’s reasonable judgment, is adequate, suitable, and appropriate to reasonably vent the Premises for a typical lab use in a manner that does not release odors detectable by a typical person and not unreasonably affecting any indoor or outdoor part of the Premises, and Tenant shall vent the Premises through such system. The placement and configuration of all ventilation exhaust pipes, louvers and other equipment shall be subject to Landlord’s reasonable approval. Tenant acknowledges Landlord’s legitimate desire to maintain the Premises (indoor and outdoor areas) in a commercially reasonable, odor-free manner, and Landlord may require Tenant to abate and remove all unreasonable odors in a manner that goes beyond the requirements of applicable laws.
5.3.3 Tenant shall, at Tenant’s sole cost and expense, provide odor eliminators and other devices (such as filters, air cleaners, scrubbers and whatever other equipment may in Landlord’s judgment be necessary or appropriate from time to time) to completely remove, eliminate and abate any odors, fumes or other substances in Tenant’s exhaust stream that, in Landlord’s judgment, emanate from the Premises. Any work Tenant performs under this Section 5.3 shall constitute Alterations.
5.3.4 Tenant’s responsibility to remove, eliminate and abate odors, fumes and exhaust shall continue throughout the Term.
5.3.5 If Tenant fails to install satisfactory odor control equipment within ten (10) business days after Landlord’s demand made at any time, then Landlord may, without limiting Landlord’s other rights and remedies, require Tenant to cease and suspend any operations in the Premises that, in Landlord’s determination, cause odors, fumes or exhaust.
SERVICES AND UTILITIES
6.1 Standard Tenant Services. Landlord shall provide the following services on all days during the Lease Term, unless otherwise stated below.
6.1.1 Subject to reasonable changes implemented by Landlord and to all governmental rules, regulations and guidelines applicable thereto, Landlord shall provide heating, ventilation and air conditioning (“HVAC”) capacity to the office portions of the Premises for normal office use in the Premises from Monday through Friday, during the period from 8:00 a.m. to 6:00 p.m., except for the date of observation of New Year’s Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and other locally or nationally recognized holidays as designated by Landlord (collectively, the “Holidays”). Landlord shall provide HVAC to the lab portions of the Premises on a 24/7 basis.
6.1.2 Landlord shall provide adequate electrical wiring and facilities for power for the Premises. Landlord shall designate the electricity utility provider from time to time.
6.1.3 Landlord shall provide nonexclusive automatic passenger elevator service at all times.
6.1.4 Landlord shall provide water in the Common Areas and Premises for lavatory, drinking, laboratory and landscaping purposes. Such cost shall be paid by Tenant as Additional Rent.
6.1.5 Landlord shall provide gas and sewer services and utilities to the Premises and the Project and trash pick-up from the Project as are reasonable and customary for a biotechnology project.
6.2 Overstandard Tenant Use. Tenant shall not overload the Systems and Equipment serving the Building. If Tenant desires to use HVAC for the office portions of the Premises during hours other than those for which Landlord is obligated to supply such utilities pursuant to the terms of Section 6.1 of this Lease, (i) Tenant shall give Landlord such prior notice, as Landlord shall from time to time establish as appropriate, of Tenant’s desired use, (ii) Landlord shall supply such HVAC to Tenant at such hourly cost to Tenant as Landlord shall from time to time establish, and (iii) Tenant shall pay such cost to Landlord within thirty (30) days after billing, as additional rent. The hourly after-hours HVAC cost shall be equal to (A) the actual cost incurred by Landlord to supply such after-hours HVAC on an hourly basis (but based on a one (1) hour minimum provision of such after-hours HVAC), and (B) the pro rata maintenance costs related to such after-hours HVAC.
6.3 Utilities. Tenant shall pay for all water (including the cost to service, repair and replace reverse osmosis, de-ionized and other treated water), gas, heat, light, power, telephone, internet service, cable television, other telecommunications and other utilities supplied to the Premises, together with any fees, surcharges and taxes thereon. All utilities shall be separately metered or submetered to Tenant for Premises comprising an entire building and separately submetered for Premises comprising less than an entire building).
6.4 Interruption of Use. Tenant agrees that Landlord shall not be liable for damages, by abatement of Rent or otherwise (subject to Section 6.8), for failure to furnish or delay in furnishing any service (including, but not limited to, any central plant or other lab system, telephone and telecommunication services), or for any diminution in the quality or quantity thereof, when such failure or delay or diminution is occasioned, in whole or in part, by required repairs, replacements, or improvements (in each case scheduled at reasonable times with Tenant, except in cases of emergency), by any strike, lockout or other labor trouble, by inability to secure electricity, gas, water, or other fuel at the Building or Project after reasonable effort to do so, by any accident or casualty beyond Landlord’s reasonable control, by act or default of Tenant or other parties, or by any other cause beyond Landlord’s reasonable control; and such failures or delays or diminution shall never be deemed to constitute an eviction or disturbance of Tenant’s use and possession of the Premises or, subject to Section 6.8 below, relieve Tenant from paying Rent or performing any of its obligations under this Lease. Furthermore, subject to Section 6.8 below, Landlord shall not be liable under any circumstances for a loss of, or injury to, property (including scientific research and any intellectual property) or for injury to, or interference with, Tenant’s business, including, without limitation, loss of profits, however occurring, through or in connection with or incidental to a failure to furnish any of the services or utilities as set forth in this Article 6.
6.5 Additional Services. Landlord shall also have the right, but not the obligation, at Tenant’s request, to provide any additional services which may be required by Tenant, including, without limitation, locksmithing and additional repairs and maintenance, provided that Tenant shall pay to Landlord within thirty (30) days after billing and as Additional Rent hereunder, the sum of all costs to Landlord of such additional services plus a five percent (5%) administration fee.
6.6 Janitorial Service. Landlord shall not be obligated to provide any janitorial services to the Premises or replace any light bulbs, lamps, starters and ballasts for lighting fixtures within the Premises. Tenant shall be solely responsible, at Tenant’s sole cost and expense, for (i) performing all janitorial services, trash removal and other cleaning of the Premises, and (ii) replacement of all light bulbs, lamps, starters and ballasts for lighting fixtures within the Premises, all as appropriate to maintain the Premises in a first-class manner consistent with the first-class nature of the Building and Project. Such services to be provided by Tenant shall be performed by contractors and pursuant to service contracts approved by Landlord. Tenant shall deposit trash as reasonably required in the area designated by Landlord from time to time. All trash containers must be covered and stored in a manner to prevent the emanation of odors into the Premises or the Project. Landlord shall have the right to inspect the Premises upon reasonable notice to Tenant and to require Tenant to provide additional cleaning, if necessary. In the event Tenant shall fail to provide any of the services described in this Section 6.6 to be performed by Tenant within five (5) days after notice from Landlord, which notice shall not be required in the event of an emergency, Landlord shall have the right to provide such services and any charge or cost incurred by Landlord in connection therewith shall be deemed Additional Rent due and payable by Tenant upon receipt by Tenant of a written statement of cost from Landlord.
6.7 Energy Statements. For any utilities serving the Premises for which Tenant is billed directly by such utility provider, Tenant agrees to furnish to Landlord (a) any invoices or statements for such utilities within thirty (30) days after Tenant’s receipt thereof, (b) within thirty (30) days after Landlord’s request, any other utility usage information reasonably requested by Landlord, and (c) within thirty (30) days after each calendar year during the Term, an ENERGY STAR® Statement of Performance (or similar comprehensive utility usage report if requested by Landlord) and any other information reasonably requested by Landlord for the immediately preceding year. Tenant shall retain records of utility usage at the Premises, including invoices and statements from the utility provider, for at least sixty (60) months, or such other period of time as may be requested by Landlord. Tenant acknowledges that any utility information for the Premises may be shared with third parties, including Landlord’s consultants and governmental authorities. In the event that Tenant fails to comply with this Section, Tenant hereby authorizes Landlord to collect utility usage information directly from the applicable utility providers and agree to pay Landlord a fee of One Hundred Dollars ($100.00) per month to collect such utility usage information.
6.8 Abatement of Rent When Tenant is Prevented From Using Premises. In the event that Tenant is prevented from using, and does not use, the Premises or any portion thereof, for five (5) consecutive business days (the “Eligibility Period”) as a result of (i) any repair, maintenance or alteration performed by Landlord after the applicable Lease Commencement Date and required to be performed by Landlord under this Lease or permitted pursuant to Section 5.2.9 above or Section 24.30 below, or (ii) any failure by Landlord to provide to the Premises any of the facilities for essential utilities and services required to be provided in Section 6.1 above, or (iii) any failure by Landlord to provide access to the Premises, then Tenant’s obligation to pay Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs shall be abated or reduced, as the case may be, from and after the first (1st) day following the Eligibility Period and continuing until such time that Tenant continues to be so prevented from using, and does not use, the Premises or a portion thereof, in the proportion that the rentable square feet of the portion of the Premises that Tenant is prevented from using, and does not use, bears to the total rentable square feet of the Premises; provided, however, that Tenant shall only be entitled to such abatement of rent if the matter described in clauses (i), (ii) or (iii) of this sentence is within Landlord’s reasonable control or caused by Landlord’s negligence or willful misconduct or violation of this Lease. To the extent Tenant shall be entitled to abatement of rent because of a damage or destruction pursuant to Article 11 or a taking pursuant to Article 12, then the Eligibility Period shall not be applicable.
6.9 Landlord’s Emergency Generator. Tenant shall have the right to draw Tenant’s Share of power from the emergency generator serving each Building (“Generator”) at all times when the emergency generator is in emergency operation; provided, however, that (a) Tenant may only draw Tenant’s Share of available power for Tenant’s critical power requirements (e.g., certain portions of Tenant’s labs in the Premises, Tenant’s IT room and supplemental cooling for Tenant’s IT room), and (b) in the event the Generator is replaced, Landlord shall use commercially reasonable efforts to cause any replacement emergency generator to provide at least the same electrical capacity to the Premises (as the Generator provides to the Premises) at all times when the power is out, subject to Force Majeure. Until such Generator is replaced, Landlord will use commercially reasonable efforts to cause the same to be operational at all times when power is out, subject to Force Majeure.
6.10 Tenant’s Emergency Generator. Tenant shall have the right, at Tenant’s sole cost and expense, to install and operate one (1) or more supplemental back-up generators or battery system(s) (each, a “Generator”) along with all associated equipment and any necessary cables (together with the Generator, the “Generator Equipment”) within or adjacent to or on the roof of the Premises. All of the Generator Equipment and any modifications thereto or placement thereof shall be (a) at Tenant’s sole cost and expense, (b) installed and operated to Landlord’s reasonable specifications, supervision or review and (c) installed, maintained, operated and removed in accordance with all applicable laws. The Generator Equipment shall remain the property of Tenant and, if so required by Landlord, Tenant shall remove the Generator Equipment upon the expiration or earlier termination of the Lease and repair any damage to the Project caused by such removal.
6.11 Tenant’s Security System. Tenant shall be entitled to install, at Tenant’s sole cost and expense, a separate security system for the Premises as part of the Tenant Improvements; provided, however, that any such system shall be subject to Landlord’s reasonable approval, and any such system must be compatible with the existing systems of the Project. Tenant’s obligation to indemnify, defend and hold Landlord harmless as provided in, and subject to, Article 10 below shall also apply to Tenant’s use and operation of any such system, and the installation of such system shall otherwise be subject to the terms and conditions of this Lease. At Landlord’s option, upon the expiration or earlier termination of this Lease, Tenant shall remove such security system and repair any damage to the Premises resulting from such removal. Tenant shall at all times provide Landlord with a contact person who can disarm the security system and who is familiar with the functions of the alarm system in the event of a malfunction, and Tenant shall provide Landlord with the alarm codes or other necessary information required to disarm the alarm system in the event Landlord must enter the Premises in the event of an emergency.
REPAIRS
7.1 Tenant’s Repairs. Subject to Landlord’s repair obligations in Sections 7.2 and 11.1 below, Tenant shall, at Tenant’s own expense, keep the Premises, including all improvements, fixtures and furnishings therein, in good order, repair and condition at all times during the Lease Term, which repair obligations shall include, without limitation, the obligation to promptly and adequately repair all damage to the Premises and replace or repair all damaged or broken fixtures and appurtenances, together with all portions of the HVAC, electrical, mechanical plumbing, life safety and lab systems from the point that such systems are located in and solely serves the Premises and all portions of all fume hoods and other exhaust systems that are located in and exclusively serve the Premises (all such systems collectively being referred to as the “Premises Systems”), in the condition received; provided, however, the Premises Systems shall not include the Base Building. Tenant’s obligations shall include restorations, replacements or renewals, excluding capital expenditures for restorations, replacements or renewals which will have an expected life beyond the Term (which are Landlord’s responsibility), when necessary to keep the Premises and all improvements thereon or a part thereof and the Premises Systems in the order, condition and repair received and in compliance with all applicable laws. Except as expressly set forth in this Lease, it is intended by the parties hereto that Landlord shall have no obligation, in any manner whatsoever, to repair or maintain the Premises, the improvements located therein or the equipment therein, or the Premises Systems, all of which obligations are intended to be the expense of Tenant (whether or not such repairs, maintenance or restoration shall have an expected life extending beyond the Term). Tenant’s maintenance of the Premises Systems shall comply with the manufacturers’ recommended operating and maintenance procedures. Tenant shall enter into and pay for maintenance contracts (in forms satisfactory to Landlord in its reasonable discretion, which may require, without limitation, that any third party contractor provide Landlord with evidence of insurance as required by Landlord) for the Premises Systems in accordance with the manufacturers’ recommended operating and maintenance procedures. Such maintenance contracts shall be with reputable contractors, satisfactory to Landlord in its reasonable discretion, who shall have not less than ten (10) years of experience in maintaining such systems in biotechnical facilities. Upon Landlord’s request, Tenant shall provide maintenance reports from any such contractors. Tenant shall be solely responsible for the cost of all improvements or alterations to the Premises or the Premises Systems required by law to the extent required under Article 21. Notwithstanding the foregoing, if Tenant fails to make such repairs, Landlord may, but need not, make such repairs and replacements, and Tenant shall pay Landlord the cost thereof, including a percentage of the cost thereof (to be uniformly established for the Building) sufficient to reimburse Landlord for all overhead, general conditions, fees and other costs or expenses arising from Landlord’s involvement with such repairs and replacements forthwith upon being billed for same. In addition, Landlord reserves the right, upon notice to Tenant, to procure and maintain any or all of such service contracts, and if Landlord so elects, Tenant shall reimburse Landlord, upon demand, for the costs thereof.
7.2 Landlord’s Repairs. Anything contained in Section 7.1 above to the contrary notwithstanding, and subject to Articles 11 and 12 below, Landlord shall repair and maintain the structural portions of the Building, including the plumbing, HVAC and electrical systems serving the Building and not located in and exclusively serving the Premises, and the Base Building; provided, however, to the extent such maintenance and repairs are caused by the act, neglect, fault of or omission of any duty by Tenant, its agents, servants, employees or invitees, Tenant shall pay to Landlord as Additional Rent, the reasonable cost of such maintenance and repairs. Moreover, Landlord shall perform and construct, and Tenant shall have no responsibility to perform or construct, any repair, maintenance or improvements (a) necessitated by the acts of Landlord, (b) for which Landlord has a right of reimbursement from others, and (c) to any portion of the Building outside of the demising walls of the Premises, and the common areas of the Project. There shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant’s business arising from the making of any repairs, alterations or improvements in or to any portion of the Project, Building or the Premises or in or to fixtures, appurtenances and equipment therein. Tenant hereby waives and releases its right to make repairs at Landlord’s expense under Sections 1941 and 1942 of the California Civil Code; or under any similar law, statute, or ordinance now or hereafter in effect.
7.3 Tenant’s Right to Make Repairs. Notwithstanding any of the terms set forth in this Lease to the contrary, if Tenant provides notice (“Repair Notice”) to Landlord of an event or circumstance which requires the action of Landlord with respect to repair and/or maintenance required to be performed by Landlord, which event or circumstance materially or adversely affects the conduct of Tenant’s business from the Premises, and Landlord fails to commence corrective action within a reasonable period of time, given the circumstances, after the receipt of such notice, but in any event not later than thirty (30) days after receipt of such notice, then Tenant may proceed to take the required action upon delivery of an additional three (3) business days’ notice to Landlord specifying that Tenant is taking such required action and if such action was required under the terms of this Lease to be taken by Landlord and was not commenced by Landlord within such three (3) business day period and thereafter diligently pursued to completion, then Tenant shall be entitled to prompt reimbursement by Landlord of Tenant’s reasonable costs and expenses in taking such action. Notwithstanding the foregoing, in an Emergency (as defined below), the initial thirty (30) day notice and the subsequent three (3) business day notice shall not be required, and Tenant may commence the required action upon reasonable (but not more than twenty-four (24) hours’) prior written notice to Landlord. In the event Tenant takes such action, Tenant shall use only those contractors used by Landlord in the Building for work unless such contractors are unwilling or unable to perform, or timely perform, such work, in which event Tenant may utilize the services of any other qualified contractor which normally and regularly performs similar work in Comparable Buildings. Following completion of any work taken by Tenant pursuant to the terms of this Section 7.3, Tenant shall deliver a detailed invoice of the work completed, the materials used and the costs relating thereto (“Invoice Notice”). After receipt of Tenant’s Invoice Notice, Landlord shall provide written notice to Tenant (“Landlord’s Response Notice”), setting forth with reasonable particularity Landlord’s reasons for its claim (if any) that such action did not have to be taken by Landlord pursuant to the terms of this Lease or that the charges are excessive (in which case Landlord shall pay the amount it contends would not have been excessive). If Tenant disputes Landlord’s Response Notice and Landlord and Tenant are unable to resolve such dispute then Tenant shall have the right to pursue all of its remedies under this Lease. For purposes of this Section 7.3, an “Emergency” shall mean an event threatening immediate and material danger to people located in the Building or immediate, material damage to the Building.
7.4 Tenant’s Management Option. Notwithstanding anything above to the contrary, in the event Tenant is leasing an entire building in the Project (and if and for so long as Tenant is leasing an entire building) then Tenant shall have the option (“Management Option”) to perform Landlord’s repair and maintenance obligations with respect to such building as provided in Exhibit J attached hereto. In order to exercise such Management Option, Tenant shall provide Landlord with no less than one hundred eighty (180) days prior written notice, which notice shall indicate the date (which shall be no sooner than such one hundred eighty (180) day period) Tenant will commence to perform such repair and maintenance obligations (the “Takeover Date”). In the event Tenant exercises such Management Option then, commencing as of the Takeover Date, this Article 7 shall be deemed deleted and replaced with the terms and provisions of Exhibit J, and Schedules 1 and 2 of Exhibit J will be deemed incorporated into this Lease.
ADDITIONS AND ALTERATIONS
8.1 Landlord’s Consent to Alterations. Tenant may not make any improvements, alterations, additions or changes to the Premises (collectively, the “Alterations”) without first procuring the prior written consent of Landlord to such Alterations, which consent shall be requested by Tenant not less than thirty (30) days prior to the commencement thereof, and which consent shall not be unreasonably withheld or delayed by Landlord; provided, however, Landlord may withhold its consent in its sole and absolute discretion with respect to any Alterations which may materially or adversely affect the structural components of the Building or the Systems and Equipment or which can be seen from outside the Premises (“Prohibited Alterations”). Notwithstanding the foregoing to the contrary, prior consent shall not be required with respect to painting, wall coverings and floor coverings in the interior of the Premises. In addition, Landlord’s prior consent shall not be required for Alterations which (i) are non-structural and do not materially and adversely affect any Building Systems, (ii) affect only the Premises and are not visible from outside of the Premises or the Building, (iii) other than cosmetic alterations and minor electrical, cabling and lighting work (such as adding an outlet or light switch) (the “Minor Alterations”), do not require a building permit, variance, waiver or other relief from any applicable law, (iv) comply in all respects with all applicable laws, (v) are not Prohibited Alterations, and (vi) cost less than One Hundred Fifty Thousand Dollars ($150,000.00) for any one (1) job, so long as Tenant provides Landlord with prior written notice of such proposed Alterations (other than Minor Alterations which cost less than $50,000.00 for any one (1) job) and so long as the other conditions of this Article 8 are satisfied including, without limitation, conforming to Landlord’s rules, regulations and insurance requirements which govern contractors. Tenant shall pay for all overhead, general conditions, fees and other costs and expenses of the Alterations, and shall pay to Landlord a Landlord supervision fee of the lesser of Landlord’s actual, reasonable third-party costs and two percent (2%) of the cost of the Alterations for which Landlord’s consent is required. The construction of the initial improvements to the Premises shall be governed by the terms of the Tenant Work Letter and not the terms of this Article 8.
8.2 Manner of Construction. Landlord may impose, as a condition of its consent to all Alterations or repairs of the Premises, such requirements as Landlord in its reasonable discretion may deem desirable, including, but not limited to, the requirement that Tenant utilize for such purposes only contractors, materials, mechanics and materialmen approved by Landlord; provided, however, Landlord may impose such requirements as Landlord may determine, in its sole and absolute discretion, with respect to any work materially and adversely affecting the structural components of the Building or Systems and Equipment (including designating specific contractors to perform such work). Tenant shall construct such Alterations and perform such repairs in compliance with any and all applicable rules and regulations of any federal, state, county or municipal code or ordinance and pursuant to a valid building permit, issued by the city in which the Building is located, and in conformance with Landlord’s construction rules and regulations. Landlord’s approval of the plans, specifications and working drawings for Tenant’s Alterations shall create no responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with all laws, rules and regulations of governmental agencies or authorities. All work with respect to any Alterations must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of work. Tenant shall cause all Alterations to be performed in such manner as not to obstruct access by any person to the Building or Project or the common areas, and as not to obstruct the business of Landlord or other tenants of the Project, or interfere with the labor force working at the Project. If Tenant makes any Alterations, Tenant agrees to carry “Builder’s All Risk” insurance in an amount approved by Landlord (not to exceed the first replacement value thereof) covering the construction of such Alterations, it being understood and agreed that all of such Alterations shall be insured by Tenant pursuant to Article 10 below immediately upon completion thereof. Landlord may, in its discretion, require Tenant to obtain a lien and completion bond or some alternate form of security satisfactory to Landlord in an amount sufficient to ensure the lien-free completion of such Alterations (the estimated cost of which exceeds Three Million Dollars ($3,000,000)) and naming Landlord as a co-obligee. Upon completion of any Alterations, Tenant shall (i) cause a Notice of Completion to be recorded in the office of the Recorder of the county in which the Project is located in accordance with Section 8182 of the Civil Code of the State of California or any successor statute, (ii) deliver to the management office of the Building a reproducible copy of the “as built” drawings of the Alterations, and (iii) deliver to Landlord evidence of payment, contractors’ affidavits and full and final waivers of all liens for labor, services or materials.
8.3 Landlord’s Property. All Alterations, improvements, fixtures and/or equipment which may be installed or placed in or about the Premises (including, but not limited to, all floor and wall coverings, built-in cabinet work and paneling, sinks and related plumbing fixtures, laboratory benches, exterior venting fume hoods and walk-in freezers and refrigerators, ductwork, conduits, electrical panels and circuits), shall be at the sole cost of Tenant and shall be and become the property of Landlord excluding Tenant’s fixtures and equipment, including portable benches, autoclaves, glasswashes, freezers, refrigerators, portable fume hoods, and biosafety cabinets. Furthermore, Landlord may require that Tenant remove any specialized/non-Building standard Alterations, improvements, fixtures and/or equipment (other than the Tenant Improvements) upon the expiration or early termination of the Lease Term, and repair any damage to the Premises and Building caused by such removal; provided that Landlord notifies in writing that such removal will be required at the time Landlord provides its consent to such Alterations, improvements, fixtures and/or equipment (or at the time Tenant notifies Landlord with respect to Alterations not requiring Landlord’s consent). If Tenant fails to complete such removal and/or to repair by the end of the Lease Term, Landlord may do so and may charge the cost thereof to Tenant. Notwithstanding any other provision of this Article 8 to the contrary, in no event shall Tenant remove any improvement from the Premises as to which Landlord contributed payment, including the Tenant Improvements, without Landlord’s prior written consent, which consent Landlord may withhold in its sole and absolute discretion.
8.4 Wi-Fi Network. Without limiting the generality of the foregoing, if Tenant desires to install wireless intranet, Internet and communications network (“Wi-Fi Network”) in the Premises for the use by Tenant and its employees, then the same shall be subject to the provisions of this Section 8.4 (in addition to the other provisions of this Article 8). In the event Landlord consents to Tenant’s installation of such Wi-Fi Network, Tenant shall, in accordance with Article 15 below, remove the Wi-Fi Network from the Premises prior to the termination of the Lease. Tenant shall use the Wi-Fi Network so as not to cause any interference to other tenants in the Building or to other tenants at the Project or with any other tenant’s communication equipment, and not to damage the Building or Project or interfere with the normal operation of the Building or Project, and Tenant hereby agrees to indemnify, defend and hold Landlord harmless from and against any and all claims, costs, damages, expenses and liabilities (including attorneys’ fees) arising out of Tenant’s failure to comply with the provisions of this Section 8.4, except to the extent same is caused by the negligence or willful misconduct of Landlord or Landlord’s breach of this Lease. Should any interference occur, Tenant shall take all necessary steps as soon as reasonably possible and no later than three (3) calendar days following such occurrence to correct such interference. If such interference continues after such three (3) day period, Tenant shall immediately cease operating such Wi-Fi Network until such interference is corrected or remedied to Landlord’s satisfaction. Tenant acknowledges that Landlord has granted and/or may grant telecommunication rights to other tenants and occupants of the Building and Project and to telecommunication service providers and in no event shall Landlord be liable to Tenant for any interference of the same with such Wi-Fi Network. Landlord makes no representation that the Wi-Fi Network will be able to receive or transmit communication signals without interference or disturbance. Tenant shall (i) be solely responsible for any damage caused as a result of the Wi-Fi Network, (ii) promptly pay any tax, license or permit fees charged pursuant to any laws or regulations in connection with the installation, maintenance or use of the Wi-Fi Network and comply with all precautions and safeguards recommended by all governmental authorities, (iii) pay for all necessary repairs, replacements to or maintenance of the Wi-Fi Network, and (iv) be responsible for any modifications, additions or repairs to the Building or Project, including without limitation, Building or Project systems or infrastructure, which are required by reason of the installation, operation or removal of Tenant’s Wi-Fi Network. Should Landlord be required to retain professionals to research any interference issues that may arise and confirm Tenant’s compliance with the terms of this Section 8.4, Tenant shall reimburse Landlord for the costs incurred by Landlord in connection with Landlord’s retention of such professionals, the research of such interference issues and confirmation of Tenant’s compliance with the terms of this Section 8.4 within twenty (20) days after the date Landlord submits to Tenant an invoice for such costs. This reimbursement obligation is in addition to, and not in lieu of, any rights or remedies Landlord may have in the event of a breach or default by Tenant under this Lease.
COVENANT AGAINST LIENS
Tenant has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of Tenant, operation of law or otherwise, to attach to or be placed upon the Project, Building or Premises, and any and all liens and encumbrances created by Tenant shall attach to Tenant’s interest only. Landlord shall have the right at all times to post and keep posted on the Premises any notice which it deems necessary for protection from such liens. Tenant shall not cause or permit any lien of mechanics or materialmen or others to be placed against the Project, the Building or the Premises with respect to work or services claimed to have been performed for or materials claimed to have been furnished to Tenant or the Premises, and, in case of any such lien attaching or notice of any lien, Tenant shall cause it to be immediately released and removed of record. If any such lien is not released and removed within ten (10) business days after notice of such lien is delivered by Landlord to Tenant, then Landlord may, at its option, take all action necessary to release and remove such lien, without any duty to investigate the validity thereof, and all sums, costs and expenses, including reasonable attorneys’ fees and costs, incurred by Landlord in connection with such lien shall be deemed Additional Rent under this Lease and shall immediately be due and payable by Tenant. In the event that Tenant leases or finances the acquisition of equipment, furnishings or other personal property of a removable nature utilized by Tenant in the operation of Tenant’s business, Tenant warrants that any Uniform Commercial Code financing statement shall, upon its face or by exhibit thereto, indicate that such financing statement is applicable only to removable personal property of Tenant located within the Premises. In no event shall the address of the Premises be furnished on a financing statement without qualifying language as to applicability of the lien only to removable personal property located in an identified suite leased by Tenant. Should any holder of a financing statement record or place of record a financing statement that appears to constitute a lien against any interest of Landlord or against equipment that may be located other than within an identified suite leased by Tenant, Tenant shall, within ten (10) days after Landlord’s request, cause Tenant’s lender to amend such financing statement and any other documents of record to clarify that any liens imposed thereby are not applicable to any interest of Landlord in the Premises.
INDEMNIFICATION AND INSURANCE
10.1 Indemnification and Waiver. Tenant hereby assumes all risk of damage to property and injury to persons, in, on, or about the Premises from any cause whatsoever and agrees that Landlord and the Landlord Parties shall not be liable for, and are hereby released from any responsibility for, any damage to property or injury to persons or resulting from the loss of use thereof, which damage or injury is sustained by Tenant or by other persons claiming through Tenant other than that arising from the negligence or willful misconduct of Landlord or its agents, contractors, licensees or invitees or a violation of Landlord’s obligations under this Lease or due to defects in the design or condition of the Building that were not caused by Tenant. Tenant shall indemnify, defend, protect, and hold harmless the Landlord Parties from any and all loss, cost, damage, expense and liability (including without limitation court costs and reasonable attorneys’ fees) incurred in connection with or arising from any cause in, on or about the Premises (including, without limitation, Tenant’s installation, placement and removal of Alterations, improvements, fixtures and/or equipment in, on or about the Premises), and any acts, omissions or negligence of Tenant or of any person claiming by, through or under Tenant, or of the contractors, agents, servants, employees, licensees or invitees of Tenant or any such person, in, on or about the Premises, the Building and Project; provided, however, that the terms of the foregoing indemnity shall not apply to the negligence, violation of this Lease or willful misconduct of Landlord or defects in the design or condition of the Building that were not caused by Tenant. The provisions of this Section 10.1 shall survive the expiration or sooner termination of this Lease. Notwithstanding anything in this Lease to the contrary, Landlord shall not be liable to Tenant for, and Tenant assumes all risk of, damage to personal property or scientific research or intellectual property, including loss of records kept by Tenant within the Premises, caused by fire, electrical malfunction, gas explosion or water damage of any type (including broken water lines, malfunctioning fire sprinkler systems, malfunctioning lab systems including any malfunction of the central plant systems, roof leaks or stoppages of lines). Tenant further waives any claim for injury to Tenant’s business or loss of income relating to any such damage or destruction of personal property as described above.
10.2 Tenant’s Compliance with Landlord’s Fire and Casualty Insurance. Tenant shall, at Tenant’s expense, comply as to the Premises with all insurance company requirements pertaining to Tenant’s particular use of the Premises. If Tenant’s conduct or use of the Premises causes any increase in the premium for such insurance policies, then Tenant shall reimburse Landlord for any such increase. Tenant, at Tenant’s expense, shall comply with all rules, orders, regulations or requirements of the American Insurance Association (formerly the National Board of Fire Underwriters) and with any similar body to the extent Tenant would be required to comply with the same if they were legal requirements under Article 21.
10.3 Tenant’s Insurance. Tenant shall maintain the following coverages in the following amounts (which liability insurance limits may be met by umbrella coverage):
10.3.1 Commercial General Liability Insurance covering the insured against claims of bodily injury, personal injury and property damage arising out of Tenant’s operations, assumed liabilities or use of the Premises, including a Broad Form Commercial General Liability endorsement covering the insuring provisions of this Lease, (and liquor liability coverage if alcoholic beverages are served on the Premises) for limits of liability not less than:
| Bodily Injury and | $5,000,000 each occurrence | |
| Property Damage Liability | $5,000,000 annual aggregate | |
| Personal Injury Liability | $5,000,000 each occurrence | |
|
$5,000,000 annual aggregate 0% Insured’s participation |
10.3.2 Physical Damage Insurance covering (i) all furniture, trade fixtures, equipment, merchandise and all other items of Tenant’s property on the Premises installed by, for, or at the expense of Tenant, and (ii) all other improvements, alterations and additions to the Premises contracted for by Tenant, including any improvements, alterations or additions installed at Tenant’s request above the ceiling of the Premises or below the floor of the Premises, other than the Tenant Improvements. Such insurance shall be written on a “physical loss or damage” basis under a “special form” policy, for the full replacement cost value new without deduction for depreciation of the covered items and in amounts that meet any co-insurance clauses of the policies of insurance and shall include a vandalism and malicious mischief endorsement, sprinkler leakage coverage and earthquake sprinkler leakage coverage.
10.3.3 Workers’ compensation insurance as required by law.
10.3.4 Loss-of-income, business interruption and extra-expense insurance in such amounts as will reimburse Tenant for direct and indirect loss of earnings attributable to all perils commonly insured against by prudent tenants or attributable to prevention of loss of access to the Premises or to the Building as a result of such perils.
10.3.5 If Tenant rents or owns automobiles at the Project, Tenant shall carry comprehensive automobile liability insurance having a combined single limit of not less than Two Million Dollars ($2,000,000.00) per occurrence and insuring Tenant against liability for claims arising out of ownership, maintenance or use of any owned, hired or non-owned automobiles.
10.3.6 On and after the date Tenant commences business operations in the Premises only, Environmental Liability insurance (in form and substance satisfactory to Landlord) with limits of coverage not less than Four Million Dollars ($4,000,000.00) combined per occurrence and in the aggregate insuring against any and all liability with respect to the Premises and all areas appurtenant thereto arising out of any death or injury to any person, damage or destruction of any property, other loss, cost or expense resulting from any release, spill, leak or other contamination of the Premises, or any other property surrounding the Premises attributable to the presence of Hazardous Materials. Upon Landlord’s request, Tenant shall also obtain (at Tenant’s sole cost and expense) environmental impairment liability insurance and environmental remediation liability insurance (in form and substance (including limits) acceptable to Landlord). If, at any time it reasonably appears to Landlord that Tenant is not maintaining sufficient insurance or other means of financial capacity to enable Tenant to fulfill its obligations to Landlord hereunder, whether or not then accrued, liquidated, conditional or contingent, Tenant shall procure and thereafter maintain in full force and effect such insurance or other form of financial assurance, with or from companies or persons and in form and substance reasonably acceptable to Landlord, as Landlord may from time to time reasonably request. Without limiting the generality of the foregoing, all such environmental liability insurance shall specifically insure the performance by Tenant of the indemnity provisions set forth in this Lease.
10.3.7 Form of Policies. The minimum limits of policies of insurance required of Tenant under this Lease shall in no event limit the liability of Tenant under this Lease. Such insurance shall: (i) name Landlord, and any other party it so specifies, as an additional insured; (ii) intentionally deleted; (iii) be issued by an insurance company having a rating of not less than A—/VII in Best’s Insurance Guide or which is otherwise acceptable to Landlord and licensed to do business in the state in which the Project is located; (iv) be primary insurance as to all claims thereunder and provide that any insurance carried by Landlord is excess and is non-contributing with any insurance requirement of Tenant; (v) to the extent consistent with industry custom and practice, provide that said insurance shall not be canceled or coverage changed unless thirty (30) days’ prior written notice shall have been given to Landlord and any mortgagee or ground or underlying lessor of Landlord; (vi) contain a cross-liability endorsement or severability of interest clause acceptable to Landlord; and (vii) with respect to the insurance required in Sections 10.3.1, 10.3.2 and 10.3.4 above, have deductible amounts not exceeding One Hundred Thousand Dollars ($100,000.00). Tenant shall deliver such policies or certificates thereof to Landlord on or before the earlier of the Building I Delivery Date or the Building III Delivery Date and at least thirty (30) days before the expiration dates thereof; provided, however, that the insurance required in Section 10.3.6 shall be provided by Tenant on or before the date Tenant commences business operations in the Premises. If Tenant shall fail to procure such insurance, or to deliver such policies or certificate, within such time periods, Landlord may, at its option, in addition to all of its other rights and remedies under this Lease, and without regard to any notice and cure periods set forth in Section 19.1, procure such policies for the account of Tenant, and the cost thereof shall be paid to Landlord as Additional Rent within ten (10) days after delivery of bills therefor. Tenant shall have the right to carry the insurance required hereunder in the form of blanket and/or umbrella policies.
10.4 Waiver of Subrogation. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant each hereby waive any right that either may have against the other on account of any loss or damage to their respective property to the extent such loss or damage is insurable under policies of insurance for fire and all risk coverage, theft, or other similar insurance, without regard to the negligence or willful misconduct of the entity so released. All of Landlord’s and Tenant’s repair and indemnity obligations under this Lease shall be subject to the waiver contained in this paragraph.
10.5 Additional Insurance Obligations. Tenant shall carry and maintain during the entire Lease Term, at Tenant’s sole cost and expense, increased amounts of the insurance required to be carried by Tenant pursuant to this Article 10, and such other reasonable types of insurance coverage and in such reasonable amounts covering the Premises and Tenant’s operations therein, as may be reasonably requested by Landlord so long as such amounts or types are then generally being required by landlords of comparable buildings in the general vicinity of the Building.
DAMAGE AND DESTRUCTION
11.1 Repair of Damage to Premises by Landlord. Tenant shall promptly notify Landlord of any damage to the Premises resulting from fire or any other casualty. If the Premises or any common areas of the Building or Project serving or providing access to the Premises shall be damaged by fire or other casualty, Landlord shall notify Tenant of the estimated date of completion of the repair (“Estimated Repair Completion Date”). Landlord shall promptly and diligently, subject to reasonable delays for insurance adjustment or other matters beyond Landlord’s reasonable control, and subject to all other terms of this Article 11, restore the Premises, including the Tenant Improvements and such common areas. Such restoration shall be to substantially the same condition of the Premises, including the Tenant Improvements and common areas prior to the casualty, except for modifications required by zoning and building codes and other laws or by the holder of a mortgage on the Project and/or the Building, or the lessor of a ground or underlying lease with respect to the Building, or any other modifications to the common areas deemed desirable by Landlord, provided access to the Premises and any common restrooms serving the Premises shall not be materially impaired. Upon the occurrence of any damage to the Premises, Tenant shall assign to Landlord (or to any party designated by Landlord) all insurance proceeds payable to Tenant under Tenant’s insurance required under Section 10.3 of this Lease attributable to Alterations made by Tenant (other than the Tenant Improvements), and Landlord shall repair any damage to such Alterations installed in the Premises and shall return such Alterations to their original condition; provided that if the costs of such repair of such Alterations by Landlord exceeds the amount of insurance proceeds received by Landlord therefor from Tenant’s insurance carrier, as assigned by Tenant, the excess costs of such repairs shall be paid by Tenant to Landlord prior to Landlord’s repair of the damage. In connection with such repairs and replacements of any such Alterations, Tenant shall, prior to Landlord’s commencement of such improvement work, submit to Landlord, for Landlord’s review and approval, all plans, specifications and working drawings relating thereto, and Landlord shall select the contractors to perform such improvement work. Landlord shall not be liable for any inconvenience or annoyance to Tenant or its visitors, or injury to Tenant’s business resulting in any way from such damage or the repair thereof; provided however, that if such fire or other casualty shall have damaged the Premises or common areas necessary to Tenant’s occupancy, Landlord shall allow Tenant a proportionate abatement of Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs during the time and to the extent the Premises are unusable by Tenant for its business purposes permitted under this Lease, and not occupied by Tenant as a result thereof.
11.2 Landlord’s Option to Repair. Notwithstanding Section 11.1 above to the contrary, Landlord may elect not to rebuild and/or restore the Premises, the Building and/or any other portion of the Project and instead terminate this Lease by notifying Tenant in writing of such termination within sixty (60) days after the date Landlord becomes aware of such damage, such notice to include a termination date giving Tenant ninety (90) days to vacate the Premises, but Landlord may so elect only if the Building shall be damaged by fire or other casualty or cause, and the Premises are affected, and one or more of the following conditions is present: (i) repairs cannot reasonably be substantially completed within three hundred sixty (360) days after the date of such damage (when such repairs are made without the payment of overtime or other premiums); (ii) the holder of any mortgage on the Project and/or the Building or ground or underlying lessor with respect to the Project and/or the Building shall require that at least Eight Million Dollars ($8,000,000.00) of the insurance proceeds be used to retire the mortgage debt and Tenant does not commit to pay for any uninsured amounts in excess thereof, or shall terminate the ground or underlying lease, as the case may be and Landlord elects to terminate the leases of all other tenants of the Building similarly affected by the damage and destruction; or (iii) at least Eight Million Dollars ($8,000,000.00) of the damage is not fully covered, except for deductible amounts, by Landlord’s insurance policies and Landlord elects to terminate the leases of all other tenants of the Building similarly affected by the damage and destruction and Tenant does not commit to pay for (and does pay for) any amounts as to which there are no insurance available in excess thereof; provided, however, Landlord may not exercise any of the foregoing rights to terminate this Lease if Landlord intends to restore the damage within twelve (12) months of the date of the damage. In addition, if the Premises and the Building is destroyed or damaged to any substantial extent during the last year of the Lease Term, then notwithstanding anything contained in this Article 11, Landlord shall have the option to terminate this Lease by giving written notice to Tenant of the exercise of such option within thirty (30) days after such damage, in which event this Lease shall cease and terminate as of the date of such notice. Upon any such termination of this Lease pursuant to this Section 11.2, Tenant shall pay the Base Rent and Additional Rent, properly apportioned up to such date of termination, and both parties hereto shall thereafter be discharged of all further obligations under this Lease, except for those obligations which expressly survive the expiration or earlier termination of the Lease Term. If the foregoing apply to only one Building, Landlord may terminate this Lease as to only the subject Building; provided, however, if Landlord terminates this Lease as to only one Building, Tenant shall have the right to terminate this Lease by delivering written notice thereof to Landlord within thirty (30) days after such termination.
11.3 Waiver of Statutory Provisions. The provisions of this Lease, including this Article 11, constitute an express agreement between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part of the Premises, the Building or any other portion of the Project, and any statute or regulation of the state in which the Project is located, including, without limitation, Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties, and any other statute or regulation, now or hereafter in effect, shall have no application to this Lease or any damage or destruction to all or any part of the Premises, the Building or any other portion of the Project.
11.4 Tenant’s Termination Rights Following Damage. Tenant, at any time after the damage until such rebuilding is completed, may terminate this Lease entirely or as to only the Building as to which the following applies by delivering written notice to Landlord of such termination, in which event this Lease shall terminate as of the date of the giving of such notice, in any of the following circumstances: (i) Landlord fails to restore the Premises (including reasonable means of access thereto) within a period which is sixty (60) days longer than the Estimated Repair Completion Date stated in Landlord’s notice to Tenant as the estimated rebuilding period (which sixty (60) day period shall be deemed extended due to Force Majeure delays (but not to exceed ninety (90) days for reasons other than the New Pandemic Exceptions) and/or Tenant Delays); (ii) the Estimated Completion Repair Date is more than three hundred sixty (360) days following the damage; or (iii) material damage to a material portion of the Premises occurs within the last year of the Term to the extent that in Tenant’s judgment it cannot effectively operate its business in the Building I Premises or the Building III Premises (as the case may be).
CONDEMNATION
12.1 Permanent Taking. If the whole or any substantial part of the Premises, Building or Project shall be taken by power of eminent domain or condemned by any competent authority for any public or quasi-public use or purpose, or if any adjacent property or street shall be so taken or condemned, or reconfigured or vacated by such authority in such manner as to require the use, reconstruction or remodeling of any substantial part of the Premises, Building or Project, or if Landlord shall grant a deed or other instrument in lieu of such taking by eminent domain or condemnation, Landlord shall have the option to terminate this Lease upon ninety (90) days’ notice, provided such notice is given no later than one hundred eighty (180) days after the date of such taking, condemnation, deed or other instrument. If more than ten percent (10%) of the rentable square feet of the Premises is taken, or if any of the Premises is taken that would materially interfere with Tenant’s use of the Premises, or if access to the Premises is substantially impaired due to a taking, Tenant shall have the option to terminate this Lease entirely or as to only the Building as to which the foregoing applies upon ninety (90) days’ notice, provided such notice is given no later than one hundred eighty (180) days after the date of such taking. Landlord shall be entitled to receive the entire award or payment in connection therewith, except that Tenant shall have the right to file any separate claim available to Tenant for any taking of Tenant’s personal property and fixtures belonging to Tenant and removable by Tenant upon expiration of the Lease Term pursuant to the terms of this Lease, for the unamortized value of any improvements to the Premises paid for by Tenant and for relocation expenses, so long as such claim is payable separately to Tenant. All Rent shall be apportioned as of the date of such termination, or the date of such taking, whichever shall first occur. If any part of the Premises shall be taken, and this Lease shall not be so terminated, the Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs shall be proportionately abated. Tenant hereby waives any and all rights it might otherwise have pursuant to Section 1265.130 of The California Code of Civil Procedure.
12.2 Temporary Taking. Notwithstanding anything to the contrary contained in this Article 12, in the event of a temporary taking of all or any portion of the Premises for a period of one hundred and eighty (180) days or less, then this Lease shall not terminate but the Base Rent and Tenant’s Share of Operating Expenses, Tax Expenses and Utilities Costs shall be abated for the period of such taking in proportion to the ratio that the amount of rentable square feet of the Premises taken bears to the total rentable square feet of the Premises. Landlord shall be entitled to receive the entire award made in connection with any such temporary taking.
COVENANT OF QUIET ENJOYMENT
Landlord covenants that Tenant, on paying the Rent, charges for services and other payments herein reserved and on keeping, observing and performing all the other terms, covenants, conditions, and agreements herein contained on the part of Tenant to be kept, observed and performed, shall, during the Lease Term, peaceably and quietly have, hold and enjoy the Premises subject to the terms, covenants, conditions, and agreements hereof without interference by any persons lawfully claiming by or through Landlord. The foregoing covenant is in lieu of any other covenant express or implied.
ASSIGNMENT AND SUBLETTING
14.1 Transfers. Tenant shall not, without the prior written consent of Landlord (not to be unreasonably withheld), assign, mortgage, pledge, hypothecate, encumber, or permit any lien to attach to, or otherwise transfer, this Lease or any interest hereunder, permit any assignment or other such foregoing transfer of this Lease or any interest hereunder by operation of law, sublet the Premises or any part thereof, or permit the use of the Premises by any persons other than Tenant and its employees and contractors (all of the foregoing are hereinafter sometimes referred to collectively as “Transfers” and any person to whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a “Transferee”). If Tenant shall desire Landlord’s consent to any Transfer, Tenant shall notify Landlord in writing, which notice (the “Transfer Notice”) shall include (i) the proposed effective date of the Transfer, which shall not be less than thirty (30) days nor more than one hundred eighty (180) days after the date of delivery of the Transfer Notice, (ii) a description of the portion of the Premises to be transferred (the “Subject Space”), (iii) all of the terms of the proposed Transfer, the name and address of the proposed Transferee, and a copy of all existing and/or proposed documentation pertaining to the proposed Transfer, (iv) current financial statements of the proposed Transferee certified by an officer, partner or owner thereof, (v) a list of Hazardous Materials, certified by the proposed Transferee to be true and correct, that the proposed Transferee intends to use or store in the Premises, and (vi) such other information as Landlord may reasonably require. Any Transfer made without Landlord’s prior written consent shall, at Landlord’s option, be null, void and of no effect, and shall, at Landlord’s option, constitute a default by Tenant under this Lease after the expiration of applicable notice and cure periods. Whether or not Landlord shall grant consent, within thirty (30) days after written request by Landlord, Tenant shall pay to Landlord up to Two Thousand Five Hundred Dollars ($2,500.00) to reimburse Landlord for its review and processing fees, and any legal fees incurred by Landlord in connection with Tenant’s proposed Transfer.
14.2 Landlord’s Consent. Landlord shall not unreasonably withhold, condition or delay its consent to any proposed Transfer on the terms specified in the Transfer Notice. In no event shall Landlord be deemed to be unreasonable for declining to consent to a Transfer to a transferee jeopardizing directly or indirectly the status of Landlord or any of Landlord’s affiliates as a Real Estate Investment Trust under the Internal Revenue Code of 1986 (as the same may be amended from time to time, the “Revenue Code”). Notwithstanding anything contained in this Lease to the contrary, (w) no Transfer shall be consummated on any basis such that the rental or other amounts to be paid by the occupant, assignee, manager or other transferee thereunder would be based, in whole or in part, on the income or profits derived by the business activities of such occupant, assignee, manager or other transferee; (x) Tenant shall not consummate a Transfer with any person in which Landlord owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Revenue Code); and (z) Tenant shall not consummate a Transfer with any person or in any manner that could cause any portion of the amounts received by Landlord pursuant to this Lease or any sublease, license or other arrangement for the right to use, occupy or possess any portion of the Premises to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Revenue Code, or any similar or successor provision thereto or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Revenue Code. The parties hereby agree that it shall be reasonable under this Lease and under any applicable law for Landlord to withhold consent to any proposed Transfer where one or more of the following apply, without limitation as to other reasonable grounds for withholding consent:
14.2.1 The Transferee intends to use the Subject Space for purposes which are not permitted under this Lease;
14.2.2 The Transferee is either a governmental agency or instrumentality thereof;
14.2.3 The Transfer will result in more than a safe number of occupants per floor within the Subject Space;
14.2.4 The Transferee is an assignee or subtenant of more than one (1) floor of a Building and is not a party of reasonable financial worth and/or financial stability in light of the responsibilities involved under the Lease or the applicable sublease on the date consent is requested;
14.2.5 The proposed Transfer would cause Landlord to be in violation of another lease or agreement to which Landlord is a party, or would give an occupant of the Project a right to cancel its lease;
14.2.6 The terms of the proposed Transfer will allow the Transferee to exercise a right of renewal, right of expansion, right of first offer, or other similar right held by Tenant (or will allow an assignee to occupy space to be leased by Tenant pursuant to any such right); or
14.2.7 Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee, (i) leases from Landlord space in the Project at the time of the request for consent, (ii) is negotiating with Landlord to lease space in the Project at such time, or (iii) has negotiated with Landlord during the one (1)-month period immediately preceding the Transfer Notice, in each case if Landlord then has suitable space available to such proposed Transferee.
If Landlord consents to any Transfer pursuant to the terms of this Section 14.2 (and does not exercise any recapture rights Landlord may have under Section 14.4 below), Tenant may within six (6) months after Landlord’s consent, enter into such Transfer of the Premises or portion thereof, upon substantially the same terms and conditions as are set forth in the Transfer Notice furnished by Tenant to Landlord pursuant to Section 14.1 above, provided that if there are any changes in the terms and conditions from those specified in the Transfer Notice (i) such that Landlord would initially have been entitled to refuse its consent to such Transfer under this Section 14.2, or (ii) which would cause the proposed Transfer to be more favorable to the Transferee than the terms set forth in Tenant’s original Transfer Notice, Tenant shall again submit the Transfer to Landlord for its approval and other action under this Article 14 (including Landlord’s right of recapture, if any, under Section 14.4 of this Lease).
14.3 Transfer Premium. If Landlord consents to a Transfer, as a condition thereto which the parties hereby agree is reasonable, Tenant shall pay to Landlord fifty percent (50%) of any Transfer Premium received by Tenant from such Transferee. “Transfer Premium” shall mean all rent, additional rent or other consideration payable by such Transferee in excess of the Rent and Additional Rent payable by Tenant under this Lease on a per rentable square foot basis if less than all of the Premises is transferred, after deducting the reasonable expenses incurred by Tenant for (i) any reasonable changes, alterations and improvements to the Premises in connection with the Transfer (but only to the extent approved by Landlord), (ii) any market standard brokerage commissions and attorneys’ fees in connection with the Transfer, and (iii) free rent or sublease allowances (collectively, the “Subleasing Costs”). Transfer Premium shall also include, but not be limited to, key money and bonus money paid by Transferee to Tenant in connection with such Transfer, and any payment in excess of fair market value for services rendered by Tenant to Transferee or for assets, fixtures, inventory, equipment, or furniture transferred by Tenant to Transferee in connection with such Transfer. The Transfer Premium shall be calculated as if there was no Abated Rent.
14.4 Landlord’s Option as to Subject Space. Notwithstanding anything to the contrary contained in this Article 14, if Tenant requests Landlord’s consent to Transfer that is an assignment of this Lease or a Transfer that is a sublease of more than fifty percent (50%) of the Premises and for more than seventy-five percent (75%) of the then current Lease Term, then Landlord shall have the option, by giving written notice to Tenant within thirty (30) days after receipt of any Transfer Notice, to recapture the Subject Space. Such recapture notice shall terminate this Lease with respect to the Subject Space as of the date stated in the Transfer Notice as the effective date of the proposed Transfer. If this Lease is terminated with respect to less than the entire Premises, the Rent and the L-C Amount and the Reduction L-C Amount reserved herein shall be prorated on the basis of the rentable square feet retained by Tenant in proportion to the rentable square feet contained in the Premises, and this Lease as so amended shall continue thereafter in full force and effect, and upon request of either party, the parties shall execute written confirmation of the same. If Landlord declines, or fails to elect in a timely manner to recapture the Subject Space under this Section 14.4, then, provided Landlord has consented to the proposed Transfer, Tenant shall be entitled to proceed to transfer the Subject Space to the proposed Transferee, subject to provisions of the last paragraph of Section 14.2 above.
14.5 Effect of Transfer. If Landlord consents to a Transfer: (i) the terms and conditions of this Lease shall in no way be deemed to have been waived or modified; (ii) such consent shall not be deemed consent to any further Transfer by either Tenant or a Transferee; (iii) Tenant shall deliver to Landlord, promptly after execution, an original executed copy of all documentation pertaining to the Transfer in form reasonably acceptable to Landlord; and (iv) no Transfer relating to this Lease or agreement entered into with respect thereto, whether with or without Landlord’s consent, shall relieve Tenant or any guarantor of the Lease from liability under this Lease. Landlord or its authorized representatives shall have the right at all reasonable times to audit the books, records and papers of Tenant relating to any Transfer, and shall have the right to make copies thereof. If the Transfer Premium respecting any Transfer shall be found understated, Tenant shall, within thirty (30) days after demand, pay the deficiency and Landlord’s costs of such audit.
14.6 Additional Transfers. Subject to Section 14.7 below, for purposes of this Lease, the term “Transfer” shall also include: (i) if Tenant is a partnership or limited liability company, the withdrawal or change, voluntary, involuntary or by operation of law, of more than fifty percent (50%) of the partners or members, or transfer of more than fifty percent (50%) of the partnership or membership interests, within a twelve (12)-month period, or the dissolution of the partnership without immediate reconstitution thereof; and (ii) if Tenant is a closely held corporation (i.e., whose stock or whose parent’s stock is not publicly held and not traded through an exchange or over the counter), (A) the dissolution, merger, consolidation or other reorganization of Tenant, or (B) the sale or other transfer of more than an aggregate of fifty percent (50%) of the voting shares of Tenant (other than to immediate family members by reason of gift or death or to current shareholders), within a twelve (12)-month period. Notwithstanding the foregoing, the sale, issuance or transfer of Tenant’s capital stock or membership interests pursuant to an equity financing or public offering shall not be deemed an assignment, subletting or any other Transfer of this Lease or the Premises.
14.7 Affiliated Companies/Restructuring of Business Organization. The assignment or subletting by Tenant of all or any portion of this Lease or the Premises to (i) a parent or subsidiary of Tenant, or (ii) any person or entity which controls, is controlled by or under common control with Tenant, or (iii) any entity which purchases all or substantially all of the assets or stock of Tenant in one or a series of transactions, (iv) any entity into which Tenant is merged or consolidated, or (v) in connection with any deemed Transfer due to a transfer of shares or membership interests under Section 14.6 above where Tenant remains the tenant under this Lease (all such persons or entities described in (i), (ii), (iii) and (iv) being sometimes hereinafter referred to as “Affiliates”) shall not be deemed a Transfer under this Article 14, provided that:
14.7.1 Any such Affiliate was not formed as a subterfuge to avoid the obligations of this Article 14;
14.7.2 Tenant gives Landlord prior written notice of any such assignment or sublease to an Affiliate;
14.7.3 Any such Affiliate (or Tenant, if Tenant is to remain the tenant under this Lease) has, following the effective date of any such assignment or sublease, a tangible net worth, in the aggregate, computed in accordance with generally accepted accounting principles, which is equal to or greater than Tenant as of the date of such transfer or otherwise sufficient (in Landlord’s reasonable good faith opinion) to meet the obligations of Tenant under this Lease or the applicable Transfer document;
14.7.4 Any such assignment or sublease, exclusive of such Transfer as may occur pursuant to Section 14.6, shall be subject to all of the terms and provisions of this Lease, and such assignee or sublessee shall assume, in a written document reasonably satisfactory to Landlord and delivered to Landlord upon or prior to the effective date of such assignment or sublease, all the obligations of Tenant under this Lease; and
14.7.5 Tenant shall remain fully liable for all obligations to be performed by Tenant under this Lease.
An Affiliate that is an assignee of Original Tenant’s entire interest in this Lease may be referred to as an “Affiliate Assignee.”
SURRENDER; OWNERSHIP AND REMOVAL OF PERSONAL PROPERTY
15.1 Surrender of Premises. No act or thing done by Landlord or any agent or employee of Landlord during the Lease Term shall be deemed to constitute an acceptance by Landlord of a surrender of the Premises unless such intent is specifically acknowledged in a writing signed by Landlord. The delivery of keys to the Premises to Landlord or any agent or employee of Landlord shall not constitute a surrender of the Premises or effect a termination of this Lease, whether or not the keys are thereafter retained by Landlord, and notwithstanding such delivery Tenant shall be entitled to the return of such keys at any reasonable time upon request until this Lease shall have been properly terminated. The voluntary or other surrender of this Lease by Tenant, whether accepted by Landlord or not, or a mutual termination hereof, shall not work a merger, and at the option of Landlord shall operate as an assignment to Landlord of all subleases or subtenancies affecting the Premises.
15.2 Removal of Tenant Property by Tenant. Upon the expiration of the Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject to the provisions of this Article 15, quit and surrender possession of the Premises to Landlord in as good order and condition as when Tenant took possession and as thereafter improved by Landlord and/or Tenant, reasonable wear and tear, casualties, alterations or other interior improvements which Tenant is permitted to surrender at the termination of this Lease and repairs which are not the responsibility of Tenant hereunder excepted. Tenant’s restoration obligations may also include satisfying Landlord’s commercially reasonable procedures regarding the cleaning of any lab systems and sealing any connection points of any such lab systems to the Premises, all at Tenant’s sole cost and expense. At least ten (10) days prior to Tenant’s surrender of possession of any part of the Premises, Tenant shall provide Landlord with (a) a facility decommissioning and Hazardous Materials closure plan for the Premises (“Exit Survey”) prepared by an independent third party reasonably acceptable to Landlord, and (b) written evidence of all appropriate governmental releases obtained by Tenant in accordance with applicable laws, including laws pertaining to the surrender of the Premises. In addition, Tenant agrees to remain responsible after the surrender of the Premises for the remediation of any recognized environmental conditions set forth in the Exit Survey and caused by Tenant or any Tenant’s Parties and compliance with any recommendations set forth in the Exit Survey. Tenant shall, upon the expiration or earlier termination of this Lease, furnish to Landlord evidence that Tenant has closed all governmental permits and licenses, if any, issued in connection with Tenant’s or Tenant’s Parties’ activities at the Premises. If any such governmental permits or licenses have been issued and Tenant fails to provide evidence of such closure on or before the expiration or earlier termination of this Lease, then until Tenant does so, the holdover provisions of Article 16 of this Lease shall apply if a third party is unable to use the Premises as a result thereof. Upon such expiration or termination, Tenant shall, without expense to Landlord, remove or cause to be removed from the Premises all telephone, data, and other cabling and wiring (including any cabling and wiring associated with the Wi-Fi Network, if any) installed or caused to be installed by Tenant (including any cabling and wiring, installed above the ceiling of the Premises or below the floor of the Premises), all debris and rubbish, and such items of furniture, equipment, free-standing cabinet work, and other articles of personal property owned by Tenant or installed or placed by Tenant at its expense in the Premises, and such similar articles of any other persons claiming under Tenant, as Landlord may, in its sole discretion, require to be removed, and Tenant shall repair at its own expense all damage to the Premises and Building resulting from such removal. In no event shall Tenant be required to remove (and Tenant shall not remove) any of the Tenant Improvements installed pursuant to Exhibit B. Tenant’s obligations under this Section 15.2 shall survive the expiration or earlier termination of this Lease.
HOLDING OVER
If Tenant holds over after the expiration of the Lease Term hereof, with or without the express or implied consent of Landlord, such tenancy shall not constitute a renewal hereof or an extension for any further term, and in such case Base Rent shall be payable at a monthly rate (prorated for partial months) equal to one hundred fifty percent (150%) of the Base Rent applicable during the last rental period of the Lease Term under this Lease. Such tenancy shall be subject to every other term, covenant and agreement contained herein. Landlord hereby expressly reserves the right to require Tenant to surrender possession of the Premises to Landlord as provided in this Lease upon the expiration or other termination of this Lease. The provisions of this Article 16 shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at law. If Tenant fails to surrender the Premises upon the termination or expiration of this Lease, in addition to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from all loss, costs (including reasonable attorneys’ fees) and liability resulting from such failure, including, without limiting the generality of the foregoing, any claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom.
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by Landlord, Tenant shall execute and deliver to Landlord an estoppel certificate, which, as submitted by Landlord, shall be in the form as may be reasonably required by any prospective mortgagee or purchaser of the Project (or any portion thereof), indicating therein any exceptions thereto that may exist at that time, and shall also contain any other information reasonably requested by Landlord or Landlord’s mortgagee or Landlord’s prospective mortgagees. Tenant shall execute and deliver whatever other instruments may be reasonably required for such purposes. Failure of Tenant to timely execute and deliver such estoppel certificate or other instruments shall constitute an acceptance of the Premises and an acknowledgment by Tenant that statements included in the estoppel certificate are true and correct, without exception. Failure by Tenant to so deliver such estoppel certificate shall be a material default of the provisions of this Lease after the expiration of applicable notice and cure periods. In addition, Tenant shall be liable to Landlord, and shall indemnify Landlord from and against any loss, cost, damage or expense, incidental, consequential, or otherwise, including attorneys’ fees, arising or accruing directly or indirectly, from any failure of Tenant to execute or deliver to Landlord any such estoppel certificate. Upon request from time to time, which request may only be made if Landlord is selling, financing or refinancing the Building (including in connection with any Landlord entity level financing/restructuring) and if Tenant is not then publicly traded, Tenant agrees to provide to Landlord, within ten (10) days after Landlord’s delivery of written request therefor, current financial statements for Tenant, dated no earlier than one (1) year prior to such written request, certified as accurate by Tenant or, if available, audited financial statements prepared by an independent certified public accountant with copies of the auditor’s statement. If any guaranty is executed in connection with this Lease, Tenant also agrees to deliver to Landlord, within ten (10) days after Landlord’s delivery of written request therefor, current financial statements of the guarantor in a form consistent with the foregoing criteria. Landlord shall hold all such statements confidentially.
SUBORDINATION
This Lease is subject and subordinate to all present and future ground leases of the Project and to the lien of any mortgages or trust deeds, now or hereafter in force against the Project, if any, and to all renewals, extensions, modifications, consolidations and replacements thereof, and to all advances made or hereafter to be made upon the security of such mortgages or trust deeds, unless the holders of such mortgages or trust deeds, or the lessors under such ground lease, require in writing that this Lease be superior thereto; provided, however, that a condition precedent to the subordination of this Lease to any future ground or underlying lease or to the lien of any future mortgage or deed of trust is that Landlord shall obtain for the benefit of Tenant a commercially reasonable subordination, non-disturbance and attornment agreement from the landlord or lender of such future instrument. Tenant covenants and agrees in the event any proceedings are brought for the foreclosure of any such mortgage, or if any ground lease is terminated, to attorn, without any deductions or set-offs whatsoever, to the purchaser upon any such foreclosure sale, or to the lessor of such ground lease, as the case may be, if so requested to do so by such purchaser or lessor, and to recognize such purchaser or lessor as the lessor under this Lease. Tenant shall, within ten (10) days of request by Landlord, execute such further instruments or assurances as Landlord may reasonably deem necessary to evidence or confirm the subordination or superiority of this Lease to any such mortgages, trust deeds, or ground leases. Tenant waives the provisions of any current or future statute, rule or law which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of the Tenant hereunder in the event of any foreclosure proceeding or sale. Within sixty (60) days after the execution of this Lease (or as soon thereafter as reasonably possible), Landlord shall obtain a non-disturbance agreement from the holder of any preexisting mortgage encumbering the Building in the form attached hereto as Exhibit E, which Tenant agrees to promptly execute.
TENANT’S DEFAULTS; LANDLORD’S REMEDIES
19.1 Events of Default by Tenant. All covenants and agreements to be kept or performed by Tenant under this Lease shall be performed by Tenant at Tenant’s sole cost and expense and without any reduction of Rent. The occurrence of any of the following shall constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent, Additional Rent or any other charge required to be paid under this Lease, or any part thereof, when due; and the continuation of such failure for more than five (5) days following Tenant’s receipt of written notice of delinquency; provided, however, that any such notice shall be in addition to any notice required under California Code of Civil Procedure Section 1161 and any similar or successor law; or
19.1.2 Any failure by Tenant to observe or perform any other provision, covenant or condition of this Lease to be observed or performed by Tenant (other than the payment of Rent or Additional Rent) where such failure continues for thirty (30) days after written notice thereof from Landlord to Tenant; provided however, that any such notice shall be in addition to any notice required under California Code of Civil Procedure Section 1161 or any similar or successor law; and provided further that if the nature of such default is such that the same cannot reasonably be cured within a thirty (30)-day period, Tenant shall not be deemed to be in default if it diligently commences such cure within such period and thereafter diligently proceeds to rectify and cure said default as soon as possible; or
19.1.3 Abandonment of the Premises by Tenant.
19.1.4 Tenant makes an assignment for the benefit of creditors.
19.1.5 A receiver, trustee or custodian is appointed to or does take title, possession or control of all or substantially all of Tenant’s assets.
19.1.6 Tenant files a voluntary petition under the United States Bankruptcy Code or any successor statute (as the same may be amended from time to time, (the “Bankruptcy Code”) or an order for relief is entered against Tenant pursuant to a voluntary or involuntary proceeding commenced under any chapter of the Bankruptcy Code.
19.1.7 Any involuntary petition is filed against Tenant under any chapter of the Bankruptcy Code and is not dismissed within one hundred twenty (120) days.
19.1.8 Tenant fails to deliver an estoppel certificate in accordance with Article 17 within three (3) days after written notice of such failure.
19.1.9 Tenant’s interest in this Lease is attached, executed upon or otherwise judicially seized and such action is not released within one hundred twenty (120) days of the action.
19.2 Landlord’s Remedies Upon Default. Upon the occurrence of any such default by Tenant, Landlord shall have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim for damages therefor; and Landlord may recover from Tenant the following:
(i) the worth at the time of award of any unpaid rent which has been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, specifically including but not limited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; plus
(v) at Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law.
The term “rent” as used in this Section 19.2 shall be deemed to be and to mean all sums of every nature required to be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or to others. As used in Sections 19.2.1(i) and (ii), above, the “worth at the time of award” shall be computed by allowing interest at the Interest Rate set forth in Section 4.5 above. As used in Section 19.2.1(iii) above, the “worth at the time of award” shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%).
19.2.2 Landlord shall have the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Landlord does not elect to terminate this Lease on account of any default by Tenant, Landlord may, from time to time, without terminating this Lease, enforce all of its rights and remedies under this Lease, including the right to recover all rent as it becomes due.
19.2.3 Landlord may, but shall not be obligated to, make any such payment or perform or otherwise cure any such obligation, provision, covenant or condition on Tenant’s part to be observed or performed (and may enter the Premises for such purposes). In the event of Tenant’s failure to perform any of its obligations or covenants under this Lease, and such failure to perform poses a material risk of injury or harm to persons or damage to or loss of property, then Landlord shall have the right to cure or otherwise perform such covenant or obligation at any time after such failure to perform by Tenant, whether or not any such notice or cure period set forth in Section 19.1 above has expired. Any such actions undertaken by Landlord pursuant to the foregoing provisions of this Section 19.2.3 shall not be deemed a waiver of Landlord’s rights and remedies as a result of Tenant’s failure to perform and shall not release Tenant from any of its obligations under this Lease.
19.3 Payment by Tenant. Tenant shall pay to Landlord, within ten (10) days after delivery by Landlord to Tenant of statements therefor: (i) sums equal to expenditures reasonably made and obligations incurred by Landlord in connection with Landlord’s performance or cure of any of Tenant’s obligations pursuant to the provisions of Section 19.2.3 above; and (ii) sums equal to all expenditures made and obligations incurred by Landlord in collecting or attempting to collect the Rent or in enforcing or attempting to enforce any rights of Landlord under this Lease or pursuant to law, including, without limitation, all legal fees and other amounts so expended. Tenant’s obligations under this Section 19.3 shall survive the expiration or sooner termination of the Lease Term.
19.4 Sublessees of Tenant. If Landlord elects to terminate this Lease on account of any default by Tenant, as set forth in this Article 19, Landlord shall have the right to terminate any and all subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant and affecting the Premises or may, in Landlord’s sole discretion, succeed to Tenant’s interest in such subleases, licenses, concessions or arrangements. If Landlord elects to succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of the date of notice by Landlord of such election, have no further right to or interest in the rent or other consideration receivable thereunder.
19.5 Waiver of Default. No waiver by Landlord of any violation or breach by Tenant of any of the terms, provisions and covenants herein contained shall be deemed or construed to constitute a waiver of any other or later violation or breach by Tenant of the same or any other of the terms, provisions, and covenants herein contained. Forbearance by Landlord in enforcement of one or more of the remedies herein provided upon a default by Tenant shall not be deemed or construed to constitute a waiver of such default. The acceptance of any Rent hereunder by Landlord following the occurrence of any default, whether or not known to Landlord, shall not be deemed a waiver of any such default, except only a default in the payment of the Rent so accepted.
19.6 Efforts to Relet. For the purposes of this Article 19, Tenant’s right to possession shall not be deemed to have been terminated by efforts of Landlord to relet the Premises, by its acts of maintenance or preservation with respect to the Premises, or by appointment of a receiver to protect Landlord’s interests hereunder. The foregoing enumeration is not exhaustive, but merely illustrative of acts which may be performed by Landlord without terminating Tenant’s right to possession.
19.7 Bankruptcy. In the event a debtor, trustee or debtor in possession under the Bankruptcy Code, or another person with similar rights, duties and powers under any other applicable laws, proposes to cure any default under this Lease or to assume or assign this Lease and is obliged to provide adequate assurance to Landlord that (a) a default shall be cured, (b) Landlord shall be compensated for its damages arising from any breach of this Lease and (c) future performance of Tenant’s obligations under this Lease shall occur, then such adequate assurances shall include any or all of the following, as designated by Landlord in its sole and absolute discretion:
(i) Those acts specified in the Bankruptcy Code or other applicable laws as included within the meaning of “adequate assurance,” even if this Lease does not concern a shopping center or other facility described in such applicable laws;
(ii) A prompt cash payment to compensate Landlord for any monetary defaults or actual damages arising directly from a breach of this Lease;
(iii) A cash deposit in an amount at least equal to the then-current amount of the Security Deposit; or
(iv) The assumption or assignment of all of Tenant’s interest and obligations under this Lease.
LETTER OF CREDIT
20.1 Delivery of Letter of Credit. Concurrently with Tenant’s execution and delivery of this Lease, Tenant shall deliver to Landlord an unconditional, clean, irrevocable letter of credit (the “L-C”) in the amount set forth in Section 10 of the Summary (the “L-C Amount”), which L-C shall be issued by a money-center, solvent and nationally recognized bank (a bank which accepts deposits, maintains accounts, has a California office which will negotiate a letter of credit, or will accept draw requests by facsimile or overnight courier, and whose deposits are insured by the FDIC) reasonably acceptable to Landlord (such approved, issuing bank being referred to herein as the “Bank”), which Bank must have a short term Fitch Rating which is not less than “F1”, and a long term Fitch Rating which is not less than “A”(or in the event such Fitch Ratings are no longer available, a comparable rating from Standard and Poor’s Professional Rating Service or Moody’s Professional Rating Service) (collectively, the “Bank’s Credit Rating Threshold”), and which L-C shall be in the form of Exhibit F attached hereto. Landlord hereby approves of Silicon Valley Bank as the Bank. Tenant shall pay all expenses, points and/or fees incurred by Tenant in obtaining the L-C. The L-C shall (i) be “callable” at sight, irrevocable and unconditional, (ii) be maintained in effect, whether through renewal or extension, for the period commencing on the date of this Lease and continuing until the date (the ” L-C Expiration Date”) that is no less than sixty (60) days after the expiration of the Lease Term as the same may be extended, and Tenant shall deliver a new L-C or certificate of renewal or extension to Landlord at least thirty (30) days prior to the expiration of the L-C then held by Landlord, without any action whatsoever on the part of Landlord, (iii) be fully assignable by Landlord, its successors and assigns, (iv) permit partial draws and multiple presentations and drawings, and (v) be otherwise subject to the International Standby Practices-ISP 98, International Chamber of Commerce Publication #590. Landlord, or its then managing agent, shall have the right to draw down an amount up to the face amount of the L-C if any of the following shall have occurred or be applicable: (A) such amount is due to Landlord under the terms and conditions of this Lease and is not paid within applicable notice and cure periods, or (B) Tenant has filed a voluntary petition under the U. S. Bankruptcy Code or any state bankruptcy code (collectively, “Bankruptcy Code”), or (C) an involuntary petition has been filed against Tenant under the Bankruptcy Code and is not dismissed within sixty (60) days, or (D) the Lease has been rejected, or is deemed rejected, under Section 365 of the U.S. Bankruptcy Code, following the filing of a voluntary petition by Tenant under the Bankruptcy Code, or the filing of an involuntary petition against Tenant under the Bankruptcy Code, or (E) the Bank has notified Landlord that the L-C will not be renewed or extended through the L-C Expiration Date and Tenant fails to provide a replacement letter of credit that complies with the requirements in this section at least thirty (30) days before the expiration date of the L-C, or (F) Tenant is placed into receivership or conservatorship, or becomes subject to similar proceedings under Federal or State law that is not dismissed within sixty (60) days, or (G) Tenant executes an assignment for the benefit of creditors, or (H) if (1) any of the Bank’s Fitch Ratings (or other comparable ratings to the extent the Fitch Ratings are no longer available) have been reduced below the Bank’s Credit Rating Threshold, or (2) there is otherwise a material adverse change in the financial condition of the Bank, and Tenant has failed to provide Landlord with a replacement letter of credit, conforming in all respects to the requirements of this Article 20 (including, but not limited to, the requirements placed on the issuing Bank more particularly set forth in this Section 20.1 above), in the amount of the applicable L-C Amount, within ten (10) business days following Landlord’s written demand therefor (with no other notice or cure or grace period being applicable thereto, notwithstanding anything in this Lease to the contrary) (each of the foregoing being an “L-C Draw Event”). The L-C shall be honored by the Bank regardless of whether Tenant disputes Landlord’s right to draw upon the L-C. In addition, in the event the Bank is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation or any successor or similar entity, then, effective as of the date such receivership or conservatorship occurs, said L-C shall be deemed to fail to meet the requirements of this Article 21, and, within ten (10) business days following Landlord’s notice to Tenant of such receivership or conservatorship (the “L-C FDIC Replacement Notice”), Tenant shall replace such L-C with a substitute letter of credit from a different issuer (which issuer shall meet or exceed the Bank’s Credit Rating Threshold and shall otherwise be acceptable to Landlord in its reasonable discretion) and that complies in all respects with the requirements of this Article 20. If Tenant fails to replace such L-C with such conforming, substitute letter of credit pursuant to the terms and conditions of this Section 20.1, then, notwithstanding anything in this Lease to the contrary, Landlord shall have the right to declare Tenant in default of this Lease for which there shall be no notice or grace or cure periods being applicable thereto (other than the aforesaid ten (10) business day period). In the event of an assignment by Tenant of its interest in the Lease (and irrespective of whether Landlord’s consent is required for such assignment), the acceptance of any replacement or substitute letter of credit by Landlord from the assignee shall be subject to Landlord’s prior written approval, in Landlord’s reasonable discretion. In the event that Landlord draws upon the L-C (i) solely due to Tenant’s failure to renew or replace the L-C on a timely basis, such failure shall not constitute a default hereunder and (ii) Tenant shall at any time thereafter be entitled to provide Landlord with a replacement L-C that satisfies the requirements hereunder, at which time Landlord shall return the cash proceeds of the original L-C drawn by Landlord.
20.2 Application of L-C. Tenant hereby acknowledges and agrees that Landlord is entering into this Lease in material reliance upon the ability of Landlord to draw upon the L-C upon the occurrence of any L-C Draw Event. In the event of any L-C Draw Event, Landlord may, but without obligation to do so, and without notice to Tenant (except in connection with an L-C Draw Event under Section 20.1(H) above), draw upon the L-C, in part or in whole, to cure any such L-C Draw Event and/or to compensate Landlord for any and all damages of any kind or nature sustained or which Landlord reasonably estimates that it will sustain resulting from Tenant’s breach or default of the Lease or other L-C Draw Event and/or to compensate Landlord for any and all damages arising out of, or incurred in connection with, the termination of this Lease, including, without limitation, those specifically identified in Section 1951.2 of the California Civil Code. The use, application or retention of the L-C, or any portion thereof, by Landlord shall not prevent Landlord from exercising any other right or remedy provided by this Lease or by any applicable law, it being intended that Landlord shall not first be required to proceed against the L-C, and such L-C shall not operate as a limitation on any recovery to which Landlord may otherwise be entitled. Tenant agrees not to interfere in any way with payment to Landlord of the proceeds of the L-C, either prior to or following a “draw” by Landlord of any portion of the L-C, regardless of whether any dispute exists between Tenant and Landlord as to Landlord’s right to draw upon the L-C. No condition or term of this Lease shall be deemed to render the L-C conditional to justify the issuer of the L-C in failing to honor a drawing upon such L-C in a timely manner. Tenant agrees and acknowledges that (i) the L-C constitutes a separate and independent contract between Landlord and the Bank, (ii) Tenant is not a third party beneficiary of such contract, (iii) Tenant has no property interest whatsoever in the L-C or the proceeds thereof, and (iv) in the event Tenant becomes a debtor under any chapter of the Bankruptcy Code, Tenant is placed into receivership or conservatorship, and/or there is an event of a receivership, conservatorship or a bankruptcy filing by, or on behalf of, Tenant, neither Tenant, any trustee, nor Tenant’s bankruptcy estate shall have any right to restrict or limit Landlord’s claim and/or rights to the L-C and/or the proceeds thereof by application of Section 502(b)(6) of the U. S. Bankruptcy Code or otherwise.
20.3 L-C Amount; Maintenance of L-C by Tenant; Liquidated Damages.
20.3.1 L-C Amount. The L-C Amount shall be equal to the amount set forth in Section 10 of the Summary (but subject to reduction as provided in Section 20.9 below).
20.3.2 In General. If, as a result of any drawing by Landlord of all or any portion of the L-C, the amount of the L-C shall be less than the L-C Amount, Tenant shall, within five (5) business days thereafter, provide Landlord with (i) an amendment to the L-C restoring such L-C to the L-C Amount or (ii) additional L-Cs in an amount equal to the deficiency, which additional L-Cs shall comply with all of the provisions of this Article 20. If Tenant fails to comply with the foregoing, Landlord shall send a second notice requesting that Tenant provide Landlord with (i) an amendment to the L-C restoring such L-C to the L-C Amount or (ii) additional L-Cs in an amount equal to the deficiency. If Tenant fails to provide Landlord with (i) an amendment to the L-C restoring such L-C to the L-C Amount or (ii) additional L-Cs in an amount equal to the deficiency within five (5) business days of receipt of such second notice, then notwithstanding anything to the contrary contained in Section 19.1, the same shall constitute a default by Tenant under this Lease (without the need for any additional notice and/or cure period). Tenant further covenants and warrants that it will neither assign nor encumber the L-C or any part thereof and that neither Landlord nor its successors or assigns will be bound by any such assignment, encumbrance, attempted assignment or attempted encumbrance.
20.3.3 Without limiting the generality of the foregoing, if the L-C expires earlier than the L-C Expiration Date, Landlord will accept a renewal thereof (such renewal letter of credit to be in effect and delivered to Landlord, as applicable, not later than thirty (30) days prior to the expiration of the L-C), which shall be irrevocable and automatically renewable as above provided through the L-C Expiration Date upon the same terms as the expiring L-C or such other terms as may be acceptable to Landlord in its sole discretion. However, if the L-C is not timely renewed, or if Tenant fails to maintain the L-C in the amount and in accordance with the terms set forth in this Article 20, Landlord shall have the right to either (x) present the L-C to the Bank in accordance with the terms of this Article 20, and the proceeds of the L-C may be applied by Landlord against any Rent payable by Tenant under this Lease that is not paid when due and/or to pay for all losses and damages that Landlord (a) has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach or default by Tenant under this Lease and (b) is permitted to recover in accordance with the other terms and conditions of this Lease, or (y) pursue its remedy under Section 20.3.3 below. In the event Landlord elects to exercise its rights under the foregoing item (x), Landlord agrees to pay to Tenant within thirty (30) days after the L-C Expiration Date the amount of any proceeds of the L-C received by Landlord and not applied against any Rent payable by Tenant under this Lease that was not paid when due or used to pay for any losses and/or damages suffered by Landlord (or reasonably estimated by Landlord that it will suffer) as a result of any breach or default by Tenant under this Lease.
20.4 Transfer and Encumbrance. The L-C shall provide that Landlord, its successors and assigns, may, at any time and without notice to Tenant and without first obtaining Tenant’s consent thereto, transfer (one or more times) all or any portion of its interest in and to the L-C to another party, person or entity, in connection with the assignment by Landlord of its rights and interests in and to this Lease, or separate from this Lease if such assignment is to Landlord’s lender. In the event of a transfer of Landlord’s interest in the Building, Landlord shall transfer the L-C to the transferee and thereupon Landlord shall, without any further agreement between the parties, provided the transferee assumes all of Landlord’s obligations hereunder, be released by Tenant from all liability therefor, and it is agreed that the provisions hereof shall apply to every transfer or assignment of said L-C to a new landlord. In connection with any such transfer of the L-C by Landlord, Tenant shall, at Tenant’s sole cost and expense, execute and submit to the Bank such applications, documents and instruments as may be reasonably necessary to effectuate such transfer, and Landlord shall be responsible for paying the Bank’s reasonable transfer and processing fees in connection therewith.
20.5 L-C Not a Security Deposit. Landlord and Tenant (1) acknowledge and agree that in no event or circumstance shall the L-C or any renewal thereof or substitute therefor or any proceeds thereof be deemed to be or treated as a “security deposit” under any law applicable to security deposits in the commercial context, including, but not limited to, Section 1950.7 of the California Civil Code, as such Section now exists or as it may be hereafter amended or succeeded (the “Security Deposit Laws”), (2) acknowledge and agree that the L-C (including any renewal thereof or substitute therefor or any proceeds thereof) is not intended to serve as a security deposit, and the Security Deposit Laws shall have no applicability or relevancy thereto, and (3) waive any and all rights, duties and obligations that any such party may now, or in the future will, have relating to or arising from the Security Deposit Laws. Tenant hereby irrevocably waives and relinquishes the provisions of Section 1950.7 of the California Civil Code and any successor statute, and all other provisions of law, now or hereafter in effect, which (x) establish the time frame by which a landlord must refund a security deposit under a lease, and/or (y) provide that a landlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by a tenant or to clean the premises, it being agreed that Landlord may, in addition, claim those sums specified in this Article 20 and/or those sums reasonably necessary to (a) compensate Landlord for any loss or damage caused by Tenant’s breach of this Lease, including any damages Landlord suffers following termination of this Lease, and/or (b) compensate Landlord for any and all damages arising out of, or incurred in connection with, the termination of this Lease, including, without limitation, those specifically identified in Section 1951.2 of the California Civil Code.
20.6 Non-Interference By Tenant. Tenant agrees not to interfere in any way with any payment to Landlord of the proceeds of the L-C, either prior to or following a “draw” by Landlord of all or any portion of the L-C, regardless of whether any dispute exists between Tenant and Landlord as to Landlord’s right to draw down all or any portion of the L-C. No condition or term of this Lease shall be deemed to render the L-C conditional and thereby afford the Bank a justification for failing to honor a drawing upon such L-C in a timely manner. Tenant shall not request or instruct the Bank of any L-C to refrain from paying sight draft(s) drawn under such L-C.
20.7 Waiver of Certain Relief. Tenant unconditionally and irrevocably waives (and as an independent covenant hereunder, covenants not to assert) any right to claim or obtain any of the following relief in connection with the L-C:
20.7.1 A temporary restraining order, temporary injunction, permanent injunction, or other order that would prevent, restrain or restrict the presentment of sight drafts drawn under any L-C or the Bank’s honoring or payment of sight draft(s); or
20.7.2 Any attachment, garnishment, or levy in any manner upon either the proceeds of any L-C or the obligations of the Bank (either before or after the presentment to the Bank of sight drafts drawn under such L-C) based on any theory whatsoever.
20.8 Remedy for Improper Drafts. Tenant’s sole remedy in connection with the improper presentment or payment of sight drafts drawn under any L-C shall be the right to obtain from Landlord a refund of the amount of any sight draft(s) that were improperly presented or the proceeds of which were misapplied, together with interest at the Interest Rate and reasonable actual out-of-pocket attorneys’ fees, provided that at the time of such refund, Tenant increases the amount of such L-C to the amount (if any) then required under the applicable provisions of this Lease. Tenant acknowledges that the presentment of sight drafts drawn under any L-C, or the Bank’s payment of sight drafts drawn under such L-C, could not under any circumstances cause Tenant injury that could not be remedied by an award of money damages, and that the recovery of money damages would be an adequate remedy therefor. In the event Tenant shall be entitled to a refund as aforesaid and Landlord shall fail to make such payment within ten (10) business days after demand, Tenant shall have the right to deduct the amount thereof together with interest thereon at the Interest Rate from the next installment(s) of Base Rent.
20.9 Reduction of L-C Amount. Provided that the “L-C Reduction Condition” (as defined below) is then satisfied, the L-C Amount shall be reduced upon the “Reduction Date” (as defined below) occurring thereafter, by the “L-C Reduction Amount”; provided, however, the L-C Amount shall never be less than Four Million Four Hundred Twenty-Seven Thousand Five Hundred Thirty and 80/100 Dollars ($4,427,530.80). The “Reduction Date” shall mean the last day of the thirty-sixth (36th) monthly anniversary of the Lease Commencement Date. The “L-C Reduction Amount” shall mean Four Million Four Hundred Twenty-Seven Thousand Five Hundred Thirty and 80/100 Dollars ($4,427,530.80). The reduction of the L-C Amount shall be effectuated by Tenant’s delivery to Landlord of a certificate of amendment to the existing L-C, conforming in all respects to the requirements of this Article 20, in the amount of the applicable reduced L-C Amount. If Tenant is allowed to reduce the L-C Amount, then Landlord shall, at no cost to Landlord, reasonably cooperate with Tenant in order to effectuate such reduction. “L-C Reduction Condition” shall mean that Tenant is not then in default under this Lease beyond any applicable notice and cure periods. If the L-C Reduction Condition is not satisfied as of the Reduction Date, then any decrease may take place retroactively upon satisfaction of the L-C Reduction Condition; provided that no decrease may take place retroactively if this Lease is terminated as a result of an Event of Default by Tenant.
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the Premises which will in any way conflict with any law, statute, ordinance or other governmental rule, regulation or requirement now in force or which may hereafter be enacted or promulgated. At its sole cost and expense, Tenant shall promptly comply with all such governmental measures, other than the making of structural changes or changes to the Building’s life safety system or alterations that would be considered capital expenditures (collectively the “Excluded Changes”); provided, however, to the extent such Excluded Changes are required due to or triggered by Tenant’s improvements or alterations to and/or manner of use of the Premises, Landlord shall perform such work, at Tenant’s cost (which shall be paid by Tenant to Landlord within ten (10) days after Tenant’s receipt of invoice therefor from Landlord). In addition, Tenant shall fully comply with all present or future legally required programs intended to manage parking, transportation or traffic in and around the Project, and in connection therewith, Tenant shall take responsible action for the transportation planning and management of all employees located at the Premises by working directly with Landlord, any governmental transportation management organization or any other transportation-related committees or entities. The judgment of any court of competent jurisdiction or the admission of Tenant in any judicial action, regardless of whether Landlord is a party thereto, that Tenant has violated any of said governmental measures, shall be conclusive of that fact as between Landlord and Tenant.
ENTRY BY LANDLORD
Landlord reserves the right at all reasonable times and upon reasonable notice to Tenant (of not less than one (1) business day except in the event of an emergency) to enter the Premises to: (i) inspect them; (ii) show the Premises to prospective purchasers, mortgagees or tenants, or to the ground lessors; (iii) to post notices of nonresponsibility; or (iv) alter, improve or repair the Premises or the Building if necessary to comply with current building codes or other applicable laws, or for structural alterations, repairs or improvements to the Building, or as Landlord may otherwise deem necessary. Notwithstanding anything to the contrary contained in this Article 22, Landlord may enter the Premises at any time, without notice to Tenant, in emergency situations and/or to perform janitorial or other services required of Landlord pursuant to this Lease. Any such entries shall be without the abatement of Rent and shall include the right to take such reasonable steps as required to accomplish the stated purposes. Tenant hereby waives any claims for damages or for any injuries or inconvenience to or interference with Tenant’s business, lost profits, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the above purposes, Landlord shall at all times have a key with which to unlock all the doors in the Premises, excluding Tenant’s vaults, safes and special security areas designated in advance by Tenant. In an emergency, Landlord shall have the right to enter without notice and use any means that Landlord may deem proper to open the doors in and to the Premises. Any entry into the Premises in the manner hereinbefore described shall not be deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an actual or constructive eviction of Tenant from any portion of the Premises. Notwithstanding the foregoing, any entry by Landlord or Landlord’s agents shall not unreasonably interfere with Tenant’s operations more than reasonably necessary, and shall comply with Tenant’s reasonable security measures, including wearing appropriate personal protective equipment (PPE) where required.
PARKING
Throughout the Lease Term, (i) Tenant shall have the right to use, on an unreserved basis, in common with other tenants of the Building and free of parking charges, the number of unreserved parking passes set forth in Section 12 of the Summary, which unreserved parking passes are located in the Parking Areas servicing the Building as shall be designated by Landlord from time to time for unreserved parking for the tenants of the Building; and (ii) Tenant shall have the right to use twenty (20) reserved parking spaces that shall not require use of a valet. The location of such reserved parking passes shall be mutually determined by Landlord and Tenant. Tenant shall (i) abide by (A) the Parking Rules and Regulations which are in effect on the date hereof, as set forth in the attached Exhibit D and all reasonable modifications and additions thereto which are prescribed from time to time for the orderly operation and use of the Parking Areas by Landlord, and/or Landlord’s Parking Operator (as defined below), and (B) all recorded covenants, conditions and restrictions affecting the Building, and (ii) cooperate in seeing that Tenant’s employees and visitors also comply with the Parking Rules and Regulations (and all such modifications and additions thereto, as the case may be), any such other rules and regulations and covenants, conditions and restrictions. Landlord (and/or any other owners of the Project) specifically reserve the right to change the size, configuration, design, layout, location and all other aspects of the Parking Areas (including without limitation, implementing paid visitor parking), and Tenant acknowledges and agrees that Landlord may, without incurring any liability to Tenant and without any abatement of Rent under this Lease, from time to time, temporarily close-off or restrict access to the Parking Areas, so long as the same does not (other than on a temporary basis of less than one (1) week) reduce the number and availability of parking passes or reserved spaces available to Tenant under this Lease. Landlord may delegate its responsibilities hereunder to a parking operator (the “Parking Operator”) in which case the Parking Operator shall have all the rights of control attributed hereby to Landlord. Any parking tax or other charges imposed by governmental authorities in connection with the use of such parking shall be paid directly by Tenant or the parking users, or, if directly imposed against Landlord, Tenant shall reimburse Landlord for all such taxes and/or charges thirty (30) days after Landlord’s demand therefor. The parking rights provided to Tenant pursuant to this Article 23 are provided solely for use by Tenant’s own personnel and such rights may not be transferred, assigned, subleased or otherwise alienated by Tenant without Landlord’s prior approval, except in connection with an assignment of this Lease or sublease of the Premises made in accordance with Article 14 above. All visitor parking by Tenant’s visitors shall be subject to availability, as reasonably determined by Landlord (and/or the Parking Operator, as the case may be), parking in such visitor parking areas as may be designated by Landlord (and/or the Parking Operator from time to time, and payment by such visitors of the prevailing visitor parking rate (if any) charged by Landlord (and/or the Parking Operator) from time to time.
MISCELLANEOUS PROVISIONS
24.1 Terms; Captions. The necessary grammatical changes required to make the provisions hereof apply either to corporations or partnerships or individuals, men or women, as the case may require, shall in all cases be assumed as though in each case fully expressed. The captions of Articles and Sections are for convenience only and shall not be deemed to limit, construe, affect or alter the meaning of such Articles and Sections.
24.2 Binding Effect. Each of the provisions of this Lease shall extend to and shall, as the case may require, bind or inure to the benefit not only of Landlord and of Tenant, but also of their respective successors or assigns, provided this clause shall not permit any assignment by Tenant contrary to the provisions of Article 14 above.
24.3 No Waiver. No waiver of any provision of this Lease shall be implied by any failure of a party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently, any waiver by a party of any provision of this Lease may only be in writing, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt of monies by Landlord from Tenant after the termination of this Lease shall in any way alter the length of the Lease Term or of Tenant’s right of possession hereunder or after the giving of any notice shall reinstate, continue or extend the Lease Term or affect any notice given Tenant prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Premises, Landlord may receive and collect any Rent due, and the payment of said Rent shall not waive or affect said notice, suit or judgment.
24.4 Modification of Lease. If any current or prospective mortgagee or ground lessor for the Project requires modifications to this Lease, which modifications will not cause an increased cost or expense to Tenant or in any other way materially and adversely change the rights and obligations of Tenant hereunder or unreasonably interfere with Tenant’s use of or access to the Premises, then and in such event, Tenant agrees that this Lease may be so modified and agrees to execute whatever reasonable documents are required therefor and deliver the same to Landlord within ten (10) days following the request therefor. If Landlord or any such current or prospective mortgagee or ground lessor require execution of a short form of Lease for recording, containing, among other customary provisions, the names of the parties, a description of the Premises and the Lease Term, Tenant shall execute such short form of Lease and to deliver the same to Landlord within ten (10) days following the request therefor.
24.5 Transfer of Landlord’s Interest. Landlord has the right to transfer all or any portion of its interest in the Project, the Building and/or in this Lease, and upon any such transfer, Landlord shall automatically be released from all liability under this Lease and Tenant shall look solely to such transferee for the performance of Landlord’s obligations hereunder after the date of transfer. The liability of any transferee of Landlord shall be limited to the amount of the interest of such transferee in the Project including all proceeds therefrom and such transferee shall otherwise be without personal liability under this Lease, and Tenant hereby expressly waives and releases such personal liability on behalf of itself and all persons claiming by, through or under Tenant. Landlord may also assign its interest in this Lease to a mortgage lender as additional security, but such assignment shall not release Landlord from its obligations hereunder and Tenant shall continue to look to Landlord for the performance of its obligations hereunder. Except for Landlord’s liability as limited under the second sentence of this Section 24.5, neither Landlord nor any of its affiliates, nor any of their respective partners, shareholders, directors, officers, employees, members or agents shall be personally liable for Landlord’s obligations or any deficiency under this Lease, and service of process shall not be made against any shareholder, member, director, officer, employee or agent of Landlord or any of Landlord’s affiliates. No partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates shall be sued or named as a party in any suit or action, and service of process shall not be made against any partner or member of Landlord except as may be necessary to secure jurisdiction of the partnership, joint venture or limited liability company, as applicable. No partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates shall be required to answer or otherwise plead to any service of process, and no judgment shall be taken or writ of execution levied against any partner, shareholder, director, officer, employee, member or agent of Landlord or any of its affiliates.
24.6 Prohibition Against Recording. Except as provided in Section 24.4 of this Lease, neither this Lease, nor any memorandum, affidavit or other writing with respect thereto, shall be recorded by Tenant or by anyone acting through, under or on behalf of Tenant, and the recording thereof in violation of this provision shall make this Lease null and void at Landlord’s election.
24.7 Landlord’s Title; Air Rights. Landlord’s title is and always shall be paramount to the title of Tenant. Nothing herein contained shall empower Tenant to do any act which can, shall or may encumber the title of Landlord. No rights to any view or to light or air over any property, whether belonging to Landlord or any other person, are granted to Tenant by this Lease.
24.8 Tenant’s Signage.
24.8.1 Interior Signage. Provided all signs are in keeping with the quality, design and style of the Building and Project, Tenant, at its sole cost and expense, may install identification signage anywhere in the Premises including, with respect to Building I, in the entry floor lobby. Tenant shall be entitled to one (1) identification sign on or near the entry doors of the Building III Premises and signage in the lobby of Building III, which shall be at least equal to that of any other tenants in Building III.
24.8.2 Prohibited Signage and Other Items. Any signs, window coverings, or blinds (even if the same are located behind the Landlord-approved window coverings for the Building), or other items visible from the exterior of the Premises or Building, shall be subject to the prior approval of Landlord, in its sole discretion.
24.8.3 Tenant’s Exterior Signage. Subject to the terms hereof and in addition to the signage rights expressly set forth above in this Section 24.8.1, Tenant, at Tenant’s sole cost and expense, shall be entitled to install, at Tenant’s sole cost, one (1) Building-top sign on Building I and Building III identifying Tenant’s name and logo thereon (including lighting) and on Tenant’s share of any monument serving the Project, as shown on Exhibit H (collectively, the “Tenant’s Signage”).
24.8.4 Specifications and Permits. The Tenant’s Signage shall set forth Tenant’s name and/or logo as determined by Tenant in its sole discretion, but subject to Landlord’s reasonable approval, and in no event shall the Tenant’s Signage include an “Objectionable Name,” as that term is defined below. The graphics, materials, color, design, lettering, lighting, size, illumination, specifications and exact locations of the Tenant’s Signage shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed, and shall be consistent and compatible with the quality and nature of the Project and Landlord’s Building standard signage specifications. In addition, the Tenant’s Signage shall be subject to Tenant’s receipt of all necessary governmental or quasi-governmental approvals and permits (collectively, “Governmental Approvals”) and shall be subject to the CC&Rs (as the same may be modified). Landlord shall use commercially reasonable efforts, at no cost to Landlord, to assist Tenant in obtaining all necessary Governmental Approvals for the Tenant’s Signage. Tenant hereby acknowledges that Landlord has made no representation or warranty to Tenant with respect to the probability of obtaining all necessary Governmental Approvals for the Tenant’s Signage. In the event Tenant does not receive the necessary Governmental Approvals for the Tenant’s Signage, Tenant’s and Landlord’s rights and obligations under the remaining terms, covenants and conditions of this Lease shall be unaffected.
24.8.5 Objectionable Name. To the extent Tenant desires to change the name and/or logo set forth on the Tenant’s Signage, such name and/or logo shall not have a name which relates to an entity which is of a character or reputation, or is associated with a political faction or orientation, which is inconsistent with the quality of the Project, or which would otherwise reasonably offend a landlord of the Comparable Buildings (an “Objectionable Name”). Landlord agrees that “Freenome” or “Freenome Holdings” is not an Objectionable Name.
24.8.6 Termination of Right to Tenant’s Signage. The building top Tenant’s Signage rights granted to Tenant under Section 24.8.3 may not be used for subtenants subleasing less than fifty percent (50%) of the space in the applicable Building; provided, however, that any such subtenant or any assignee’s right to use such building top sign rights is subject to the name of such assignee or subtenant not being an Objectionable Name.
24.8.7 Cost and Maintenance; Change and Replacement. The actual costs of the Tenant’s Signage and the installation, design, construction and any and all other costs associated with the Tenant’s Signage, including, without limitation, utility charges and hook-up fees, permits, and maintenance and repairs, shall be the sole responsibility of Tenant. Should the Tenant’s Signage require repairs and/or maintenance, as determined in Landlord’s reasonable judgment, Landlord shall have the right to provide notice thereof to Tenant and Tenant (except as set forth below) shall cause such repairs and/or maintenance to be performed within thirty (30) days after receipt of such notice from Landlord, at Tenant’s sole cost and expense; provided, however, if such repairs and/or maintenance are reasonably expected to require longer than thirty (30) days to perform, Tenant shall commence such repairs and/or maintenance within such thirty (30) day period and shall diligently prosecute such repairs and maintenance to completion. Should Tenant fail to perform such repairs and/or maintenance within the periods described in the immediately preceding sentence, Landlord shall, upon the delivery of an additional five (5) business days’ prior written notice, have the right to cause such work to be performed and to charge Tenant as Additional Rent for the actual, reasonable cost of such work. Subject to Tenant’s agreement to comply with the terms of this Section 24.8 and Landlord’s reasonable approval, Tenant shall be permitted to change and/or replace the Tenant’s Signage periodically in Tenant’s reasonable discretion. Upon the expiration or earlier termination of this Lease or upon any earlier termination of Tenant’s rights to the Tenant’s Signage as set forth herein, Tenant shall, at Tenant’s sole cost and expense, cause the Tenant’s Signage to be removed and shall repair any damage caused by such removal. If Tenant fails to timely remove the Tenant’s Signage or to restore the areas in which such the Tenant’s Signage was located, as provided in the immediately preceding sentence, then Landlord may perform such work, and all actual, reasonable costs incurred by Landlord in so performing shall be reimbursed by Tenant to Landlord within thirty (30) days after Tenant’s receipt of an invoice therefor. The terms and conditions of this Section 24.8.7 shall survive the expiration or earlier termination of the Lease.
24.9 Relationship of Parties. Nothing contained in this Lease shall be deemed or construed by the parties hereto or by any third party to create the relationship of principal and agent, partnership, joint venturer or any association between Landlord and Tenant, it being expressly understood and agreed that neither the method of computation of Rent nor any act of the parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the relationship of landlord and tenant.
24.10 Application of Payments. Landlord shall have the right to apply payments received from Tenant pursuant to this Lease, regardless of Tenant’s designation of such payments, to satisfy any obligations of Tenant hereunder, in such order and amounts as Landlord, in its sole discretion, may elect.
24.11 Time of Essence. Time is of the essence of this Lease and each of its provisions.
24.12 Partial Invalidity. If any term, provision or condition contained in this Lease shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term, provision or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision and condition of this Lease shall be valid and enforceable to the fullest extent possible permitted by law.
24.13 No Warranty. In executing and delivering this Lease, Tenant has not relied on any representation, including, but not limited to, any representation whatsoever as to the amount of any item comprising Additional Rent or the amount of the Additional Rent in the aggregate or that Landlord is furnishing the same services to other tenants, at all, on the same level or on the same basis, or any warranty or any statement of Landlord which is not set forth herein or in one or more of the Exhibits attached hereto.
24.14 Landlord Exculpation. Notwithstanding anything in this Lease to the contrary, and notwithstanding any applicable law to the contrary, the liability of Landlord and the Landlord Parties under this Lease (including any successor landlord) and any recourse by Tenant against Landlord or the Landlord Parties shall be limited solely and exclusively to an amount which is equal to the ownership interest of Landlord in the Project (including any proceeds thereof), and neither Landlord, nor any of the Landlord Parties (except for Landlord’s liability as limited in the preceding portion of this sentence) shall have any personal liability therefor, and Tenant hereby expressly waives and releases such personal liability on behalf of itself and all persons claiming by, through or under Tenant.
24.15 Entire Agreement. There are no oral agreements between the parties hereto affecting this Lease and this Lease supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and understandings, if any, between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none thereof shall be used to interpret or construe this Lease. This Lease and any side letter or separate agreement executed by Landlord and Tenant in connection with this Lease and dated of even date herewith contain all of the terms, covenants, conditions, warranties and agreements of the parties relating in any manner to the rental, use and occupancy of the Premises, shall be considered to be the only agreement between the parties hereto and their representatives and agents, and none of the terms, covenants, conditions or provisions of this Lease can be modified, deleted or added to except in writing signed by the parties hereto. All negotiations and oral agreements acceptable to both parties have been merged into and are included herein. There are no other representations or warranties between the parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Lease.
24.16 Right to Lease. Landlord reserves the absolute right to effect such other tenancies in the Building, the Other Building and/or in any other building and/or any other portion of the Project as Landlord in the exercise of its sole business judgment shall determine to best promote the interests of the Project. Tenant does not rely on the fact, nor does Landlord represent, that any specific tenant or type or number of tenants shall, during the Lease Term, occupy any space in the Building, the Other Building or Project.
24.17 Force Majeure. Any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, civil commotions, fire or other casualty, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, declarations or quarantines by a governmental entity or health organization (including, without limitation, any shelter in place orders, stay at home orders or any restrictions on travel related thereto that preclude Tenant, its agents, contractors or its employees from accessing the Premises, national or regional emergency), breaches in cybersecurity and, other causes beyond the reasonable control of the party obligated to perform, except with respect to the obligations imposed with regard to Rent and other charges to be paid by Tenant pursuant to this Lease (collectively, a “Force Majeure”), notwithstanding anything to the contrary contained in this Lease, shall excuse the performance of such party for a period equal to any such prevention, delay or stoppage and, therefore, if this Lease specifies a time period for performance of an obligation of either party, that time period shall be extended by the period of any delay in such party’s performance caused by a Force Majeure; provided, however, no event of Force Majeure shall: (i) excuse Tenant’s obligations to pay Rent and other charges due pursuant to this Lease or Tenant’s obligations under the Tenant Work Letter, (ii) be grounds for Tenant to abate any portion of Rent due pursuant to this Lease, or entitle either party to terminate this Lease, except as allowed pursuant to Articles 11 or 12 of this Lease, (iii) excuse Tenant’s obligations under Article 5 of this Lease, (iv) delay Tenant’s rights to abate or offset rent or terminate this Lease in Sections 2, 11 or 12 or Section 2.2.4 of Exhibit B; or (v) delay Tenant’s ability to abate rent in Section 6.8 in the event Landlord is delayed in remedying an event that would otherwise entitle Tenant to abatement under that section; provided, however that the foregoing shall not limit the extension of any time periods under this Lease which are expressly extended due to Force Majeure delays (subject to any express time limits in this Lease). Except as expressly provided in Section 5.6 of Exhibit B (pertaining to Landlord Delays pertaining to COVID-19), in no event shall Force Majeure events extend the Building I Lease Commencement Date nor the Building III Lease Commencement Date.
24.18 Waiver of Redemption by Tenant. Tenant hereby waives for Tenant and for all those claiming under Tenant all right now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, Tenant’s right of occupancy of the Premises after any termination of this Lease.
24.19 Notices. All notices, demands, statements or communications (collectively, “Notices”) given or required to be given by either party to the other hereunder shall be in writing, shall be (A) sent by United States certified or registered mail, postage prepaid, return receipt requested, (B) delivered by a nationally recognized overnight courier, or (C) delivered personally (i) to Tenant at the appropriate address set forth in Section 5 of the Summary, or to such other place as Tenant may from time to time designate in a Notice to Landlord; or (ii) to Landlord at the addresses set forth in Section 3 of the Summary, or to such other firm or to such other place as Landlord may from time to time designate in a Notice to Tenant. Any Notice will be deemed given three (3) business days after the date it is mailed as provided in this Section 24.19, the date overnight courier delivery is made or upon the date personal delivery is made or rejected. If Tenant is notified of the identity and address of Landlord’s mortgagee or ground lessor, Tenant shall give to such mortgagee or ground lessor written notice of any default by Landlord under the terms of this Lease by registered or certified mail, and such mortgagee or ground lessor shall be given a reasonable opportunity to cure such default prior to Tenant’s exercising any remedy available to Tenant.
24.20 Joint and Several. If there is more than one person or entity executing this Lease as Tenant, the obligations imposed upon such persons and entities under this Lease are and shall be joint and several.
24.21 Representations. Tenant guarantees, warrants and represents that (a) Tenant is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Tenant has and is duly qualified to do business in the state in which the Project is located, (c) Tenant has full corporate, partnership, trust, association or other appropriate power and authority to enter into this Lease and to perform all Tenant’s obligations hereunder, (d) each person (and all of the persons if more than one signs) signing this Lease on behalf of Tenant is duly and validly authorized to do so and (e) neither (i) the execution, delivery or performance of this Lease nor (ii) the consummation of the transactions contemplated hereby will violate or conflict with any provision of documents or instruments under which Tenant is constituted or to which Tenant is a party. In addition, Tenant guarantees, warrants and represents that it is not a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other similar governmental action.
24.22 Jury Trial; Attorneys’ Fees. IF EITHER PARTY COMMENCES LITIGATION AGAINST THE OTHER FOR THE SPECIFIC PERFORMANCE OF THIS LEASE, FOR DAMAGES FOR THE BREACH HEREOF OR OTHERWISE FOR ENFORCEMENT OF ANY REMEDY HEREUNDER, THE PARTIES HERETO AGREE TO AND HEREBY DO WAIVE ANY RIGHT TO A TRIAL BY JURY. In the event of any such commencement of litigation, the prevailing party shall be entitled to recover from the other party such costs and reasonable attorneys’ fees as may have been incurred, including any and all costs incurred in enforcing, perfecting and executing such judgment.
24.23 Governing Law. This Lease shall be construed and enforced in accordance with the laws of the state in which the Project is located.
24.24 Submission of Lease. Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or an option for lease, and it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant.
24.25 Brokers. Landlord and Tenant each hereby represents and warrants to the other party that it (i) has had no dealings with any real estate broker or agent in connection with the negotiation of this Lease, excepting only the real estate brokers or agents specified in Section 11 of the Summary (collectively, the “Brokers”), and (ii) knows of no other real estate broker or agent who is entitled to a commission in connection with this Lease. Each party agrees to indemnify and defend the other party against and hold the other party harmless from any and all claims, demands, losses, liabilities, lawsuits, judgments, and costs and expenses (including without limitation reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing on account of the indemnifying party’s dealings with any real estate broker or agent in connection with this Lease other than the Brokers.
24.26 Independent Covenants. This Lease shall be construed as though the covenants herein between Landlord and Tenant are independent and not dependent and Tenant hereby expressly waives the benefit of any statute to the contrary and agrees that if Landlord fails to perform its obligations set forth herein, Tenant shall not be entitled to make any repairs or perform any acts hereunder at Landlord’s expense or to any setoff of the Rent or other amounts owing hereunder against Landlord; provided, however, that the foregoing shall in no way impair the right of Tenant to commence a separate action against Landlord for any violation by Landlord of the provisions hereof so long as notice is first given to Landlord and any holder of a mortgage or deed of trust covering the Building, Project or any portion thereof, of whose address Tenant has theretofore been notified, and an opportunity is granted to Landlord and such holder to correct such violations as provided above.
24.27 Building Name and Signage. Landlord shall have the right at any time to change the name(s) of the Building, the Other Building and Project and to install, affix and maintain any and all signs on the exterior and on the interior of the Building, the Other Building and any portion of the Project as Landlord may, in Landlord’s sole discretion, desire. Tenant shall not use the names of the Building, the Other Building or Project or use pictures or illustrations of the Building, the Other Building or Project in advertising or other publicity, without the prior written consent of Landlord.
24.28 Building Directory. If the Building contains a tenant name directory, Landlord shall include Tenant’s name and location in the Building on one (1) line on the Building directory. The initial cost of such directory signage shall be paid for by Landlord, but any subsequent charges thereto shall be at Tenant’s cost.
24.29 Confidentiality. Except as may be required by law or in litigation with Landlord, Tenant shall use commercially reasonable efforts to keep the content of this Lease and any related documents confidential and not disclose such confidential information to any person or entity other than Tenant’s financial, legal, and space planning consultants, proposed subtenants and current and proposed lenders, investors and business partners.
24.30 Landlord’s Construction. Except as specifically set forth in this Lease or in the Tenant Work Letter: (i) Landlord has no obligation to alter, remodel, improve, renovate, repair or decorate the Premises, the Building, the Other Building, the Project, or any part thereof; and (ii) no representations or warranties respecting the condition of the Premises, the Building, the Other Building or the Project have been made by Landlord to Tenant. Tenant acknowledges that prior to and during the Lease Term, Landlord (and/or any common area association) will be completing construction and/or demolition work pertaining to various portions of the Building, the Other Building, the Premises, and/or the Project, including without limitation, landscaping and tenant improvements for premises for other tenants and, at Landlord’s sole election, such other buildings, improvements, landscaping and other facilities within or as part of the Project as Landlord (and/or such common area association) shall from time to time desire (collectively, the “Construction”). In connection with such Construction, Landlord may, among other things, erect scaffolding or other necessary structures in the Building and/or the Other Building, limit or eliminate access to portions of the Project, including portions of the common areas, or perform work in the Building, the Other Building and/or the Project, which work may create noise, dust or leave debris in the Building, the Other Building and/or the Project. Notwithstanding the foregoing, Landlord’s Construction shall be performed in such a manner as to not unreasonably interfere with Tenant’s access to or use of the Premises for Tenant’s business purposes, or materially decrease Tenant’s rights or increase Tenant’s obligations under this Lease. Tenant hereby agrees that such Construction and Landlord’s actions in connection with such Construction shall in no way constitute a constructive eviction of Tenant nor entitle Tenant to any abatement of Rent so long as such Construction does not unreasonably interfere with Tenant’s access to or use of the Premises for Tenant’s business purposes. Landlord shall have no responsibility or for any reason be liable to Tenant for any direct or indirect injury to or interference with Tenant’s business arising from such Construction, nor shall Tenant be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises or of Tenant’s personal property or improvements resulting from such Construction or Landlord’s actions in connection with such Construction, or for any inconvenience or annoyance occasioned by such Construction or Landlord’s actions in connection with such Construction. Landlord reserves full control over the Project to the extent not inconsistent with Tenant’s enjoyment the same as provided in this Lease. This reservation includes Landlord’s right to subdivide the Project and convert portions of the Project to condominium units, change the size of the Project by selling all or a portion of the Project or adding real property and any improvements thereon to the Project; grant easements and licenses to third parties and maintain or establish ownership of the Buildings separate from the fee title to the Project.
24.31 Intentionally Omitted.
24.32 Net Lease. This Lease shall be deemed and construed to be an “absolute net lease” and, except as herein expressly provided, Landlord shall receive all payments required to be made by Tenant free from all charges, assessments, impositions, expenses and deductions of any and every kind or nature whatsoever. Landlord shall not be required to furnish any services or facilities or to make any repairs, replacements or alterations of any kind in or on the Premises except as specifically provided herein.
24.33 Water Sensors. Tenant shall, at Tenant’s sole cost and expense, be responsible for promptly installing web-enabled wireless water leak sensor devices designed to alert the Tenant on a twenty-four (24) hour seven (7) day per week basis if a water leak is occurring in the floors of Building III that abut other leasable premises or Common Areas (which water sensor device(s) located in such floors in the Premises shall be referred to herein as “Water Sensors”). The Water Sensors shall be installed in any areas in such floors in the Premises where water is utilized (such as sinks, pipes, faucets, water heaters, coffee machines, ice machines, water dispensers and water fountains) (the “Sensor Areas”). With respect to the installation of any such Water Sensors, Tenant shall obtain Landlord’s prior written consent, use an experienced and qualified contractor reasonably approved by Landlord, and comply with all of the other provisions of Article 8 of this Lease. Tenant shall, at Tenant’s sole cost and expense, pursuant to Article 7 of this Lease keep any Water Sensors located in the Premises (whether installed by Tenant or someone else) in good working order, repair and condition at all times during the Lease Term and comply with all of the other provisions of Article 7 of this Lease. Notwithstanding any provision to the contrary contained herein, Landlord has neither an obligation to monitor, repair or otherwise maintain the Water Sensors, nor an obligation to respond to any alerts it may receive from the Water Sensors or which may be generated from the Water Sensors. Upon the expiration of the Lease Term, or immediately following any earlier termination of this Lease, Landlord reserves the right to require Tenant, at Tenant’s sole cost and expense, to remove all Water Sensors installed by Tenant, and repair any damage caused by such removal; provided, however, if the Landlord does not require the Tenant to remove the Water Sensors as contemplated by the foregoing, then Tenant shall leave the Water Sensors in place together with all necessary user information such that the same may be used by a future occupant of the Premises (e.g., the Water Sensors shall be unblocked and ready for use by a third-party). If Tenant is required to remove the Water Sensors pursuant to the foregoing and Tenant fails to complete such removal and/or fails to repair any damage caused by the removal of any Water Sensors, Landlord may do so and may charge the cost thereof to Tenant.
24.34 Earthquake Safety Information. Landlord hereby advises Tenant that information regarding earthquake safety may be obtained from the following publications: (i) information obtained from the California Division of Mines and Geology in its 1997 report “Guidelines for Evaluating and Mitigating Seismic Hazards in California” (which can be downloaded from the Division’s home page at www.consrv.ca.gov); (ii) “The Commercial Property Owner’s Guide to Earthquake Safety,” produced by the Seismic Safety Commission (SSC) and available at 1755 Creekside Oaks Drive, Suite 100, Sacramento, California 95883 or at 916-263-5506; and (iii) “Peace of Mind in Earthquake Country” (Peter Yanev, 1991, Chronicle Books).
24.35 Roof Rights. In accordance with, and subject to, this Section 24.35 (including Tenant’s obtaining all requisite permits and compliance with Landlord’s reasonable construction rules and conditions as well as Landlord’s reasonable approval of the contractors, vendors and materialmen in connection with the same (with Landlord having the right to require Tenant to utilize Landlord’s roofing contractor)), Tenant shall have the non-exclusive right, at no additional fee, to install, operate and maintain, at Tenant’s sole cost and expense, rooftop chillers, mechanical and electrical equipment and back-up generators relating to the conduct of business within the Premises, telecommunications antennas, microwave dishes and other communications equipment, including a reasonable sized dish on the roof of the Building (and reasonable equipment and cabling related thereto), servicing the business conducted by Tenant from within the Premises (all such equipment is defined collectively as the “Rooftop Equipment”) upon Tenant’s pro rata share of the available space on the roof of each Building as shown on Exhibit I. Landlord makes no representations or warranties whatsoever with respect to the condition of the roof of the Building (except as expressly set forth in this Lease), or the fitness or suitability of the roof of the Building for the installation, maintenance and operation of the Rooftop Equipment, including, without limitation, with respect to the quality and clarity of any receptions and transmissions to or from the Rooftop Equipment and the presence of any interference with such signals whether emanating from the Building or otherwise. The location, physical appearance, the size, the design and the weight of the Rooftop Equipment shall be subject to Landlord’s reasonable approval. Tenant shall maintain such Rooftop Equipment, at Tenant’s sole cost and expense. If the Rooftop Equipment constitutes a Specialty Alteration, Tenant shall remove such Rooftop Equipment upon the expiration or earlier termination of this Lease, or upon the termination of Tenant’s rights under this Section 24.35, and shall repair any damage caused by such removal. Except together with a Transfer of the Premises or the Lease permitted under Article 14 above. Tenant shall not be entitled to license its Rooftop Equipment to any unrelated third party, nor shall Tenant be permitted to receive any revenues, fees or any other consideration for the use of such Rooftop Equipment by an unrelated third party.
24.36 Approvals. Whenever this Lease requires an approval, consent, determination or judgment by either Landlord or Tenant, unless another standard is expressly set forth in this Lease, such approval, consent, determination or judgment and any conditions imposed thereby shall be reasonable and shall not be unreasonably withheld or delayed.
24.37 Storage Areas. Tenant shall have dedicated general storage in the Parking Facility and the podium portion of the Building in the locations depicted on Exhibit G (collectively, the “Storage Areas”). The Storage Areas shall be considered part of the Premises under this Lease except that no Rent shall be payable by Tenant for such Storage Areas. Tenant shall take such Storage Areas in their then as-is condition and Landlord shall not be required to provide any improvements to the same.
[Remainder of Page Intentionally Left Blank; Signatures on Next Page]
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed the day and date first above written.
| “Landlord”: | ||
| BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company |
||
| By: | /s/ W. Neil Fox, III | |
| Name: W. Neil Fox, III | ||
| Its: Chief Executive Officer | ||
| “TENANT”: | ||
| FREENOME HOLDINGS, INC. | ||
| a Delaware corporation | ||
| By: | /s/ Mike Nolan | |
| Name: |
Mike Nolan |
|
| Its: | Chief Executive Officer | |
*** If Tenant is a CORPORATION, the authorized officers must sign on behalf of the corporation and indicate the capacity in which they are signing. The Lease must be executed by the president or vice president and the secretary or assistant secretary, unless the bylaws or a resolution of the board of directors shall otherwise provide, in which event, the bylaws or a certified copy of the resolution, as the case may be, must be attached to this Lease.
CONFIRMATION OF LEASE TERMS
(Building III - 3000 Marina)
This CONFIRMATION OF LEASE TERMS (“Confirmation No. 1”) is made and entered into effective as of February 24, 2023, by and between BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company (“Landlord”) and FREENOME HOLDINGS, INC., a Delaware corporation (“Tenant”).
R E C I T A L S :
A. Landlord and Tenant entered into that certain Lease dated as of September 23, 2021 (the “Lease”) pursuant to which Landlord leased to Tenant and Tenant leased from Landlord certain “Premises”, as described in the Lease, in those certain buildings located at 3000 and 3300 Marina Boulevard, Brisbane, California 94005, and known as Building III and Building I, respectively.
B. Except as otherwise set forth herein, all capitalized terms used in this Confirmation No. 1 shall have the same meaning as such terms have in the Lease.
C. Landlord and Tenant desire to amend the Lease to confirm the satisfaction of the Delivery Condition for Building III and the occurrence of the Building III Delivery Date, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Confirmation of Dates. The parties hereby confirm that (a) the Building III Premises is in the Delivery Condition as set forth in Section 1.2 of the Tenant Work Letter, and (b) the Building III Delivery Date occurred on February 3, 2023.
2. No Further Modification. Except as set forth in this Confirmation No. 1, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
[Remainder of Page Intentionally Left Blank; Signatures Follow]
IN WITNESS WHEREOF, this Confirmation No. 1 has been executed as of the day and year first above written.
| “Landlord”: | ||
| BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company |
||
| By: | /s/ W. Neil Fox, III | |
| Name: W. Neil Fox, III | ||
| Its: Chief Executive Officer | ||
| “TENANT”: | ||
| FREENOME HOLDINGS, INC. | ||
| a Delaware corporation | ||
| By: | /s/ Mike Nolan | |
| Name: |
Mike Nolan |
|
| Its: | Chief Executive Officer | |
[Signature Page to Confirmation No.1]
CONFIRMATION OF LEASE TERMS
(Building I — 3300 Marina)
This CONFIRMATION OF LEASE TERMS (“Confirmation No. 2”) is made and entered into effective as of March 8, 2023, by and between BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company (“Landlord”) and FREENOME HOLDINGS, INC., a Delaware corporation (“Tenant”).
R E C I T A L S :
A. Landlord and Tenant entered into that certain Lease dated as of September 23, 2021 (the “Lease”) pursuant to which Landlord leased to Tenant and Tenant leased from Landlord certain “Premises”, as described in the Lease, in those certain buildings located at 3000 and 3300 Marina Boulevard, Brisbane, California 94005, and known as Building III and Building I, respectively.
B. Except as otherwise set forth herein, all capitalized terms used in this Confirmation No. 2 shall have the same meaning as such terms have in the Lease.
C. Landlord and Tenant desire to amend the Lease to confirm the satisfaction of the Delivery Condition for Building I and the occurrence of the Building I Delivery Date, as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Confirmation of Dates. The parties hereby confirm that (a) the Building I Premises is in the Delivery Condition as set forth in Section 1.2 of the Tenant Work Letter, and (b) the Building I Delivery Date occurred on March 3, 2023.
2. No Further Modification. Except as set forth in this Confirmation No. 2, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect.
[Remainder of Page Intentionally Left Blank; Signatures Follow]
IN WITNESS WHEREOF, this Confirmation No. 2 has been executed as of the day and year first above written.
| “Landlord”: | ||
| BP3-SF5 3000-3500 MARINA LLC, a Delaware limited liability company |
||
| By: | /s/ W. Neil Fox, III | |
| Name: W. Neil Fox, III | ||
| Its: Chief Executive Officer | ||
| “TENANT”: | ||
| FREENOME HOLDINGS, INC. | ||
| a Delaware corporation | ||
| By: | /s/ Mike Nolan | |
| Name: |
Mike Nolan |
|
| Its: | Chief Executive Officer | |
[Signature Page to Confirmation No.2]
-2-
Exhibit 10.19
LEASE
BETWEEN
SCG SWIFT AVENUE INDUSTRIAL PARK, LLC,
a Delaware limited liability company,
AS LANDLORD
AND
FREENOME HOLDINGS, INC.,
a Delaware corporation,
AS TENANT
DATED MARCH 25, 2022
SWIFT AVENUE INDUSTRIAL PARK
345 SWIFT AVENUE, SOUTH SAN FRANCISCO, CALIFORNIA
BASIC LEASE INFORMATION
| Lease Date: | March 25, 2022 |
| Landlord: | SCG SWIFT AVENUE INDUSTRIAL PARK, LLC, a Delaware limited liability company |
| Tenant: | FREENOME HOLDINGS, INC., a Delaware corporation |
| Estimated Delivery | July 1, 2022 |
Date:
| Term: | One hundred twenty-two (122) full calendar months, plus any partial month from the Commencement Date to the end of the month in which the Commencement Date falls, starting on the Commencement Date and ending at 5:00 p.m. local time on the last day of the 122nd full calendar month following the Commencement Date, subject to adjustment and earlier termination as provided in the Lease (the “Expiration Date”). |
| Commencement Date: | The later of (i) August 1, 2022, and (ii) thirty (30) days from the date Landlord tenders possession of the Premises to Tenant. |
| Basic Rent: | Basic Rent shall commence on the Commencement Date and shall be the following amounts for the following periods of time: |
| Lease Months | Annual
Basic Rent Rate Per Rentable Square Foot in the Premises |
Monthly Basic Rent | |
| 1 - 12 | $21.60 | $35,820.00 | |
| 13 – 24 | $22.36 | $37,073.70 | |
| 25 – 36 | $23.14 | $38,371.28 | |
| 37 – 48 | $23.95 | $39,714.27 | |
| 49 – 60 | $24.79 | $41,104.27 | |
| 61 – 72 | $25.65 | $42,542.92 | |
| 73 – 84 | $26.55 | $44,031.93 | |
| 85 – 96 | $27.48 | $45,573.04 | |
| 97 – 108 | $28.44 | $47,168.10 | |
| 109 – 120 | $29.44 | $48,818.98 | |
| 121 – 122 | $30.47 | $50,527.65 |
| *Notwithstanding anything in this Lease to the contrary, so long as Tenant is not in default under this Lease beyond any applicable notice and cure periods, Tenant shall be entitled to an abatement of Basic Rent with respect to the Premises, as originally described in this Lease, in the amount of $35,820.00 for the first two (2) full calendar months of the initial Term (the “Abated Basic Rent”. If Tenant defaults under this Lease at any time during the Term (as the same may be extended) and fails to cure such default within any applicable cure period under this Lease, then all unamortized Abated Basic Rent (i.e. based upon the amortization of the Abated Basic Rent in equal monthly amounts, without interest, during the period commencing on the Commencement Date and ending on the original Expiration Date) shall immediately become due and payable. Only Basic Rent shall be abated pursuant to this Section, as more particularly described herein, and Tenant’s Proportionate Share of Operating Costs and Taxes and all other Rent and other costs and charges specified in this Lease shall remain as due and payable pursuant to the provisions of this Lease. |
| As used herein, the term “Lease Month” means each calendar month during the Term (and if the Commencement Date does not occur on the first day of a calendar month, the period from the Commencement Date to the first day of the next calendar month shall be included in the first Lease Month for purposes of determining the duration of the Term and the monthly Basic Rent rate applicable for such partial month). |
| Security Deposit: | $202,110.60. |
| Construction | $59,700.00 |
Allowance:
| Additional Rent: |
Tenant’s Proportionate Share of Operating Costs and Taxes. Rent: Basic Rent, Additional Rent, and all other sums that Tenant may owe to Landlord or otherwise be
required to pay under the Lease.
|
| Rent: |
Basic Rent, Additional Rent, and all other sums that Tenant may owe to Landlord or otherwise be required to pay under the Lease.
|
|
Permitted Use:
|
Warehousing, storage, including, but not limited to cold storage, and manufacturing of biomedical products, and related general office use, in compliance with Section 9 of the Lease. |
| Parking Density: | One parking pass per 1,000 rentable square feet of the Premises. |
Tenant’s
Organizational
| Identification Number: | C3905073 as issued by the Secretary of State of California and 6009505 as issued by the Secretary of State of Delaware. |
Tenant’s Proportionate
| Share: | With respect to the Building: 30.48%, which is the percentage obtained by dividing (a) the number of rentable square feet in the Premises as stated above by (b) the 65,281 rentable square feet in the Building. |
| Landlord and Tenant stipulate that the number of rentable square feet in the Premises, Building, and Project set forth above is conclusive and shall be binding upon them, except as provided in this Lease. |
| Initial Liability | $1,000,000 per occurrence and $2,000,000 in the annual aggregate in primary coverage, with an additional |
| Insurance Amount: | $5,000,000 in umbrella coverage. |
| Broker(s): | Jones Lang LaSalle representing Tenant and Landlord. |
| Guarantor: | As of the date of this Lease, there is no Guarantor. |
| Tenant’s Address: | Prior to Commencement Date: |
|
Freenome Holdings, Inc. 279 E. Grand Avenue, 5th Floor South San Francisco, CA 94080 contracts@freenome.com |
|
| From and after Commencement Date: | |
|
The Premises contracts@freenome.com |
|
| With a copy to: | |
|
LMA Law, LLP One Almaden Boulevard, Suite 700 San Jose, CA 95113 Attention: Michael Schachter, Esq. Email: mgs@lmallp.com |
| NAICS Code: | Tenant hereby represents and warrants to Landlord that Tenant’s North American Industry Classification System (“NAICS”) code is: 621511 |
| Landlord’s Address: | For all Notices: |
|
SCG Swift Avenue Industrial Park, LLC c/o Stockbridge Capital Group Four Embarcadero Center, Suite 3300 San Francisco, CA 94111 Attn: Asset Manager (Swift Industrial Park) |
|
| With a copy to: | |
|
SCG Swift Avenue Industrial Park, LLC c/o CBRE 1111 Broadway, Suite 1850, Oakland, CA 94607 Attn: Property Manager |
| For Payments by Regular Mail: | For Payments by Overnight Mail: |
| SCG Swift Avenue Industrial Park LLC | Bank of America Lockbox Services |
| P.O. Box 740786 | Lockbox 740786 |
| Los Angeles, CA 90074-0786 | 2706 Media Center Drive | |
| Los Angeles, CA 90065-1733 |
The foregoing Basic Lease Information is incorporated into and made a part of this Lease. The Lease includes Exhibits A through G, all of which are incorporated herein and made a part of this Lease. Each reference in this Lease to any of the Basic Lease Information shall mean the respective information above and shall be construed to incorporate all of the terms provided under the particular Lease paragraph pertaining to such information. In the event of any conflict between the Basic Lease Information and the Lease, the latter shall control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exhibits:
| Exhibit A | Outline of Premises |
| Exhibit B | Building Rules and Regulations |
| Exhibit C | Work Letter |
| Exhibit D | Form of Confirmation of Commencement Date Letter |
| Exhibit E | Form of Tenant Estoppel Certificate |
| Exhibit F | Parking |
| Exhibit G | Intentionally Omitted |
| Exhibit H | Hazardous Materials Questionnaire |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
| LIST OF DEFINED TERMS | |
| Page No. | |
| Abated Basic Rent | ii |
| Access Improvements | 11 |
| Additional Rent | ii |
| Affiliate | 1 |
| Basic Lease Information | 1 |
| Basic Rent | i |
| Broker(s) | iii |
| Building | i |
| Building’s Structure | 1 |
| Building’s Systems | 1 |
| CASp | 10 |
| Casualty | 18 |
| Code | 32 |
| Collateral | 23 |
| Commencement Date | i |
| Common Area Amenities | 32 |
| Construction Allowance | ii, C-2 |
| Damage Notice | 18 |
| Default Rate | 4 |
| Disabilities Acts | 10 |
| Disclosure Date | 31 |
| Environmental Assessment | 31 |
| Estimated Delivery Date | i |
| Event of Default | 19 |
| Excess Amount | C-1 |
| Expiration Date | i |
| Extension Option | 34 |
| Extension Term | 34 |
| Financial Condition Adverse Change | 34 |
| Financial Statements | 34 |
| Force Majeure Event | 26 |
| GAAP | 14 |
| Generator | 35 |
| Generator Area | 35 |
| Generator Fee | 36 |
| Guarantor | iii |
| Handle | 31 |
| Hazardous Materials | 30, H-1 |
| Hazardous Substances | H-1 |
| Hazardous Wastes | H-1 |
| HVAC | 5 |
| including | 1 |
| Initial Liability Insurance Amount | iii |
| Inspection | 10 |
| Landlord | i |
| Landlord’s Address | iii |
| Landlord’s Mortgagee | 16 |
| Law | 1 |
| Laws | 1 |
| Lease | 1, E-1 |
| Lease Date | i |
| Lease Month | ii |
| LEED Commercial Interiors Credits | C-2 |
| Loss | 16 |
| Mortgage | 16 |
| NAICS | iii |
| NAICS Code | iii |
| OFAC | 32 |
| Operating Costs | 2 |
| Parking Area | F-1 |
| Parking Density | ii |
| Permitted Transfer | 13 |
| Permitted Transferee | 13 |
| Permitted Use | ii |
| Premises | i |
| Prevailing Market | 34 |
| Primary Lease | 16 |
| Project | i |
| Punchlist Items | D-1 |
| Reconciliation Statement | 4 |
| Referee Sections | 28 |
| Regulations | 32 |
| Release | 31 |
| Released Parties | 32 |
| Rent | ii |
| Repair Period | 18 |
| Report | 10 |
| Security Deposit | ii |
| Space Plans | C-1 |
| Substitute Tenant | 22 |
| Taking | 17 |
| Tangible Net Worth | 14 |
| Taxes | 3 |
| Telecommunications Services | 30 |
| Tenant | i |
| Tenant Party | 1 |
| Tenant’s Address | iii |
| Tenant’s Off-Premises Equipment | 1 |
| Tenant’s Organizational Identification Number | ii |
| Tenant’s Proportionate Share | ii |
| Term | i |
| Total Construction Costs | C-1 |
| Toxic Materials | H-1 |
| Toxic Substances | H-1 |
| Toxic Wastes | H-1 |
| Transfer | 11 |
| UCC | 23 |
| Visible Premises | 8 |
| Work | C-1 |
| Working Drawings | C-1 |
LEASE
This Lease Agreement (this “Lease”) is entered into as of the Lease Date between Landlord and Tenant (as each such term is defined in the Basic Lease Information).
1. Definitions and Basic Provisions. The definitions and basic provisions set forth in the Basic Lease Information (the “Basic Lease Information”) are incorporated herein by reference for all purposes. Additionally, the following terms shall have the following meanings when used in this Lease: “Affiliate” means any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the party in question; “Building’s Structure” means the Building’s roof and roof membrane, elevator shafts, footings, foundations, structural portions of load-bearing walls, structural floors and subfloors, structural columns and beams, and curtain walls; “Building’s Systems” means the Building’s HVAC, life-safety, plumbing, electrical, mechanical and elevator systems; “including” means including, without limitation; “Laws” means all federal, state and local laws, ordinances, building codes and standards, rules and regulations, all court orders, governmental directives, and governmental orders and all interpretations of the foregoing, and all restrictive covenants affecting the Project, and “Law” means any of the foregoing; “Tenant’s Off-Premises Equipment” means any of Tenant’s equipment or other property that may be located on or about the Project (other than inside the Premises); and “Tenant Party” means any of the following persons: Tenant; any assignees claiming by, through or under Tenant; any subtenants claiming by, through or under Tenant; and any of their respective agents, contractors, officers, employees, licensees, guests and invitees.
2. Lease Grant. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises. If the Premises include one or more floors in their entirety, all corridors and restroom facilities located on such full floor(s) shall be considered part of the Premises. Landlord and Tenant acknowledge that the rentable square footage of the Premises is correct; provided, however, that Landlord may from time to time remeasure the Premises and/or the Building in accordance with generally accepted remeasurement standards selected by Landlord and adjust Tenant’s Proportionate Share based on such remeasurement; provided further, however, that any such remeasurement based on a change in measurement standard only shall not affect the amount of Basic Rent payable for the Premises (as defined herein), Tenant’s Share or any allowance applicable to the then-current Term and based on the Premises.
3. Tender of Possession. Landlord and Tenant presently anticipate that possession of the Premises will be tendered to Tenant on or about the Estimated Delivery Date (as set forth in the Basic Lease Information). If Landlord is unable to tender possession of the Premises in such condition to Tenant by the Estimated Delivery Date, then (a) the validity of this Lease shall not be affected or impaired thereby, (b) Landlord shall not be in default hereunder or be liable for damages therefor, and (c) Tenant shall accept possession of the Premises when Landlord tenders possession thereof to Tenant. By occupying the Premises, Tenant shall be deemed to have accepted the Premises in their as-is condition and configuration as of the date of such occupancy, subject to the performance of punch-list items that remain to be performed by Landlord, if any. However, notwithstanding the foregoing, Landlord agrees that the roof and the base Building electrical, HVAC (defined in Section 7.1 below) and plumbing systems located in the Premises shall be in good working order as of the date Landlord delivers possession of the Premises to Tenant. Except to the extent caused by the acts or omissions of Tenant or any Tenant Party or by any alterations or improvements performed by or on behalf of Tenant, if such systems are not in good working order as of the date possession of the Premises is delivered to Tenant and Tenant provides Landlord with notice of the same within thirty (30) days following the date Landlord delivers possession of the Premises to Tenant, Landlord shall be responsible for repairing or restoring the same. Prior to occupying the Premises, Tenant shall execute and deliver to Landlord a letter substantially in the form of Exhibit D hereto confirming (1) the Commencement Date and the Expiration Date of the initial Term, (2) that Tenant has accepted the Premises, and (3) that Landlord has performed all of its obligations with respect to the Premises (except for punch-list items specified in such letter and as stated in this Lease); however, the failure of the parties to execute such letter shall not defer the Commencement Date or otherwise invalidate this Lease. Should Tenant fail to do so within thirty (30) days after Landlord’s request, the information set forth in such letter provided by Landlord shall be conclusively presumed to be agreed and correct. Entry into the Premises by any Tenant Party prior to the Commencement Date shall be subject to all of the provisions of this Lease excepting only those requiring the payment of Basic Rent and Additional Rent unless otherwise expressly set forth in this Lease. Landlord and Tenant acknowledge that physical changes may occur from time to time in the Building or Project, and that the number of buildings and additional facilities which constitute the Project may change from time to time, which may result in an adjustment in Tenant’s Proportionate Share, as defined in the Basic Lease Information.
4.1 Payment. Tenant shall timely pay to Landlord Rent, without notice, demand, deduction or set off (except as otherwise expressly provided herein), by good and sufficient check drawn on a national banking association, or, at either party’s election, by electronic or wire transfer, at Landlord’s address provided for in this Lease or such other address as may be specified in writing by Landlord, and shall be accompanied by all applicable state and local sales or use taxes; provided, that following any default by Tenant, Landlord shall be permitted to require alternative methods of payment, in Landlord’s sole discretion. The obligations of Tenant to pay Rent to Landlord and the obligations of Landlord under this Lease are independent obligations. Basic Rent, adjusted as herein provided, shall be payable monthly in advance. The first monthly installment of Basic Rent is due upon execution of this Lease by Tenant; thereafter, Basic Rent shall be payable on the first day of each calendar month. The monthly Basic Rent for any partial month at the beginning of the Term shall equal the product of 1/365 of the annual Basic Rent in effect during the partial month and the number of days in the partial month, and such Basic Rent payment is due upon execution of this Lease by Tenant; however, if the Commencement Date is not a fixed date that is ascertainable as of the Lease Date, then such Basic Rent payment for any fractional calendar month at the beginning of the Term shall be due by Tenant on the Commencement Date. Payments of Basic Rent for any fractional calendar month at the end of the Term shall be similarly prorated. Tenant shall pay to Landlord monthly installments of Additional Rent in advance on the first day of each calendar month and otherwise on the same terms and conditions described above with respect to Basic Rent. All sums due and payable by Tenant under this Lease shall be deemed to be rent hereunder and unless a shorter time period is specified in this Lease, all payments of miscellaneous Rent charges hereunder (that is, all Rent other than Basic Rent and Additional Rent) shall be due and payable within 30 days following Landlord’s delivery to Tenant of an invoice therefor.
4.2.1 Operating Costs. Tenant shall pay to Landlord Tenant’s Proportionate Share of Operating Costs. Landlord may make a good faith estimate of Operating Costs to be due by Tenant for any calendar year or part thereof during the Term. During each calendar year or partial calendar year of the Term, Tenant shall pay to Landlord, in advance concurrently with each monthly installment of Basic Rent, an amount equal to Tenant’s estimated Operating Costs for such calendar year or part thereof divided by the number of months therein. From time to time, Landlord may estimate and re-estimate the Operating Costs to be due by Tenant and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Operating Costs payable by Tenant shall be appropriately adjusted in accordance with the estimations so that, by the end of the calendar year in question, Tenant shall have paid all of the Operating Costs as estimated by Landlord. Any amounts paid based on such an estimate shall be subject to adjustment as herein provided when actual Operating Costs are available for each calendar year. Except with respect to the amortized amounts of any capital expenditures and tax payments in installments, and/or adjustments to account for any tax appeals as set forth in this Lease, in no event shall Landlord be entitled to a reimbursement from tenants for Operating Costs in excess of one hundred percent (100%) of the costs actually paid or incurred by Landlord in any applicable calendar year.
4.2.2 Operating Costs Defined. The term “Operating Costs” means all costs, expenses and disbursements of every kind and nature (subject to the limitations set forth below) that Landlord incurs in connection with the ownership, management, repair, replacement, preservation, operation, and maintenance of the Building and the Project and its supporting facilities and performing Landlord’s obligations under this Lease, in each case, determined in accordance with sound accounting principles consistently applied, including the following costs: (a) wages and salaries of all employees at or below the grade of senior building manager engaged in the operation, maintenance or security of the Building and the Project (together with Landlord’s reasonable allocation of expenses of off-site employees at or below the grade of senior building manager who perform a portion of their services in connection with the operation, maintenance or security of the Building and the Project including accounting personnel), including taxes, insurance and benefits relating thereto; (b) all supplies, materials and computer software licenses used in the operation, maintenance, repair, replacement, and security of the Building and the Project; (c) costs for improvements made to the Building and the Project and, to the extent capital in nature, shall be amortized using a commercially reasonable interest rate over the useful life as reasonably estimated by Landlord to recover the costs thereof; (d) cost of all services and utilities, other than the cost of any metered or submetered utilities paid separately by other tenants; (e) insurance expenses, including the cost of any deductibles; (f) repairs, replacements, and general maintenance of the Building and the Project, including, but not limited to, the roof and roof membrane, windows, elevators, restrooms, lobbies, mezzanines, balconies, mechanical rooms, building exteriors, alarm systems, pest extermination, landscaped areas, parking and service areas, driveways, sidewalks, loading areas, fire sprinkler systems, sanitary and storm sewer lines, utility services, heating/ventilation/air conditioning systems, electrical, mechanical or other systems, telephone equipment and wiring servicing, plumbing, lighting, and any other items or areas which affect the operation or appearance of the Building or Project or that are reasonably necessary for the health and safety of the occupants of the Building or Project, which determination shall be at Landlord’s discretion; (g) fair market rental and other costs with respect to the management office for the Building and the Project; (h) costs and expenses for the operation of the Project which are equitably allocated to the Building and the Project; (i) payment under or for any easement, license, permit, operating agreement, declaration, restrictive covenant or instrument relating to the Building or Project; and (j) legal expenses and the cost of audits by certified public accountants; provided, however, that legal expenses chargeable as Operating Costs shall not include the cost of negotiating leases, collecting rents, evicting tenants nor shall it include costs incurred in legal proceedings with or against any tenant or to enforce the provisions of any lease; and (k) service, maintenance and management contracts and fees (payable to Landlord, Landlord’s affiliate or a third-party management company; provided that any costs paid to Landlord or Landlord’s affiliate for management services shall exclude amounts paid in excess of the competitive rates for management services of comparable quality rendered by persons or entities of similar skill, competence and experience) for the operation, maintenance, management, repair, replacement, or security of the Building and the Project (including alarm service, window cleaning, janitorial, security, landscape maintenance and elevator maintenance); and (l) any reasonable costs incurred to make any alterations or improvements to the Building or Project necessary for any voluntary certification as “green” or sustainable, or other similar certifications, and any costs to obtain and maintain such certification. Any property management or other similar fees shall be calculated without regard to free rent or other such concessions. Landlord shall have the right to allocate costs among different uses of space in the Building and the Project if Landlord reasonably determines the costs for operating, maintaining and repairing such different spaces differ from other spaces within the Building and the Project.
Operating Costs shall not include costs for (1) capital improvements made to the Building and the Project, other than capital improvements described in Section Error! Reference source not found.; (2) repair, replacements and general maintenance paid by proceeds of insurance or by Tenant or other third parties; (3) interest, amortization or other payments on loans to Landlord; (4) depreciation; (5) leasing commissions; (6) legal expenses for services, other than those that benefit the Building and the Project tenants generally (e.g., tax disputes and negotiation of vendor contracts); (7) renovating or otherwise improving space for specific occupants of the Building and the Project or vacant leasable space in the Building and the Project, other than costs for repairs, maintenance and compliance with Laws provided or made available to the Building and the Project tenants generally; (8) Taxes; (9) federal income taxes imposed on or measured by the income of Landlord from the operation of the Building and the Project; (10) fines, costs or penalties incurred as a result and to the extent of a violation by Landlord of any applicable Laws; (11) ground lease rental; (12) all costs associated with the operation of the business of the entity which constitutes “Landlord” (as distinguished from the costs of operating, maintaining, repairing and managing the Project) including, but not limited to, Landlord’s or Landlord’s managing agent’s general corporate overhead and general administrative expenses; (13) costs incurred by Landlord in connection with the correction of latent defects in the original construction of the Building; (14) any cost or expense related to removal, cleaning, abatement or remediation of Hazardous Materials existing as of the date of this Lease in or about the Building, common areas or Project except to the extent such removal, cleaning, abatement or remediation is related to the general repair and maintenance of the Building; (15) advertising and promotional expenditures; (16) reserves not spent by Landlord by the end of the calendar year for which Operating Costs are paid; (17) wages, salaries, benefits or other compensation paid to any executives, shareholders, officers, directors or partners of Landlord or any off-site employees and employees at the Building above the level of Building manager; (18) all bad debt loss, rent loss, or reserves for bad debt or rent loss; (19) Landlord’s general overhead and administrative expenses not related to the Building; (20) all costs of purchasing or leasing major sculptures, paintings or other major works or objects of art (as opposed to decorations purchased or leased by Landlord for display in the common areas of the Building); (21) the cost of operating any commercial concession which is operated by Landlord at the Building; (22) any fines, penalties or interest resulting from the gross negligence or willful misconduct of Landlord; (23) costs in connection with leasing space in the Building, including brokerage commissions, brochures and marketing supplies, legal fees in negotiating and preparing lease documents; (24) any “tenant allowances”, “tenant concessions” and other costs or expenses incurred in fixturing, furnishing, renovating or otherwise improving, decorating or redecorating space for tenants or other occupants of the Building, or vacant leaseable space in the Building, except in connection with general maintenance and repairs provided to the tenants of the Building in general; (25) the cost or expense of any services or benefits provided generally to other tenants in the Building and not provided or available to Tenant; and (26) Landlord’s charitable and political contributions; (27) the cost or expense of any services or benefits provided generally to other tenants in the Building and not provided or available to Tenant; and (28) costs incurred by Landlord for the repair of damage to the Building, to the extent that Landlord is reimbursed for such costs by insurance proceeds, contractor warranties, guarantees, judgments or other third party sources.
If Landlord incurs Operating Costs for the Project together with another property, Landlord, in its reasonable discretion, shall equitably allocate such shared amounts between the Project and such other property.
4.2.3 Taxes; Taxes Defined. Tenant shall also pay Tenant’s Proportionate Share of Taxes. Tenant shall pay Tenant’s Proportionate Share of Taxes in the same manner as provided above for Tenant’s Proportionate Share of Operating Costs. “Taxes” means taxes, assessments, and governmental charges or fees whether federal, state, county or municipal, and whether they be by taxing districts or authorities presently taxing or by others, subsequently created or otherwise, and any other taxes and assessments (including non-governmental assessments and charges [including assessments and charges from any applicable property owner’s association] under any restrictive covenant, declaration of covenants, restrictions and easements or other private agreement that are not treated as part of Operating Costs) now or hereafter attributable to the Building and the Project (or its operation), excluding, however, penalties and interest thereon and federal and state taxes on income, excess profits taxes, franchise taxes, gift taxes, capital stock taxes, inheritance and succession taxes, documentary transfer taxes, estate taxes, federal and state income taxes, and other taxes to the extent applicable to Landlord’s general or net income (as opposed to a tax on rents, receipts or income attributable to operations at the Project), and fines, penalties or interest resulting from late payment of taxes. However, if the present method of taxation changes so that in lieu of or in addition to the whole or any part of any Taxes, there is levied on Landlord a capital tax directly on the rents or revenues received therefrom or a franchise tax, margin tax, assessment, or charge based, in whole or in part, upon such rents or revenues for the Building and the Project, then all such taxes, assessments, or charges, or the part thereof so based, shall be deemed to be included within the term “Taxes” for purposes hereof. The costs of consultants retained in an effort to lower taxes and all costs incurred in disputing any taxes or in seeking to lower the tax valuation of the Building and the Project shall be included in Operating Costs. For property tax purposes, Tenant waives all rights to protest or appeal the appraised value of the Premises, as well as the Building and the Project, and all rights to receive notices of reappraisement. From time to time during any calendar year, Landlord may estimate or re-estimate the Taxes to be due by Tenant for that calendar year and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Taxes payable by Tenant shall be appropriately adjusted in accordance with the estimations.
4.2.4 Reconciliation Statement. By April 30 of each calendar year, or as soon thereafter as practicable, Landlord shall furnish to Tenant a statement of actual Operating Costs for the previous year, in each case adjusted as provided in Section 4.2.5, and of the Taxes for the previous year (the “Reconciliation Statement”). If Tenant’s estimated payments of Operating Costs or Taxes under this Section 4.2 for the year covered by the Reconciliation Statement exceed Tenant’s Proportionate Share of such items as indicated in the Reconciliation Statement, then Landlord shall credit or reimburse Tenant for such excess within 30 days; likewise, if Tenant’s estimated payments of Operating Costs or Taxes under this Section 4.2 for such year are less than Tenant’s Proportionate Share of such items as indicated in the Reconciliation Statement, then Tenant shall pay Landlord such deficiency within 30 days of invoice from Landlord. Basic Rent shall be paid to Landlord absolutely net of all Operating Costs and Taxes, except as specifically provided to the contrary in this Lease, and the provisions for payment of Operating Costs and Taxes are intended to pass on to Tenant and reimburse Landlord for all costs and expenses of the nature described in this Section 4.2.
4.2.5 Gross Up. With respect to any calendar year or partial calendar year in which the Building or the Project is not occupied to the extent of at least 95% of the rentable area thereof, or Landlord is not supplying comparable services to at least 95% of the rentable area thereof, the Operating Costs for such period which vary with the occupancy of the Building or the Project, as applicable, or level of service shall, for the purposes hereof, be increased to the amount which would have been incurred had the Building or the Project, as applicable, been occupied to the extent of at least 95% of the rentable area thereof and Landlord had been supplying comparable services to at least 95% of the rentable area thereof.
4.2.6 Audit. Tenant may, within thirty (30) days after receiving Landlord’s Reconciliation Statement, give Landlord written notice (“Review Notice”) that Tenant intends to review Landlord’s records of the Operating Costs or Taxes for that calendar year. Within a reasonable time after receipt of the Review Notice, Landlord shall make all pertinent records available for inspection that are reasonably necessary for Tenant to conduct its review. If any records are maintained at a location other than the office of the Building, Tenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. If Tenant retains an agent to review Landlord’s records, the agent must be with a licensed, independent CPA firm to perform such review it shall be one of national standing which is reasonably acceptable to Landlord, is not compensated on a contingency basis and is also subject to such confidentiality agreement. Tenant shall be solely responsible for all costs, expenses and fees incurred for the audit. Within sixty (60) days after the records are made available to Tenant, Tenant shall have the right to give Landlord written notice (an “Objection Notice”) stating in reasonable detail any objection to Landlord’s Reconciliation Statement for that year. If Tenant fails to provide Landlord with a Review Notice within the sixty (60) day period described above or fails to provide Landlord with an Objection Notice within the thirty (30) day period described above, Tenant shall be deemed to have approved Landlord’s Reconciliation Statement and shall be barred from raising any claims regarding the Operating Costs or Taxes for that year. If Tenant provides Landlord with a timely Objection Notice, Landlord and Tenant shall work together in good faith to resolve any issues raised in Tenant’s Objection Notice. If Landlord and Tenant determine that Operating Costs or Taxes for the calendar year are less than reported, Landlord shall provide Tenant with a credit against the next installment of Rent in the amount of the overpayment by Tenant. Likewise, if Landlord and Tenant determine that Operating Costs or Taxes for the calendar year are greater than reported, Tenant shall pay Landlord the amount of any underpayment within thirty (30) days. The records obtained by Tenant shall be treated as confidential. In no event shall Tenant be permitted to examine Landlord’s records or to dispute any statement of Operating Costs or Taxes unless Tenant has paid and continues to pay all Rent when due.
5. Delinquent Payment; Handling Charges. All past due payments required of Tenant hereunder shall bear interest from the date due until paid at the lesser of eighteen percent per annum or the maximum lawful rate of interest (such lesser amount is referred to herein as the “Default Rate”); additionally, Landlord, in addition to all other rights and remedies available to it, may charge Tenant for each month or portion thereof that the delinquency remains outstanding a late fee equal to the greater of (a) five percent of the delinquent payment, and (b) $250, to reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenant’s delinquency. In no event, however, shall the charges permitted under this Section 5 or elsewhere in this Lease, to the extent they are considered to be interest under applicable Law, exceed the maximum lawful commercial rate of interest. Notwithstanding the foregoing, the late fee referenced above shall not be charged with respect to the first occurrence (but not any subsequent occurrence) during any 12-calendar month period that Tenant fails to make any payment of Additional Rent when due, until five days after Landlord delivers written notice of such delinquency to Tenant. Landlord may, in its sole discretion, allocate any rent or monies Tenant pays to Landlord to any sums then due and payable hereunder.
6. Security Deposit. Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord the Security Deposit, which shall be held by Landlord to secure Tenant’s performance of its obligations under this Lease. The Security Deposit is not an advance payment of Rent or a measure or limit of Landlord’s damages upon a default or breach of this Lease by Tenant. Landlord may, from time to time following a default or breach of this Lease by Tenant and without prejudice to any other remedy, use all or a part of the Security Deposit to perform any obligation Tenant fails to perform hereunder. Following any such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. Provided that Tenant has performed all of its obligations hereunder, Landlord shall, within 60 days after the expiration of the Term, the cure of any then-outstanding breach or default of this Lease, and Tenant’s surrender of the Premises in compliance with the provisions of this Lease, return to Tenant the portion of the Security Deposit which was not applied to satisfy Tenant’s obligations. Notwithstanding the preceding sentence and to the extent permitted by applicable Law, Landlord may retain the Security Deposit until such time after the expiration of the Term that Landlord is able to reconcile and confirm all amounts payable by Tenant under this Lease have been paid in full by Tenant (e.g., Landlord cannot reconcile and confirm Tenant has paid Tenant’s Proportionate Share of Taxes for the calendar year in which the Term expires if Landlord has not received a Tax bill from all applicable taxing authorities at the time of such expiration). The Security Deposit may be commingled with other funds, and no interest shall be paid thereon. If Landlord transfers its interest in the Premises then the transferee shall assume Landlord’s obligations under this Lease, then Landlord may assign the Security Deposit to the transferee and Landlord thereafter shall have no further liability for the return of the Security Deposit. The rights and obligations of Landlord and Tenant under this Section 6 are subject to any other requirements and conditions imposed by Laws applicable to the Security Deposit. Tenant hereby waives the provisions of any Laws, now or hereinafter in force, which restricts the amount or types of claim that a landlord may make upon a security deposit or imposes upon a landlord (or its successors) any obligation with respect to the handling or return of security deposits. Landlord is hereby granted a security interest in the Security Deposit in accordance with applicable provisions of the California Commercial Code. Tenant hereby waives the provisions of Section 1950.7 of the California Civil Code, and all other provisions of any Laws, now or hereinafter in force, which restricts the amount or types of claim that a landlord may make upon a security deposit or imposes upon a landlord (or its successors) any obligation with respect to the handling or return of security deposits.
7. Services and Landlord’s Obligations.
7.1 Services. Tenant acknowledges that Tenant has inspected and accepts the water, electricity, heat and air conditioning (“HVAC”) and other utilities and services being supplied or furnished to the Premises as of the date Tenant takes possession of the Premises, as being sufficient and suitable for use of the Premises for the Permitted Use in their present condition, “as is,” and for Tenant’s intended operations in the Premises except as stated in this Lease. Tenant shall pay for all water, gas, heat, light, power, telephone, sewer, sprinkler system charges and other utilities and services used on or from the Premises, together with any taxes, penalties, and surcharges or the like pertaining thereto and any maintenance charges for utilities. Tenant shall furnish all electric light bulbs, tubes and ballasts, battery packs for emergency lighting and fire extinguishers. If any such services are not separately metered to Tenant, Tenant shall pay such proportion of all charges jointly metered with other premises as determined by Landlord, in its sole discretion, to be reasonable. Any such actual charges paid by Landlord and assessed against Tenant shall be immediately payable to Landlord on demand and shall be Additional Rent hereunder. In addition, if applicable, Landlord may install and shall have access to the Premises to monitor a separate meter (or submeter) to determine the actual use of any utility in the Premises or any shared common area and may make available and share actual whole-project energy and water usage data as necessary to maintain the Building’s “green building” certification, if any. Tenant will not, without the written consent of Landlord, which shall not be unreasonably withheld, conditioned or delayed, contract with a utility provider to service the Premises with any utility, including, but not limited to, telecommunications, electricity, water, sewer or gas, which is not previously providing such service to other tenants in the Building. Landlord shall in no event be liable for any interruption or failure of utility services on or to the Premises. To allow for compliance with building performance benchmarking and disclosure regulations, and to facilitate implementation of sustainable improvements to the Building, Tenant shall: (a) retain copies of its “utility data”, which includes, but is not limited to, Tenant’s utility bills and invoices pertaining to Tenant’s energy, water, and trash usage at the Building during the Term of this Lease, and (b) upon request, provide Landlord with copies of such “utility data”. Tenant hereby consents to Landlord obtaining utility data directly from the utility provider and, upon twenty (20) business days after written request, Tenant shall execute and deliver to Landlord and the service providers such commercially reasonable written releases as the service providers may request evidencing Tenant’s consent to deliver the data to Landlord. Landlord shall be entitled to cooperate voluntarily and in a reasonable manner with the efforts of national, state or local governmental agencies or utility suppliers in reducing energy or other resource consumption. The obligation to make services available hereunder shall be subject to the limitations of any such voluntary, reasonable program. In addition, Landlord reserves the right to change the supplier or provider of any such utility or service from time to time and to purchase green or renewable energy. Tenant shall have no right to contract with or otherwise obtain any electrical or other such service for or with respect to the Premises or Tenant’s operations therein from any supplier or provider of any such service. Tenant shall cooperate with Landlord and any supplier or provider of such services designated by Landlord from time to time to facilitate the delivery of such services to Tenant at the Premises and to the Building and Project, including without limitation allowing Landlord and Landlord’s suppliers or providers, and their respective agents and contractors, reasonable access to the Premises for the purpose of installing, maintaining, repairing, replacing or upgrading such service or any equipment or machinery associated therewith. Landlord may, in Landlord’s sole and absolute discretion, elect to apply to obtain or maintain a LEED certification for the Building, or other applicable certification in connection with Landlord’s sustainability practices for the Building (as such sustainability practices are to be determined by Landlord, in its sole and absolute discretion, from time to time). The reasonable costs to obtain or maintain a LEED certification for the Building shall be included in Operating Costs. Landlord shall have the right to install on-site power generation (i.e., solar or small wind) and/or storage (batteries) at the Building or Project. Tenant agrees to cooperate with Landlord in connection with the installation and on-going operation of such on-site power and/or storage. Tenant shall have no right to any renewable energy credits or similar resulting from on-site energy generation or storage, even if Tenant uses such energy. Landlord may retain or assign such renewable energy credits in Landlord’s sole discretion.
7.2 Repair and Maintenance by Landlord. Landlord shall maintain and repair the common areas of the Project, Building’s Structure, the core portions of the Building’s Systems, the parking areas and other exterior areas of the Project, including driveways, alleys, landscape and grounds of the Project, utility lines and any items normally associated with the foregoing. The term “exterior areas of the Project” as used herein shall not include windows, glass or plate glass, doors, special store fronts or office entries. Tenant shall immediately give Landlord written notice of any defect or need of repairs in such components of the Building for which Landlord is responsible, after which Landlord shall have a reasonable opportunity and the right to enter the Premises at all reasonable times to repair same. All costs in performing the work described in this Section shall be included in Operating Costs except to the extent expressly excluded by Section 4.2 or as otherwise expressly set forth in this Section 7.2. Any damage caused by or repairs to the extent caused by the negligence or willful misconduct of Tenant or Tenant’s Parties may be repaired by Landlord at Landlord’s option and Tenant’s actual expense. In no event shall Landlord be responsible for alterations to the Building or Project required by applicable Law arising from or otherwise related to (i) Tenant’s use of the Premises, or (ii) alterations or improvements to the Premises made by or for a Tenant Party (and any such alterations required for the foregoing reasons shall be made by Landlord at Tenant’s sole cost and expense and payable as Additional Rent hereunder and on the same terms and conditions as Landlord performed repairs as described in Section 8.2 below). Tenant shall immediately give Landlord written notice of any defect or need of repairs in such components of the Building or Project for which Landlord is responsible, after which Landlord shall have a reasonable opportunity and the right to enter the Premises at all reasonable times to repair the same. Notwithstanding anything to the contrary contained herein, Landlord shall, in its commercially-reasonable discretion, determine whether, and to the extent, repairs or replacements are the appropriate remedial action.
8. Improvements; Alterations; Repairs; Maintenance.
8.1 Improvements; Alterations. Improvements to the Premises shall be installed at Tenant’s expense only in accordance with plans and specifications which have been previously submitted to and approved in writing by Landlord, which approval shall be governed by the provisions set forth in this Section 8.1. No alterations or physical additions in or to the Premises (including the installation of systems furniture or other equipment or personal property that affects or otherwise connects to the Building’s Systems) may be made without Landlord’s prior written consent, which shall not be unreasonably withheld or delayed; however, Landlord may withhold its consent in its sole discretion to any alteration or addition that would (a) adversely affect (in the reasonable discretion of Landlord) the Building’s Structure or the Building’s Systems (including the Project’s restrooms or mechanical rooms), or (b) affect (in the sole discretion of Landlord) the (1) exterior appearance of the Project, (2) appearance of the Project’s common areas or elevator lobby areas, (3) quiet enjoyment of other tenants or occupants of the Project, or (4) provision of services to other occupants of the Project. To the extent that Landlord grants Tenant the right to use areas within the Project, whether pursuant to the terms of this Lease or through plans and specifications subsequently approved by Landlord (and without implying that Landlord shall grant any such approvals), (A) in no event may Tenant use more than Tenant’s Proportionate Share of the areas within the Building or utility capacity made available by Landlord for general tenant usage for Tenant’s installations and operations in the Premises (including chilled water, electricity, telecommunications room space, electrical room space, plenum space and riser space), and (B) Tenant shall comply with the provisions of this Section with respect to all such items, including Tenant’s Off-Premises Equipment. Tenant shall not paint or install lighting or decorations, signs, window or door lettering, or advertising media of any type visible from the exterior of the Premises without the prior written consent of Landlord, which consent may be withheld in Landlord’s sole and absolute discretion. All alterations, additions, and improvements shall be constructed, maintained, and used by Tenant, at its risk and expense, in accordance with all Laws, using new Building standard materials and constructed in a first-class manner; Landlord’s consent to or approval of any alterations, additions or improvements (or the plans therefor) shall not constitute a representation or warranty by Landlord, nor Landlord’s acceptance, that the same comply with sound architectural and/or engineering practices or with all applicable Laws, and Tenant shall be solely responsible for ensuring all such compliance at Tenant’s sole cost and expense. Tenant shall at Tenant’s sole expense, perform any additional work required under applicable Laws due to construction of any such alterations or improvements. At least ten (10) business days before beginning construction of any alterations or improvements, Tenant shall give Landlord written notice of the expected commencement date of that construction to permit Landlord to post and record a notice of non-responsibility. Upon substantial completion of construction, if the Law so provides, Tenant shall cause a timely notice of completion to be recorded in the office of the recorder of the county in which the Building is located.
All such alterations or improvements shall remain the property of Tenant until the expiration or earlier termination of this Lease, at which time they shall be and become the property of Landlord; provided, however, that Landlord may, at Landlord’s option, require that Tenant, at Tenant’s expense, remove any or all alterations or improvements made by or on behalf of Tenant, including, without limitation, any cold storage improvements, and restore the Premises by the expiration or earlier termination of this Lease, to their condition existing prior to the construction of any such alterations or improvements or Landlord advised Tenant that such item may be removed at the expiration or earlier termination of this Lease. In any event, Tenant, not Landlord, shall, at its sole cost and expense, remove all cabling and wiring installed by or on behalf of Tenant at or servicing the Premises. All such removals and restoration shall be accomplished in a first-class and good and workmanlike manner so as not to cause any damage to the Premises or Project whatsoever. If Tenant fails to remove such alterations or improvements or Tenant’s trade fixtures or furniture or other personal property, Landlord may keep and use them or remove any of them and cause them to be stored or sold in accordance with applicable Law, at Tenant’s sole expense. In addition to and wholly apart from Tenant’s obligation to pay Tenant’s Proportionate Share of Operating Costs and Taxes, Tenant shall be responsible for and shall pay prior to delinquency any taxes or governmental service fees, possessory interest taxes, fees or charges in lieu of any such taxes, capital levies, or other charges imposed upon, levied with respect to or assessed against its fixtures or personal property, on the value of alterations and improvements within the Premises, and on Tenant’s interest pursuant to this Lease, or any increase in any of the foregoing based on such alterations and improvements. To the extent that any such taxes are not separately assessed or billed to Tenant, Tenant shall pay the amount thereof as invoiced to Tenant by Landlord.
8.2 Repair and Maintenance by Tenant. Tenant shall maintain the Premises in a clean, safe, and operable condition, and shall not permit or allow to remain any waste or damage to any portion of the Premises. Additionally, Tenant, at its sole expense, shall promptly repair, replace and maintain in good condition and repair and in accordance with all Laws and the equipment manufacturer’s suggested service programs, all portions of the Premises (excluding the core portion of the Building’s Systems, which shall be maintained by Landlord pursuant to Section 7.2) and Tenant’s Off-Premises Equipment and all areas, improvements and systems exclusively serving the Premises, including the branch lines of the plumbing, electrical and HVAC systems, including all duct work and any dock or loading area serving the Premises, promptly making all necessary repairs and replacements, whether ordinary or extraordinary, with materials and workmanship of the same character, kind and quality as the original (including, but not limited to, repair and replacement of all fixtures installed by Tenant, water heaters serving the Premises, windows, glass and plate glass, doors, exterior stairs, skylights, any special office entries, interior walls and finish work, floors and floor coverings, HVAC systems serving the Premises, electrical systems and fixtures, sprinkler systems, dock boards, truck doors, dock bumpers, plumbing work and fixtures, and performance of regular removal of trash and debris). Tenant shall, at Tenant’s sole cost and expense, immediately upon notice from Landlord, sanitize the Premises if Landlord reasonably determines the same is necessary utilizing such methods as reasonably determined by Landlord. Tenant’s repair and maintenance work shall be undertaken in compliance with Landlord’s Building construction standards (if any) from time to time to the extent applicable (which standards shall be made available to Tenant by Landlord’s Building manager upon request). Notwithstanding any other provision in this Lease to the contrary, with respect to any portion of the Premises visible from any common area inside or outside of the Building (the “Visible Premises”), Tenant shall (a) maintain such Visible Premises and furniture, fixtures and equipment located therein in a neat and first-class condition throughout the Term and any extension thereof, (b) not use the Visible Premises for storage, (c) obtain Landlord’s prior reasonable written consent as to the interior paint color, signage, carpeting, furniture and equipment contained in the Visible Premises, (d) complete within the Visible Premises any requested cleaning within one business day after Landlord’s written request therefor, and (e) complete within the Visible Premises any requested repairs, alterations or changes within five business days after Landlord’s written request therefor. Tenant shall repair or replace, subject to Landlord’s direction and supervision, any damage to the Project to the extent caused by a Tenant Party. If any such damage occurs outside of the Premises, or if such damage occurs inside the Premises but affects the Building’s Systems and/or Building’s Structure or any other area outside the Premises, then Landlord may elect to repair such damage at Tenant’s expense, rather than having Tenant repair such damage. If (1) Tenant fails to commence to make such repairs or replacements within 15 days after the occurrence of such damage and thereafter diligently pursue the completion thereof (or, in the case of an emergency, such shorter period of time as is reasonable given the circumstances), or (2) notwithstanding such diligence, Tenant fails to complete such repairs or replacements within 30 days after the occurrence of such damage (or, in the case of an emergency, such shorter period of time as is reasonable given the circumstances), then Landlord may make the same at Tenant’s cost. The cost of all maintenance, repair or replacement work performed by Landlord under this Section 8, in each case plus an administrative fee of 15% of such cost, shall be paid by Tenant to Landlord as additional rent hereunder within 30 days after Landlord has invoiced Tenant therefor. Tenant shall, at its own cost and expense, enter into a regularly scheduled preventive maintenance/service contract with a maintenance contractor reasonably approved by Landlord for servicing all HVAC systems and equipment serving the Premises (and a copy thereof shall be furnished to Landlord). The service contract must include all services suggested by the equipment manufacturer in the operation/maintenance manual and must become effective within thirty (30) days of the date Tenant takes possession of the Premises. Should Tenant fail to do so or if Landlord elects to perform such maintenance for any reason, Landlord may, upon notice to Tenant, enter into such a maintenance/ service contract on behalf of Tenant or perform the work and in either case, charge Tenant the cost thereof along with a reasonable amount for Landlord’s overhead.
8.3 Performance of Work. All work described in this Section 8 shall be performed only by Landlord or by contractors and subcontractors approved in writing by Landlord and only in accordance with plans and specifications approved in advance by Landlord in writing. Landlord shall have the right of written reasonable consent for construction means and methods, all appropriate permits and licenses, and the time for performance of such work. Tenant shall also supply to Landlord any documents and information reasonably requested by Landlord in connection with Landlord’s consideration of a request for approval hereunder. Tenant shall reimburse Landlord for all costs which Landlord may incur in connection with granting approval to Tenant for any such alterations or improvements, including any costs or expenses which Landlord may incur in electing to have outside architects and engineers review said plans and specifications and Tenant shall pay to Landlord a construction management fee equal to 5% of the cost of such work. Tenant shall cause all contractors and subcontractors to procure and maintain insurance coverage reasonably required by Landlord and naming Landlord, Landlord’s Mortgagee, Landlord’s property management company and Landlord’s asset management company and any other party reasonably designated by Landlord as additional insureds against such risks, in such amounts, and with such companies as Landlord may reasonably require. Tenant shall provide Landlord with the identities, mailing addresses and telephone numbers of all persons performing work or supplying materials prior to beginning such construction and Landlord may post on and about the Premises notices of non-responsibility pursuant to applicable Laws. All such work shall be performed in accordance with all Laws and in a good and workmanlike manner so as not to damage the Building (including the Premises, the Building’s Structure and the Building’s Systems) and shall use materials of a quality that is at least equal to the quality designated by Landlord as the minimum standard for the Building, and in such manner as to cause a minimum of disruption to the other occupants of the Project and interference with other construction in progress and with the transaction of business in the Project. Landlord may designate reasonable rules, regulations and procedures for the performance of all such work in the Building (including insurance requirements for contractors) and, to the extent reasonably necessary to avoid disruption to the occupants of the Building, shall have the right to designate the time when such work may be performed. All such work which may affect the Building’s Structure or the Building’s Systems must be approved by the Project’s engineer of record, at Tenant’s expense and, at Landlord’s election, must be performed by Landlord’s usual contractor for such work. Tenant shall cause all Tenant’s contractors to adhere to the Building’s waste and recycling programs. All work affecting the roof of the Building must be performed by Landlord’s roofing contractor and no such work will be permitted if it would void or reduce or otherwise adversely affect the warranty on the roof. Upon completion of any work described in this Section 8, Tenant shall furnish Landlord with accurate reproducible “as-built” CADD files of the improvements as constructed.
8.4 Mechanic’s Liens. All work performed, materials furnished, or obligations incurred by or at the request of a Tenant Party shall be deemed authorized and ordered by Tenant only, and Tenant shall not permit any mechanic’s or construction liens to be filed against the Premises or the Project in connection therewith. Upon completion of any such work, Tenant shall promptly deliver to Landlord final unconditional lien waivers from all contractors, subcontractors and materialmen who performed such work. If such a lien is filed, then Tenant shall, within ten (10) days after Landlord has delivered notice of the filing thereof to Tenant (or such earlier time period as may be necessary to prevent the forfeiture of the Premises, the Project or any interest of Landlord therein or the imposition of a civil or criminal fine with respect thereto), either (a) pay the amount of the lien and cause the lien to be released of record, or (b) diligently contest such lien and deliver to Landlord a bond or other security reasonably satisfactory to Landlord. If Tenant fails to timely take either such action, then Landlord shall have the right, but not the obligation, to pay the lien claim, and any amounts so paid, including expenses and interest, shall be paid by Tenant to Landlord as additional rent hereunder within ten days after Landlord has invoiced Tenant therefor. Landlord and Tenant acknowledge and agree that their relationship is and shall be solely that of “landlord-tenant” (thereby excluding a relationship of “owner-contractor,” “owner-agent” or other similar relationships) and that Tenant is not authorized to act as Landlord’s common law agent or construction agent in connection with any work performed in the Premises. Accordingly, all materialmen, contractors, artisans, mechanics, laborers and any other persons now or hereafter contracting with Tenant, any contractor or subcontractor of Tenant or any other Tenant Party for the furnishing of any labor, services, materials, supplies or equipment with respect to any portion of the Premises, at any time from the date hereof until the end of the Term, are hereby charged with notice that they look exclusively to Tenant to obtain payment for same. Nothing herein shall be deemed a consent by Landlord to any liens being placed upon the Premises, the Project or Landlord’s interest therein due to any work performed by or for Tenant or deemed to give any contractor or subcontractor or materialman any right or interest in any funds held by Landlord to reimburse Tenant for any portion of the cost of such work. Tenant shall defend, indemnify and hold harmless Landlord and its agents and representatives from and against all claims, demands, causes of action, suits, judgments, damages and expenses (including attorneys’ fees) in any way arising from or relating to the failure by any Tenant Party to pay for any work performed, materials furnished, or obligations incurred by or at the request of a Tenant Party. This indemnity provision shall survive termination or expiration of this Lease.
8.5 Waiver. Except as provided in Article 15, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant’s business arising from the making of any repairs, alterations or improvements in or to any portion of the Building or the Premises or to fixtures, appurtenances and equipment in the Building; provided, however, that the foregoing shall not be deemed to prohibit Tenant from making a claim against Landlord but in any such event Tenant shall not be entitled to receive any consequential, special or indirect damages. Instead, any such claim of Tenant shall be limited to the foreseeable, direct and actual damages incurred by Tenant. Tenant hereby waives any and all rights under and benefits of subsection 1 of Section 1932 and Sections 1941 and 1942 of the California Civil Code, or any similar or successor Regulations or other laws now or hereinafter in effect.
9. Use of the Premises. Tenant shall continuously occupy and use the Premises only for the Permitted Use and shall comply with all Laws relating to the use, condition, access to, and occupancy of the Premises and will not commit waste, overload the Building’s Structure or the Building’s Systems or subject the Premises to use that would damage the Premises. The occupancy density within the Premises as a whole shall at no time exceed one person for each 300 rentable square feet in the Premises; however, such population density may from time to time exceed such number on a temporary basis for meetings, conferences and other events of a temporary nature. Notwithstanding anything in this Lease to the contrary, as between Landlord and Tenant, (a) Tenant shall bear the risk of complying with Title III of the Americans With Disabilities Act of 1990, any state laws governing handicapped access or architectural barriers, and all rules, regulations, and guidelines promulgated under such laws, as amended from time to time (the “Disabilities Acts”) in the Premises, and (b) Landlord shall bear the risk of complying with the Disabilities Acts in the common areas of the Building (and the cost thereof shall be included in Operating Costs), other than compliance that is necessitated by the use of the Premises for other than the Permitted Use or as a result of any alterations or additions, including any initial tenant improvement work, made by or on behalf of a Tenant Party (which risk and responsibility shall be borne by Tenant). The Premises shall not be used for any use which is disreputable, creates extraordinary fire hazards, or results in an increased rate of insurance on the Project or its contents, or, subject to the terms of Section 25.24, for the storage of any Hazardous Materials (other than de minimis quantities found in typical office supplies [e.g., photocopier toner] and Hazardous Materials contained in products stored and/or distributed during Tenant’s normal course of business in their original, sealed and unopened containers, and then only in compliance with all Laws and in a reasonable and prudent manner). Tenant shall not permit any odors, smoke, dust, gas, substances, noise or vibrations to emanate from the Premises or from any portion of the common areas as a result of Tenant’s or any Tenant’s Party’s use thereof. Except as provided below, the following uses are expressly prohibited in the Premises: schools, governmental offices or agencies; personnel agencies; collection agencies; credit unions; data processing, telemarketing, reservation centers or other “call centers”; medical treatment and health care; radio, television or other communications broadcasting; restaurants and other retail; and customer service offices of a public utility company. Notwithstanding the preceding sentence, the following ancillary uses are permitted in the Premises only so long as they do not, in the aggregate, occupy more than 10% of the rentable square feet in the Premises or any single floor (whichever is less): (1) the following services provided by Tenant exclusively to its employees: schools, training and other educational services; credit unions; and similar employee services; and (2) the following services directly and exclusively supporting Tenant’s business: telemarketing; reservations; storage; data processing; debt collection; and similar support services. If, because of a Tenant Party’s acts or omissions or because Tenant vacates the Premises, the rate of insurance on the Building or its contents increases, then such acts or omissions shall be an Event of Default, Tenant shall pay to Landlord the amount of such increase on demand, and acceptance of such payment shall not waive any of Landlord’s other rights. Tenant shall conduct its business and control each other Tenant Party so as not to create any nuisance or unreasonably interfere with other tenants or Landlord in its management of the Project. Tenant shall not allow or give notice of any sale by auction upon the Premises, or place any loads upon the floors, walls or ceilings which could endanger the structure, or place any harmful substances in the drainage system of the Building or Project. No waste, materials or refuse shall be dumped upon or permitted to remain outside the Premises. Landlord shall not be responsible to Tenant for the non-compliance by any other tenant or occupant of the Building or Project with any of the above-referenced restrictions or any other terms or provisions of such tenant’s or occupant’s lease or other contract. The Premises shall not be used as a place of public accommodation under the Americans With Disabilities Act or similar statute or ordinance or any regulation promulgated thereunder, all as may be amended from time to time. Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Lease, the Premises has not undergone inspection by a “Certified Access Specialist” (“CASp”) to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. Landlord hereby discloses pursuant to California Civil Code Section 1938 as follows: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.” Landlord and Tenant hereby acknowledge and agree that in the event Tenant elects to perform a CASp inspection of the Premises hereunder (the “Inspection”), such Inspection shall be (a) performed at Tenant’s sole cost and expense, (b) limited to the Premises and (c) performed by a CASp who has been approved or designated by Landlord prior to the Inspection. Any Inspection must be performed in a manner which minimizes the disruption of business activities in the Building, and at a time reasonably approved by Landlord. Landlord reserves the right to be present during the Inspection. Tenant agrees to: (i) promptly provide to Landlord a copy of the report or certification prepared by the CASp inspector upon request (the “Report”), and (ii) keep the information contained in the Report confidential, except to the extent required by Laws, or to the extent disclosure is needed in order to complete any necessary modifications or improvements required to comply with all applicable accessibility standards under state or federal Laws, as well as any other repairs, upgrades, improvements, modifications or alterations required by the Report or that may be otherwise required to comply with applicable Laws or accessibility requirements (the “Access Improvements”). If Tenant performs an Inspection, Tenant shall be solely responsible for the cost of the Access Improvements to the Premises or the Building necessary to correct any such violations of construction-related accessibility standards identified by such Inspection as required by Laws, which Access Improvements may, at Landlord’s option, be performed in whole or in part by Landlord at Tenant’s expense, payable as Additional Rent within ten (10) days following Landlord’s demand.
10. Assignment and Subletting.
10.1 Transfers. Except as provided in Section 10.8, Tenant shall not, without the prior written consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, (a) assign, transfer, or encumber this Lease or any estate or interest herein, whether directly or by operation of law, (b) permit any other entity to become Tenant hereunder by merger, consolidation, or other reorganization, (c) if Tenant is an entity other than a corporation whose stock is publicly traded, permit the transfer of an ownership interest in Tenant so as to result in a change in the current direct or indirect control of Tenant, (d) sublet any portion of the Premises, (e) grant any license, concession, or other right of occupancy of any portion of the Premises, (f) permit the use of the Premises by any parties other than Tenant, or (g) sell or otherwise transfer, in one or more transactions, a majority of Tenant’s assets (any of the events listed in Section Error! Reference source not found. through Error! Reference source not found. being a “Transfer”). If Tenant is a corporation, a transfer of corporate shares by sale, assignment, bequest, inheritance, operation of law or other disposition (including such a transfer to or by a receiver or trustee in federal or state bankruptcy, insolvency or other proceedings) resulting in a change in the present control of such corporation or any of its parent corporations by the person or persons owning a majority of said corporate shares, shall constitute an assignment for purposes of this Lease. If Tenant is a partnership, joint venture, unincorporated limited liability company or other unincorporated business form, a transfer of the interest of persons, firms or entities responsible for managerial control of Tenant by sale, assignment, bequest, inheritance, operation of law or other disposition, so as to result in a change in the present control of said entity and/or of the underlying beneficial interests of said entity and/or a change in the identity of the persons responsible for the general credit obligations of said entity shall constitute an assignment for all purposes of this Lease. This Lease is personal to Tenant, and Tenant’s rights granted hereunder do not include the right to receive any excess, either in installments or lump sum, over the Rent payable hereunder of which is expressly reserved by Landlord as hereinafter provided, except as otherwise expressly hereinafter provided. No assignment or subletting by Tenant, permitted or otherwise, or other Transfer, shall relieve Tenant of any obligation under this Lease or any guarantor of this Lease of any liability under its guaranty or alter the primary liability of the Tenant named herein for the payment of Rent or for the performance of any other obligations to be performed by Tenant. Tenant hereby waives the provisions of Section 1995.310 of the California Civil Code, or any similar or successor laws, now or hereinafter in effect, and all other remedies, including, without limitation, any right at law or equity to terminate this Lease, on its own behalf and, to the extent permitted under all applicable laws, on behalf of the proposed transferee.
10.2 Consent Standards. Landlord shall not unreasonably withhold, condition or delay its consent to any assignment of Tenant’s entire interest in this Lease or subletting of the Premises. Tenant acknowledges and agrees that it is reasonable for Landlord to withhold consent to any Transfer if the proposed transferee (a) is not creditworthy, (b) will use the Premises for other than the Permitted Use (thus, including, without limitation, uses for credit processing and telemarketing) and will not use the Premises in any manner that would conflict with any exclusive use agreement or other similar agreement entered into by Landlord with any other tenant of the Project, (c) will only use the Premises, Building or Project in a manner that shall not materially increase Operating Costs or the pedestrian or vehicular traffic to the Premises, Building or Project, (d) is a governmental or quasi-governmental entity, or subdivision or agency thereof, or any other entity entitled to the defense of sovereign immunity, (e) is another occupant of the Project or an Affiliate of such occupant, (f) is currently and/or has in the past been involved in litigation with Landlord or any of its Affiliates, (g) fails to meet Landlord’s reasonable standards for tenants of the Project, (h) may result in, either by the transfer or any consideration payable to Landlord in connection therewith, an adverse effect on any real estate investment trust (or pension fund or other ownership vehicle) qualification tests applicable to Landlord or any of its Affiliates, and (i) is a person or entity with whom Landlord is then, or has been within the six-month period prior to the time Tenant seeks to enter into such assignment or subletting, negotiating to lease space in the Project or any Affiliate of any such person or entity. Additionally, Landlord may withhold its consent to any proposed Transfer if any Event of Default by Tenant then exists. Any Transfer made while an Event of Default exists hereunder, irrespective whether Landlord’s consent is required hereunder with respect to the Transfer, shall be voidable by Landlord in Landlord’s sole discretion. In agreeing to act reasonably, Landlord is agreeing to act in a manner consistent with the standards followed by large institutional owners of commercial real estate and Landlord is permitted to consider the financial terms of the Transfer and the impact of the Transfer on Landlord’s own leasing efforts and the value of the Project. Landlord may condition its consent to a Transfer on an increase in the Security Deposit or receipt of a guaranty from a suitable party. Landlord shall not be required to act reasonably in considering any request to pledge or encumber this Lease or any interest therein.
10.3 Request for Consent. If Tenant requests Landlord’s consent to a Transfer, then, at least 15 business days prior to the effective date of the proposed Transfer and Landlord shall approve or disapprove within twenty (20) days following receipt of all information required hereunder, Tenant shall provide Landlord with a written description of all terms and conditions of the proposed Transfer, copies of the proposed documentation, and the following information about the proposed transferee: name and address of the proposed transferee and any entities and persons who own, control or direct the proposed transferee; reasonably satisfactory information about its business and business history; its proposed use of the Premises; banking, financial, and other credit information; general references sufficient to enable Landlord to determine the proposed transferee’s creditworthiness and character, and any other information and/or documentation reasonably requested by Landlord. Concurrently with Tenant’s notice of any request for consent to a Transfer, Tenant shall pay to Landlord a fee of $1,000 to defray Landlord’s expenses in reviewing such request, and Tenant shall also reimburse Landlord immediately upon request for its reasonable attorneys’ fees and other expenses incurred in connection with considering any request for consent to a Transfer, which shall not exceed $2,500.00. Failure by or refusal of Landlord to consent to a proposed assignee or subtenant shall not cause a termination of this Lease.
10.4 Conditions to Consent. If Landlord consents to a proposed Transfer, then the proposed transferee shall deliver to Landlord a written agreement whereby it expressly assumes Tenant’s obligations hereunder; however, any transferee of less than all of the space in the Premises shall be liable only for obligations under this Lease that are properly allocable to the space subject to the Transfer for the period of the Transfer. No Transfer shall release Tenant from its obligations under this Lease, but rather Tenant and its transferee shall be jointly and severally liable therefor. Landlord’s consent to any Transfer shall not waive Landlord’s rights as to any subsequent Transfers and no subtenant of any portion of the Premises shall be permitted to further sublease any portion of its subleased space. If a breach or default by Tenant occurs while the Premises or any part thereof are subject to a Transfer, then Landlord, in addition to its other remedies, may collect directly from such transferee all rents becoming due to Tenant and apply such rents against Rent as reasonably determined by Landlord. Tenant authorizes its transferees to make payments of rent directly to Landlord upon receipt of notice from Landlord to do so following the occurrence of a breach or default by Tenant hereunder. Tenant shall pay for the cost of any demising walls or other improvements necessitated by a proposed subletting or assignment.
10.5 Attornment by Subtenants. Each sublease by Tenant hereunder shall be subject and subordinate to this Lease and to the matters to which this Lease is or shall be subordinate, and each subtenant by entering into a sublease is deemed to have agreed that in the event of termination, re-entry or dispossession by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublandlord, under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that Landlord shall not be (a) liable for any previous act or omission of Tenant under such sublease, (b) subject to any counterclaim, offset or defense that such subtenant might have against Tenant, (c) bound by any previous modification of such sublease not approved by Landlord in writing or by any rent or additional rent or advance rent which such subtenant might have paid for more than the current month to Tenant, and all such rent shall remain due and owing, notwithstanding such advance payment, (d) bound by any security or advance rental deposit made by such subtenant which is not delivered or paid over to Landlord and with respect to which such subtenant shall look solely to Tenant for refund or reimbursement, or (e) obligated to perform any work in the subleased space or to prepare it for occupancy, and in connection with such attornment, the subtenant shall execute and deliver to Landlord any instruments Landlord may reasonably request to evidence and confirm such attornment. If Landlord does not take over all right, title and interest of Tenant, as sublandlord, pursuant to the foregoing, if this Lease terminates at the time any sublease or other such agreement so affecting any part of the Premise remains in effect, such sublease or other agreement shall also terminate. Each subtenant or licensee of Tenant shall be deemed, automatically upon and as a condition of its occupying or using the Premises or any part thereof, to have agreed to be bound by the terms and conditions set forth in this Section 10.5. The provisions of this Section 10.5 shall be self-operative, and no further instrument shall be required to give effect to this provision.
10.6 Cancellation. Landlord may, within 30 days after submission of Tenant’s written request for Landlord’s consent to an assignment or subletting, cancel this Lease as to the portion of the Premises proposed to be sublet or assigned as of the date the proposed Transfer is to be effective. If Landlord cancels this Lease as to any portion of the Premises, then this Lease shall cease for such portion of the Premises on the date set forth in Landlord’s cancellation notice to Tenant and Tenant shall pay to Landlord all Rent accrued through the cancellation date relating to the portion of the Premises covered by the proposed Transfer. Thereafter, Landlord may lease such portion of the Premises to the prospective transferee (or to any other person) without liability to Tenant.
10.7 Additional Compensation. Tenant shall pay to Landlord, immediately upon receipt thereof, 50% of the excess of (a) all compensation received by Tenant for a Transfer over (b) the Rent allocable to the portion of the Premises covered thereby.
10.8 Permitted Transfers. Notwithstanding Section 10.1, so long as Tenant is not in breach or default of this Lease beyond applicable notice and cure periods and immediately following the Permitted Transfer, the Permitted Transferee has a Tangible Net Worth not less than the Tangible Net Worth of Tenant as of the date hereof, Tenant may Transfer all or part of its interest in this Lease or all or part of the Premises (a “Permitted Transfer”) to the following types of entities (a “Permitted Transferee”) without the written consent of Landlord:
10.8.1 an Affiliate of Tenant, but only so long as such transferee remains an Affiliate of Tenant;
10.8.2 any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of business entities, so long as Tenant’s obligations hereunder are assumed by the entity surviving such merger or created by such consolidation; or
10.8.3 any corporation, limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant’s assets, so long as Tenant’s obligations hereunder are assumed by the entity acquiring such assets.
Tenant shall promptly notify Landlord of any such Permitted Transfer (but in any event no later than ten days prior to the effective date of the Permitted Transfer unless prohibited by Law or other legal agreement, in which event Tenant shall notify Landlord no later than five days following the effective date of the Permitted Transfer. Following the effective date of any such Permitted Transfer, Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder, or if Tenant no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Permitted Use, and the use of the Premises by the Permitted Transferee may not violate any other agreements affecting the Premises or the Project, Landlord or other tenants of the Project. No later than ten days after the effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with (1) copies of the instrument effecting any of the foregoing Transfers, (2) documentation establishing Tenant’s satisfaction of the requirements set forth above applicable to any such Transfer, and (3) evidence of insurance as required under this Lease with respect to the Permitted Transferee. The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. The right to Transfer to an Affiliate pursuant to Section 10.8.1 shall be subject to the condition that such Permitted Transferee remains an Affiliate of Tenant and that on or before such Transfer being effected both Tenant and such Permitted Transferee must enter into an agreement with Landlord, on Landlord’s then standard commercially reasonable form, Tenant and such Permitted Transferee, each acting reasonably, that if such Permitted Transferee ceases to be an Affiliate of Tenant, it shall so notify Landlord in writing within ten days after such event and, upon the written request of Landlord, transfer, assign, set over and/or re-assign this Lease and its interest in the Premises, as applicable, to Tenant or, subject to complying with this condition, another Affiliate of Tenant. “Tangible Net Worth” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted Transferee shall be subject to the terms of this Section 10.
11. Insurance; Waivers; Subrogation; Indemnity.
11.1 Tenant’s Insurance. Effective as of the earlier of (a) the date Tenant enters or occupies the Premises, or (b) the Commencement Date, and continuing throughout the Term, Tenant, at its sole cost and expense, shall maintain the following insurance policies: (1) commercial general liability insurance (including property damage, bodily injury and personal injury coverage, contractual liability) in amounts of $1,000,000 per occurrence and $2,000,000 in the annual aggregate in primary coverage or, such other amounts as Landlord may from time to time reasonably require; and in the event property of Tenant’s invitees or customers are kept in, or about the, Premises, Tenant shall maintain warehousemen’s legal liability or bailee customers insurance for the full value of the property of such invitees or customers as determined by the warehouse contract between Tenant and its customer; and if the use and occupancy of the Premises include any activity or matter that is or may be excluded from coverage under a commercial general liability policy [e.g., the sale, service or consumption of alcoholic beverages], Tenant shall obtain such endorsements to the commercial general liability policy or otherwise obtain insurance to insure all liability arising from such activity or matter [including liquor liability, if applicable] in such amounts as Landlord may reasonably require), insuring Tenant (and naming as additional insureds Landlord, Landlord’s property management company, Landlord’s asset management company and, if requested in writing by Landlord, Landlord’s Mortgagee), against all liability for injury to or death of a person or persons or damage to property arising from the use and occupancy of the Premises and (without implying any consent by Landlord to the installation thereof) the installation, operation, maintenance, repair or removal of Tenant’s Off-Premises Equipment, (2) cause of loss-special risk form (formerly “all-risk”) or its equivalent insurance (including, but not limited to, sprinkler leakage, ordinance and law, sewer back-up, pipe burst, wind-driven rain, water leakage, flood, earthquake, windstorm and collapse coverage) covering the full value of all furniture, trade fixtures, equipment and personal property (including property of Tenant or others), alterations and improvements and betterments in the Premises or otherwise placed in the Project by or on behalf of a Tenant Party (including Tenant’s Off-Premises Equipment), naming Landlord and Landlord’s Mortgagee as additional loss payees as their interests may appear, (3) contractual liability insurance sufficient to cover Tenant’s indemnity obligations hereunder (but only if such contractual liability insurance is not already included in Tenant’s commercial general liability insurance policy), (4) employers’ liability insurance of at least $1,000,000, (5) commercial auto liability insurance (if applicable) covering automobiles owned, hired or used by Tenant in carrying on its business with limits not less than $1,000,000 combined single limit for each accident, insuring Tenant (and naming as additional insureds Landlord, Landlord’s property management company, Landlord’s asset management company and, if requested in writing by Landlord, Landlord’s Mortgagee), (6) workers’ compensation insurance as required by the state in which the Premises is located and in amounts as may be required by applicable statute and shall include a waiver of subrogation in favor of Landlord, (7) business interruption insurance with a limit representing loss of at least approximately 6 months of income, and (8) Umbrella or Excess Liability Insurance with limits of $5,000,000 per occurrence and $5,000,000 in the aggregate providing coverage over commercial general liability, automobile liability and employers liability required above.
Tenant’s insurance shall be primary and non-contributory when any policy issued to Landlord provides duplicate or similar coverage, and in such circumstance Landlord’s policy will be excess over Tenant’s policy. The limits and types of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. Tenant shall furnish to Landlord certificates of such insurance and such other evidence satisfactory to Landlord of the maintenance of all insurance coverages required hereunder at least ten days prior to the earlier of the Commencement Date or the date Tenant enters or occupies the Premises (in any event, within ten days of the effective date of coverage), and at least 15 days prior to each renewal of said insurance, and Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least 30 days before cancellation or a material change of any such insurance policies. All such insurance policies shall be in form reasonably satisfactory to Landlord and issued by companies with an A.M. Best rating of A:VIII or better. Acceptance by Landlord of delivery of any certificates of insurance does not constitute approval or agreement by Landlord that the insurance requirements of this section have been met, and failure of Landlord to identify a deficiency from evidence provided will not be construed as a waiver of Tenant’s obligation to maintain such insurance. If Tenant fails to comply with the foregoing insurance requirements or to deliver to Landlord the certificates or evidence of coverage required herein, Landlord, in addition to any other remedy available pursuant to this Lease or otherwise, may, but shall not be obligated to, obtain such insurance and Tenant shall pay to Landlord on demand the premium costs thereof, plus an administrative fee of 15% of such cost.
11.2 Landlord’s Insurance. Throughout the Term of this Lease, Landlord shall maintain, as a minimum, the following insurance policies: (a) property insurance for the Building’s replacement value (excluding property required to be insured by Tenant), less a commercially-reasonable deductible if Landlord so chooses, and (b) commercial general liability insurance on the Project. Landlord may, but is not obligated to, maintain such other insurance and additional coverages as it may deem necessary. The cost of all insurance carried by Landlord with respect to the Project shall be included in Operating Costs. The foregoing insurance policies and any other insurance carried by Landlord shall be for the sole benefit of Landlord and under Landlord’s sole control, and Tenant shall have no right or claim to any proceeds thereof or any other rights thereunder. Any insurance required to be maintained by Landlord may be taken out under a blanket insurance policy or policies covering other buildings, property or insureds in addition to the Building and Landlord. In such event, the costs of any such blanket insurance policy or policies shall be reasonably allocated to the Project and the other properties covered by such policy or policies as reasonably determined by Landlord and included as part of Operating Costs. Tenant shall also reimburse Landlord for any increased premiums or additional insurance which Landlord reasonably deems solely and necessary as a result of Tenant’s use of the Premises. Notwithstanding anything in this Lease to the contrary, Landlord’s indemnity obligations under this Lease shall be limited to the extent any such claim is insured against under the terms of any insurance policy maintained by Landlord (or is required to be maintained by Landlord under the terms of this Lease).
11.3 No Subrogation; Waiver of Property Claims. Landlord and Tenant each waives (and shall cause their respective insurers to waive) any claim it might have against the other for any damage to or theft, destruction, loss, or loss of use of any property, to the extent the same is insured against under any fire, extended coverage or other property insurance policy insurance policy of the types described in this Section 11 that covers the Project, the Premises, Landlord’s or Tenant’s fixtures, personal property, leasehold improvements, or business, or is required to be insured against under the terms hereof, regardless of whether the negligence of the other party caused such Loss (defined below). Additionally, Tenant waives any claim it may have against Landlord for any Loss to the extent such Loss is caused by a terrorist act. Each party shall cause its insurance carrier to endorse all applicable policies waiving the carrier’s rights of recovery under subrogation or otherwise against the other party. Neither party nor its officers, directors, employees, managers, agents, invitees or contractors shall be liable to the other for loss or damage caused by any risk coverable by all risk or special form property insurance, and each party waives any claims against the other party, and its officers, directors, employees, managers, agents, invitees and contractors for such loss or damage. The failure of a party to insure its property shall not void this waiver. Notwithstanding any provision in this Lease to the contrary, Landlord, its agents, employees and contractors shall not be liable to Tenant or to any party claiming by, through or under Tenant for (and Tenant hereby releases Landlord and its servants, agents, contractors, employees and invitees from any claim or responsibility for) any damage to or destruction, loss, or loss of use, or theft of any property of any Tenant Party located in or about the Project, caused by casualty, theft, fire, third parties or any other matter or cause, regardless of whether the negligence of any party caused such loss in whole or in part. Tenant acknowledges that Landlord shall not carry insurance on, and shall not be responsible for damage to, any property of any Tenant Party located in or about the Project.
11.4 Indemnity. Subject to Section 11.3, except for the gross negligence or willful misconduct of Landlord and as stated in this Lease, Tenant shall defend, indemnify, and hold harmless Landlord and its representatives and agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages, and expenses (including reasonable attorneys’ fees) arising from any injury to or death of any person or the damage to or theft, destruction, loss, or loss of use of, any property or inconvenience (a “Loss”) (a) occurring in or on the Project (other than within the Premises) to the extent caused by and act, negligence or willful misconduct of any Tenant Party, (b) occurring in the Premises, (c) arising out of the installation, operation, maintenance, repair or removal of any property of any Tenant Party located in or about the Project, including Tenant’s Off-Premises Equipment, (d) claims of injury to or death of persons or damage to property or business loss occurring or resulting directly or indirectly from the use or occupancy of the Premises, Building or Project by Tenant or Tenant’s Parties, or from activities or failures to act of Tenant or Tenant’s Parties, (e) claims arising from any breach or default on the part of Tenant in the performance of any covenant contained in this Lease, and/or (f) claims arising from work or labor performed, or for materials or supplies furnished to or at the request or for the account of Tenant in connection with performance of any work done for the account of Tenant within the Premises or Project. It being agreed that clauses (b) and Error! Reference source not found. of this indemnity are intended to indemnify Landlord and its agents against the consequences of their own negligence or fault, even when Landlord or its agents are jointly, comparatively, contributively, or concurrently negligent with Tenant, and even though any such claim, cause of action or suit is based upon or alleged to be based upon the strict liability of Landlord or its agents; however, such indemnity shall not apply to the sole or gross negligence or willful misconduct of Landlord and its agents. Subject to Section 11.3, Landlord shall defend, indemnify, and hold harmless Tenant and its agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages, and expenses (including reasonable attorneys’ fees) for any Loss arising from any occurrence in or on the Building’s common areas to the extent caused by the negligence or willful misconduct of Landlord or its agents. The indemnities set forth in this Lease shall survive termination or expiration of this Lease and shall not terminate or be waived, diminished or affected in any manner by any abatement or apportionment of Rent under any provision of this Lease. If any proceeding is filed for which indemnity is required hereunder, the indemnifying party agrees, upon request therefor, to defend the indemnified party in such proceeding at its sole cost utilizing counsel satisfactory to the indemnified party.
12. Subordination; Attornment; Notice to Landlord’s Mortgagee.
12.1 Subordination. This Lease shall be subordinate to any deed of trust, mortgage, or other security instrument (each, a “Mortgage”), or any ground lease, master lease, or primary lease (each, a “Primary Lease”), that now or hereafter covers all or any part of the Premises (the mortgagee under any such Mortgage, beneficiary under any such deed of trust, or the lessor under any such Primary Lease is referred to herein as a “Landlord’s Mortgagee”). Any Landlord’s Mortgagee may elect, at any time, unilaterally, to make this Lease superior to its Mortgage, Primary Lease, or other interest in the Premises by so notifying Tenant in writing. The provisions of this Section shall be self-operative and no further instrument of subordination shall be required; however, in confirmation of such subordination, Tenant shall execute and return to Landlord (or such other party designated by Landlord) within ten days after written request therefor such documentation, in recordable form if required, as a Landlord’s Mortgagee may reasonably request to evidence the subordination of this Lease to such Landlord’s Mortgagee’s Mortgage or Primary Lease (including a subordination, non-disturbance and attornment agreement) or, if Landlord’s Mortgagee so elects, the subordination of such Landlord’s Mortgagee’s Mortgage or Primary Lease to this Lease.
12.2 Attornment. Tenant shall attorn to any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise, upon such party’s request, and shall execute such agreements confirming such attornment as such party may reasonably request.
12.3 Notice to Landlord’s Mortgagee. Tenant shall not seek to enforce any remedy it may have for any default on the part of Landlord without first giving written notice by certified mail, return receipt requested, specifying the default in reasonable detail, to any Landlord’s Mortgagee whose address has been given to Tenant, and affording such Landlord’s Mortgagee a reasonable opportunity to perform Landlord’s obligations hereunder.
12.4 Landlord’s Mortgagee’s Protection Provisions. If Landlord’s Mortgagee shall succeed to the interest of Landlord under this Lease, Landlord’s Mortgagee shall not be: (a) liable for any act or omission of any prior lessor (including Landlord); (b) bound by any rent or additional rent or advance rent which Tenant might have paid for more than the current month to any prior lessor (including Landlord), and all such rent shall remain due and owing, notwithstanding such advance payment; (c) bound by any security or advance rental deposit made by Tenant which is not delivered or paid over to Landlord’s Mortgagee and with respect to which Tenant shall look solely to Landlord for refund or reimbursement; (d) bound by any termination, amendment or modification of this Lease made without Landlord’s Mortgagee’s consent and written approval, except for those terminations, amendments and modifications permitted to be made by Landlord without Landlord’s Mortgagee’s consent pursuant to the terms of the loan documents between Landlord and Landlord’s Mortgagee; (e) subject to the defenses which Tenant might have against any prior lessor (including Landlord); and (f) subject to the offsets which Tenant might have against any prior lessor (including Landlord) except for those offset rights which (1) are expressly provided in this Lease, (2) relate to periods of time following the acquisition of the Building by Landlord’s Mortgagee, and (3) Tenant has provided written notice to Landlord’s Mortgagee and provided Landlord’s Mortgagee a reasonable opportunity to cure the event giving rise to such offset event. Landlord’s Mortgagee shall have no liability or responsibility under or pursuant to the terms of this Lease or otherwise after it ceases to own fee simple title to the Project. Nothing in this Lease shall be construed to require Landlord’s Mortgagee to see to the application of the proceeds of any loan, and Tenant’s agreements set forth herein shall not be impaired on account of any modification of the documents evidencing and securing any loan. As used in this Section 12.4, Landlord’s Mortgagee shall include any party succeeding to Landlord’s interest in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale, termination of lease, or otherwise.
12.5 Modification of Lease. If any Landlord’s Mortgagee requires a modification of this Lease, which modification will not cause an increased cost or expense to Tenant or in any other way materially and adversely change the rights and obligations of Tenant hereunder, Tenant agrees that this Lease may be so modified and agrees to execute whatever documents are reasonably required therefor and to deliver the same to Landlord within ten business days following a request therefor. At the request of Landlord or any Landlord’s Mortgagee, Tenant agrees to execute a short form of this Lease and deliver the same to Landlord within ten business days following the request therefor.
13. Rules and Regulations. Tenant shall comply with the rules and regulations of the Project which are attached hereto as Exhibit B. Landlord may, from time to time, change such rules and regulations for the safety, care, traffic flow, cleanliness and/or general order of the Project and related facilities, provided that such changes are generally applicable to all tenants of the Project whose leases require such compliance, will not unreasonably interfere with Tenant’s use of the Premises and are enforced by Landlord in a non-discriminatory manner among all tenants whose leases require such compliance. Tenant shall be responsible for the compliance or noncompliance with such rules and regulations by each Tenant Party. Landlord shall not be responsible to Tenant for the non-compliance by any other tenant or occupant of the Building or Project with any of such rules and regulations, any other tenant’s or occupant’s lease or any Laws. In the event of any conflict between the rules and regulations and the terms and conditions of this Lease, the terms and conditions of this Lease shall control.
14.1 Total Taking. If the entire Building or Premises are taken or condemned for any public use or otherwise by right of eminent domain or conveyed in lieu thereof (a “Taking”), this Lease shall terminate as of the date of the Taking. Any regulatory action, ordinance or Law limiting or temporarily prohibiting Tenant’s right to enter or use the Premises, the Building and/or the Project shall not be construed as a taking or appropriation under this Section 14 and Tenant shall have no right to rent abatement or termination right as a result thereof notwithstanding anything to the contrary contained herein.
14.2 Partial Taking - Tenant’s Rights. If any part of the Building becomes subject to a Taking and such Taking will prevent Tenant from conducting its business on a permanent basis in the Premises in a manner reasonably comparable to that conducted immediately before such Taking, then Tenant may terminate this Lease as of the date of such Taking by giving written notice to Landlord within 30 days after the Taking, and Basic Rent and Additional Rent shall be apportioned as of the date of such Taking. If Tenant does not terminate this Lease, then Basic Rent and Additional Rent shall be abated on a reasonable basis as to that portion of the Premises rendered untenantable by the Taking.
14.3 Partial Taking - Landlord’s Rights. If any material portion, but less than all, of the Building or Project becomes subject to a Taking, or if Landlord is required to pay any of the proceeds arising from a Taking to a Landlord’s Mortgagee, then Landlord may terminate this Lease by delivering written notice thereof to Tenant within 30 days after such Taking, and Basic Rent and Additional Rent shall be apportioned as of the date of such Taking. If Landlord does not so terminate this Lease, then this Lease will continue, but if any portion of the Premises has been taken, Basic Rent and Additional Rent shall abate as provided in the last sentence of Section 14.2.
14.4 Award. If any Taking occurs, then Landlord shall receive the entire award or other compensation for the Project and other improvements taken; however, Tenant may separately pursue a claim (to the extent it will not reduce Landlord’s award) against the condemnor for the value of Tenant’s personal property which Tenant is entitled to remove under this Lease, moving costs and loss of business.
14.5 Restoration. In the event of any Taking of less than the whole of the Premises which does not result in a termination of this Lease, (a) Landlord, at its expense but only to the extent of the award actually received by Landlord pursuant to such Taking (after deducting any reasonable expenses incurred in connection with such Taking), shall proceed with reasonable diligence to repair, alter and restore the remaining parts of the affected Building and the Premises therein to the extent practicable, and (b) if requested by either party, Landlord and Tenant shall promptly execute an amendment to this Lease confirming the deletion from the Premises of the space subject to the Taking.
14.6 Waiver. Tenant waives the provisions of California Civil Code Procedure Section 1265.130 allowing Tenant to petition the superior court to terminate this Lease as a result of a partial taking. Notwithstanding anything herein to the contrary, however, a regulatory action, ordinance or applicable Laws limiting or temporarily prohibiting Tenant’s right to enter or use the Premises or the Building shall not be construed as a Taking or appropriation hereunder and Tenant shall have no right to rent abatement as a result thereof.
15.1 Repair Estimate. If the Premises or the Project are damaged by fire or other casualty (a “Casualty”), Landlord shall, within 90 days after such Casualty, deliver to Tenant a good faith estimate (the “Damage Notice”) of the time needed to repair the damage caused by such Casualty.
15.2 Tenant’s Rights. If the Premises are damaged by Casualty such that Tenant is prevented from conducting its business in the Premises in a manner reasonably comparable to that conducted immediately before such Casualty and Landlord estimates that the damage caused thereby for which Landlord is responsible to repair under this Lease pursuant to Section 15.4 below cannot be repaired within 270 days after the commencement of repairs (the “Repair Period”), then Tenant may terminate this Lease by delivering written notice to Landlord of its election to terminate within 30 days after the Damage Notice has been delivered to Tenant.
15.3 Landlord’s Rights. If a Casualty occurs and (a) Landlord estimates that the damage cannot be repaired within the Repair Period, (b) the damage exceeds 50% of the replacement cost thereof (excluding foundations and footings), as estimated by Landlord, and such damage occurs during the last two years of the Term, (c) regardless of the extent of damage, the damage is not fully covered by Landlord’s insurance policies or Landlord makes a good faith determination that restoring the damage would be uneconomical, or (d) Landlord is required to pay any insurance proceeds arising out of the Casualty to a Landlord’s Mortgagee, then, in the event of any of the foregoing, Landlord may terminate this Lease by giving written notice of its election to terminate within 30 days after the Damage Notice has been delivered to Tenant.
15.4 Repair Obligation. If neither party elects to terminate this Lease following a Casualty, then Landlord shall, within a reasonable time after such Casualty, begin to repair the Premises and shall proceed with reasonable diligence to restore the Premises to substantially the same condition as they existed immediately before such Casualty; however, Landlord shall not be required to repair or replace any improvements, alterations or betterments within the Premises (which shall be promptly and with due diligence repaired and restored by Tenant at Tenant’s sole cost and expense) or any furniture, equipment, trade fixtures or personal property of Tenant or others in the Premises or the Project, and Landlord’s obligation to repair or restore the Premises shall be limited to the extent of the insurance proceeds actually received by Landlord for the Casualty in question. If this Lease is terminated under the provisions of this Section 15, Landlord shall be entitled to the full proceeds of the insurance policies providing coverage for all alterations, improvements and betterments in the Premises (and, if Tenant has failed to maintain insurance on such items as required by this Lease, Tenant shall pay Landlord an amount equal to the proceeds Landlord would have received had Tenant maintained insurance on such items as required by this Lease).
15.5 Abatement of Rent. If the Premises are damaged by Casualty, Basic Rent and Additional Rent for the portion of the Premises rendered untenantable by the damage shall be abated on a reasonable basis from the date of damage until the earlier of (a) completion of Landlord’s repairs, (b) the date upon which completion of Landlord’s repairs would have occurred but for delays caused by Tenant Parties, or (c) the date of termination of this Lease by Landlord or Tenant as provided above, as the case may be, unless a Tenant Party caused such damage, in which case, Tenant shall continue to pay Basic Rent and Additional Rent without abatement (and in such event Tenant shall be liable to Landlord for the cost and expense of the repair and restoration of the Building or Project caused thereby to the extent such cost and expense is not covered by insurance proceeds).
15.6 Waiver. Tenant hereby waives any and all rights under and benefits of Sections 1932(2) and 1933(4) of the California Civil Code, or any similar or successor law, statute or ordinance now or hereinafter in effect.
16. Personal Property Taxes. Tenant shall be liable for, and shall pay prior to delinquency, all taxes levied or assessed against personal property, furniture, fixtures, betterments, improvements, and alterations placed by any Tenant Party in the Premises or in or on the Building or Project. If any taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and Landlord elects to pay the same, or if the assessed value of Landlord’s property is increased by inclusion of such personal property, furniture, fixtures, betterments, improvements, and alterations and Landlord elects to pay the taxes based on such increase, then Tenant shall pay to Landlord, within 30 days following written request therefor, the part of such taxes for which Tenant is primarily liable hereunder; however, Landlord shall not pay such amount if Tenant notifies Landlord that it will contest the validity or amount of such taxes before Landlord makes such payment, and thereafter diligently proceeds with such contest in accordance with Law and if the non-payment thereof does not pose a threat of loss or seizure of the Project or interest of Landlord therein or impose any fee or penalty against Landlord.
17. Events of Default. Each of the following occurrences shall be an “Event of Default”:
17.1 Payment Default. Tenant’s failure to pay Rent within three days after Landlord has delivered written notice to Tenant that the same is due; however, an Event of Default shall occur hereunder without any obligation of Landlord to give any notice if Tenant fails to pay Rent when due and, during the 12 month interval preceding such failure, Landlord has given Tenant written notice of failure to pay Rent on one or more occasions;
17.2 Abandonment. Tenant (a) abandons or vacates the Premises or any substantial portion thereof or (b) fails to continuously operate its business in the Premises. Tenant waives any right to notice Tenant may have under Section 1951.3 of the Civil Code of the State of California, the terms of this Section 17.2 being deemed such notice to Tenant as required by said Section 1951.3;
17.3 Estoppel; Subordination; Financial Reports. Tenant fails to provide any estoppel certificate, documentation regarding the subordination of this Lease or financial reports after Landlord’s written request therefor pursuant to Section 25.5, Section 12.1, and Section 25.19 respectively, and such failure shall continue for five days after Landlord’s written notice thereof to Tenant;
17.4 Insurance. Tenant fails to procure, maintain and deliver to Landlord evidence of the insurance policies and coverages as required under Section 11.1;
17.5 Mechanic’s Liens. Tenant fails to pay and release of record, or diligently contest and bond around, any mechanic’s or construction lien filed against the Premises or the Project for any work performed, materials furnished, or obligation incurred by or at the request of a Tenant Party, within the time and in the manner required by Section 8.4;
17.6 Other Defaults. Tenant’s failure to perform, comply with, or observe any agreement or obligation of Tenant under this Lease other than provided in this Section 17 and the continuance of such failure for a period of more than thirty (30) days after Landlord has delivered to Tenant written notice thereof; provided, however, that if the nature of Tenant’s default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall commence such cure as soon as reasonably possible, but in any event within said thirty (30) day period, and thereafter Tenant shall diligently prosecute such cure to completion (provided that completion shall be achieved within sixty (60) days); and
17.7 Insolvency. The filing of a petition by or against Tenant (the term “Tenant” shall include, for the purpose of this Section 17.7, any guarantor of Tenant’s obligations hereunder) (a) in any bankruptcy or other insolvency proceeding; (b) seeking any relief under any state or federal debtor relief law; (c) for the appointment of a liquidator or receiver for all or substantially all of Tenant’s property or for Tenant’s interest in this Lease; (d) for the reorganization or modification of Tenant’s capital structure; or (e) in any assignment for the benefit of creditors proceeding; however, if such a petition is filed against Tenant, then such filing shall not be an Event of Default unless Tenant fails to have the proceedings initiated by such petition dismissed within 90 days after the filing thereof.
18. Remedies. Upon any Event of Default, Landlord may, in addition to all other rights and remedies afforded Landlord hereunder or by law or equity, take any one or more of the following actions:
18.1 Termination of Lease. Terminate this Lease and Tenant’s right to possession of the Premises provided by Section 1951.2 of the Civil Code of the State of California, or any successor code sections. Upon such termination, in addition to any other rights and remedies to which Landlord may be entitled under applicable law or at equity, Landlord shall be entitled to recover from Tenant: (1) the worth at the time of award of the unpaid Rent and other amounts which had been earned at the time of termination, (2) the worth at the time of award of the amount by which the unpaid Rent and other amounts that would have been earned after the date of termination until the time of award exceeds the amount of such Rent loss that Tenant proves could have been reasonably avoided; (3) the worth at the time of award of the amount by which the unpaid Rent and other amounts for the balance of the Term after the time of award exceeds the amount of such Rent loss that the Tenant proves could be reasonably avoided; (4) any other amount and court costs necessary to compensate Landlord for all detriment proximately caused by Tenant’s failure to perform Tenant’s obligations under this Lease or which, in the ordinary course of things, would be likely to result therefrom; and (5) any such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time under applicable Law. The “worth at the time of award” as used in (1) and (2) above shall be computed at the Default Rate (defined in Section 5 above). The “worth at the time of award” as used in (3) above shall be computed by discounting such amount at the Federal Discount Rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). If this Lease provides for any periods during the Term during which Tenant is not required to pay Basic Rent or if Tenant otherwise receives a Rent concession, then upon the occurrence of an Event of Default, Tenant shall owe to Landlord the full amount of such Basic Rent or value of such Rent concession, plus interest at the Default Rate, calculated from the date that such Basic Rent or Rent concession would have been payable;
18.2 Termination of Possession. Landlord shall have the remedy described in California Civil Code Section 1951.4 (“Landlord may continue this Lease in effect after Tenant’s breach and abandonment and recover Rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations”), or any successor code section. Accordingly, Landlord has the right to terminate Tenant’s right to possess the Premises without terminating this Lease by giving written notice thereof to Tenant, in which event Tenant shall pay to Landlord (a) all Rent and other amounts accrued hereunder to the date of termination of possession, (b) all amounts due from time to time under Section 19.1, and (c) all Rent and other net sums required hereunder to be paid by Tenant during the remainder of the Term, diminished by any net sums thereafter received by Landlord through reletting the Premises during such period, after deducting all costs incurred by Landlord in reletting the Premises. If Landlord elects to terminate Tenant’s right to possession without terminating this Lease, and to retake possession of the Premises (and Landlord shall have no duty to make such election), Landlord shall use reasonable efforts to relet the Premises as further described in Section 19.4 below. Landlord shall not be liable for, nor shall Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the Premises or to collect rent due for such reletting.Tenant shall not be entitled to the excess of any consideration obtained by reletting over the Rent due hereunder. Reentry by Landlord in the Premises shall not affect Tenant’s obligations hereunder for the unexpired Term; rather, Landlord may, from time to time, bring an action against Tenant to collect amounts due by Tenant, without the necessity of Landlord’s waiting until the expiration of the Term. Unless Landlord delivers written notice to Tenant expressly stating that it has elected to terminate this Lease, all actions taken by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to be taken under this Section 18.2. If Landlord elects to proceed under this Section 18.2, it may at any time elect to terminate this Lease under Section 18.1;
18.3 Perform Acts on Behalf of Tenant. Perform any act Tenant is obligated to perform under the terms of this Lease (and may immediately enter upon the Premises in connection therewith if necessary) in Tenant’s name and on Tenant’s behalf, without being liable for any claim for damages therefor, and Tenant shall reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant’s obligations under this Lease (including, but not limited to, collection costs and legal expenses), plus interest thereon at the Default Rate;
18.6 Replacement of Statutory Notice Requirements. When this Lease requires service of a notice, that notice shall replace rather than supplement any equivalent or similar statutory notice, including any notice required by California Code of Civil Procedure Section 1161 or any similar or successor statute. When a statute requires service of a notice in a particular manner, service of that notice (or a similar notice required by this Lease) in the manner required by this Section 18.6 shall replace and satisfy the statutory service-of-notice procedures, including those required by California Code of Civil Procedure Section 1162 or any similar or successor statute.
18.7 California Waivers. TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c) AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT’S BREACH.
19. Payment by Tenant; Non-Waiver; Cumulative Remedies; Mitigation of Damage.
19.1 Payment by Tenant. Upon any Event of Default, Tenant shall pay to Landlord all amounts, costs, losses and/or expenses incurred, abated or foregone by Landlord (including court costs and reasonable attorneys’ fees and expenses) in (a) obtaining possession of the Premises, (b) removing, storing and/or disposing of Tenant’s or any other occupant’s property, (c) repairing, restoring, altering, remodeling, or otherwise putting the Premises into the condition acceptable to a new tenant, (d) if Tenant is dispossessed of the Premises and this Lease is not terminated, reletting all or any part of the Premises (including brokerage commissions, cost of tenant finish work, and other costs incidental to such reletting), (e) performing Tenant’s obligations under this Lease which Tenant failed to perform, (f) enforcing, or advising Landlord of, its rights, remedies, and recourses arising out of the default, and (g) securing this Lease, including all commissions, allowances, reasonable attorneys’ fees, and if this Lease or any amendment hereto contains any abated Rent granted by Landlord as an inducement or concession to secure this Lease or amendment hereto, the full amount of all Rent so abated (and such abated amounts shall be payable immediately by Tenant to Landlord, without any obligation by Landlord to provide written notice thereof to Tenant, and Tenant’s right to any abated rent accruing following such Event of Default shall immediately terminate).
19.2 No Waiver. Landlord’s acceptance of Rent following an Event of Default shall not waive Landlord’s rights regarding such Event of Default. No waiver by Landlord of any violation or breach of any of the terms contained herein shall waive Landlord’s rights regarding any future violation of such term. Landlord’s acceptance of any partial payment of Rent shall not waive Landlord’s rights with regard to the remaining portion of the Rent that is due, regardless of any endorsement or other statement on any instrument delivered in payment of Rent or any writing delivered in connection therewith; accordingly, Landlord’s acceptance of a partial payment of Rent shall not constitute an accord and satisfaction of the full amount of the Rent that is due.
19.3 Cumulative Remedies. Any and all remedies set forth in this Lease: (a) shall be in addition to any and all other remedies Landlord may have at law or in equity, (b) shall be cumulative, and (c) may be pursued successively or concurrently as Landlord may elect. The exercise of any remedy by Landlord shall not be deemed an election of remedies or preclude Landlord from exercising any other remedies in the future. Additionally, Tenant shall defend, indemnify and hold harmless Landlord, Landlord’s Mortgagee and their respective representatives and agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages and expenses (including reasonable attorneys’ fees) arising from Tenant’s failure to perform its obligations under this Lease.
19.4 Mitigation of Damage. The parties agree any duty imposed by Law on Landlord to mitigate damages after a default by Tenant under this Lease shall be satisfied in full if Landlord uses reasonable efforts to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with the following criteria: (a) Landlord shall have no obligation to solicit or entertain negotiations with any Substitute Tenant for the Premises until 30 days following the date upon which Landlord obtains full and complete possession of the Premises, including the relinquishment by Tenant of any claim to possession of the Premises by written notice from Tenant to Landlord; (b) Landlord shall not be obligated to lease or show the Premises on a priority basis or offer the Premises to any prospective tenant when other space in the Project is or soon will be available; (c) Landlord shall not be obligated to lease the Premises to a Substitute Tenant for less than the current fair market value of the Premises, as determined by Landlord in its sole discretion, nor will Landlord be obligated to enter into a new lease for the Premises under other terms and conditions that are unacceptable to Landlord under Landlord’s then-current leasing policies; (d) Landlord shall not be obligated to enter into a lease with a Substitute Tenant: (1) whose use would violate any restriction, covenant or requirement contained in the lease of another tenant in the Project; (2) whose use would adversely affect the reputation of the Project; (3) whose use would require any addition to or modification of the Premises or Project in order to comply with applicable Law, including building codes; (4) whose Tangible Net Worth is less than Tenant’s Tangible Net Worth as of the Lease Date or who does not have, in Landlord’s sole opinion, the creditworthiness to be an acceptable tenant; (5) that is a governmental entity, or quasi-governmental entity, or subdivision or agency thereof, or any other entity entitled to the defense of sovereign immunity or is otherwise prohibited by Section 9 of the Lease; (6) that does not meet Landlord’s reasonable standards for tenants of the Project or is otherwise incompatible with the character of the occupancy of the Project, as reasonably determined by Landlord; (7) whose use does not comply with the Permitted Use; (8) whose use or occupancy would result in an increase in the insurance premiums for the Project; or (9) whose use would result in utilization of more parking spaces on the Project in excess of the number previously utilized by Tenant; and (e) Landlord shall not be required to expend any amount of money to alter, remodel or otherwise make the Premises suitable for use by a Substitute Tenant unless: (1) Tenant pays any such amount to Landlord prior to Landlord’s execution of a lease with such Substitute Tenant (which payment shall not relieve Tenant of any amount it owes Landlord as a result of Tenant’s default under this Lease); or (2) Landlord, in Landlord’s sole discretion, determines any such expenditure is financially prudent in connection with entering into a lease with the Substitute Tenant.
20. Landlord’s Lien. In addition to any statutory landlord’s lien, now or hereafter enacted, Tenant grants to Landlord, to secure performance of Tenant’s obligations hereunder, a security interest in all of the property situated in or upon, or used in connection with, the Premises or the Project, and all proceeds thereof (except merchandise sold in the ordinary course of business) (collectively, the “Collateral”), and the Collateral shall not be removed from the Premises or the Project without the prior written consent of Landlord until all obligations of Tenant have been fully performed. The Collateral includes specifically all furniture and all trade and other fixtures, and inventory, equipment, contract rights, accounts receivable and the proceeds thereof. For the purposes of this Section 20, there shall be a rebuttable presumption that all property located in the Premises is owned by Tenant. Upon the occurrence of a breach or default by Tenant, Landlord may, in addition to all other remedies, without notice or demand except as provided below, exercise the rights afforded to a secured party under the Uniform Commercial Code of the state in which the Premises are located (the “UCC”). To the extent the UCC requires Landlord to give to Tenant notice of any act or event and such notice cannot be validly waived before a default occurs, then five-days’ prior written notice thereof shall be reasonable notice of the act or event. In order to perfect such security interest, Landlord may file any financing statement or other instrument necessary at Tenant’s expense at the state and county Uniform Commercial Code filing offices. Notwithstanding the foregoing, if, during the Term, Landlord, in Landlord’s sole discretion, agrees to subordinate or waive any statutory lien Landlord may have on any of Tenant’s equipment, trade fixtures, furniture and other personal property located at the Premises to any lien granted by Tenant in the same, any such subordination agreement or waiver shall be on Landlord’s standard form of agreement, and Tenant shall be responsible for reimbursing Landlord for any and all reasonable attorneys’ fees incurred by Landlord in connection with such agreement. Such amount shall be due and payable upon Landlord’s written demand therefor.
21. Surrender of Premises. No act by Landlord shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid unless it is in writing and signed by Landlord. At the expiration or termination of this Lease or Tenant’s right to possess the Premises, Tenant shall (a) deliver to Landlord the Premises broom-clean with all improvements located therein in good repair and condition (except for condemnation and Casualty damage not caused by Tenant, as to which Sections 14 and 15 shall control), free of any liens or encumbrances and free of Hazardous Materials placed on the Premises during the Term; (b) deliver to Landlord all keys to the Premises and all access cards to the Project (and shall reimburse Landlord for the then-current replacement cost charged by Landlord for all such keys and access cards that are not returned); (c) remove all trade fixtures, furniture (including demountable walls), and personal property placed in the Premises or elsewhere in the Project by a Tenant Party and equipment located in the Premises (but Tenant may not remove any such item which was paid for, in whole or in part, by Landlord unless Landlord requires such removal); (d) remove any and all cabling (including conduit) installed in the Premises or elsewhere in the Project by or on behalf of a Tenant Party, including all connections for such cabling, at Tenant’s sole cost or, if Landlord so elects, Landlord may perform such removal at Tenant’s sole cost, with the cost thereof to be paid to Landlord as Rent (Landlord will have the right, however, upon notice to Tenant, given prior to the expiration or earlier termination of the Term, to require Tenant to abandon and leave in place, without additional payment to Tenant or credit against Rent, any and all such cabling [including conduit], whether located in the Premises or elsewhere in the Project, and if Landlord so elects, Tenant covenants that such cabling shall be left in a neat and safe condition in accordance with the requirements of all applicable Laws, including the National Electric Code or any successor statute, and shall be terminated at both ends of a connector, properly labeled at each end and in each electrical closet and junction box); and (e) unless otherwise notified in writing by Landlord, remove alterations, additions, improvements, and Tenant’s Off-Premises Equipment and restore the Premises, Building and/or Project, as applicable, to an good condition and in any event no less than their conditions existing immediately prior to the installation of such alterations, additions, improvements, and Tenant’s Off-Premises Equipment; however, Tenant shall not remove any addition or improvement to the Premises or the Project if Landlord has specifically agreed in writing that the improvement or addition in question shall not be removed. Tenant shall repair all damage caused by the removal of the items described above. If Tenant fails to remove any property, including any of the property described above, Landlord may, at Landlord’s option, (1) deem such items to have been abandoned by Tenant, the title thereof shall immediately pass to Landlord at no cost to Landlord, and such items may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant and without any obligation to account for such items; any such disposition shall not be considered a strict foreclosure or other exercise of Landlord’s rights in respect of the security interest granted hereunder or otherwise, (2) remove such items, perform any work required to be performed by Tenant hereunder, and repair all damage caused by such work, and Tenant shall reimburse Landlord on demand for any expenses which Landlord may incur in effecting compliance with Tenant’s obligations hereunder (including collection costs and attorneys’ fees), plus interest thereon at the Default Rate, or (3) elect any of the actions described in clauses (1) and (2) above as Landlord may elect in its sole discretion. Tenant shall give written notice to Landlord at least thirty (30) days prior to vacating the Premises and shall meet with Landlord for a joint inspection of the Premises at the time of vacating, but nothing contained herein shall be construed as an extension of the Term or as a consent by Landlord to any holding over by Tenant. In the event of Tenant’s failure to give such notice or participate in such joint inspection, Landlord’s inspection at or after Tenant’s vacating the Premises shall conclusively be deemed correct for purposes of determining Tenant’s responsibility for repairs and restoration. Any delay caused by Tenant’s failure to carry out its obligations under this Section 21 beyond the Term hereof, shall constitute unlawful and illegal possession of Premises under this Lease. The provisions of this Section 21 shall survive the end of the Term.
22. Holding Over. If Tenant fails to vacate the Premises at the end of the Term, then Tenant shall be a tenant at sufferance whether or not Landlord accepts any rent from Tenant or any other person while Tenant remains in possession of the Premises following the expiration or earlier termination of the Term. If Tenant shall retain possession of the Premises or any portion thereof without Landlord’s consent following the expiration of this Lease or sooner termination for any reason, then in addition to all other damages and remedies to which Landlord may be entitled for such holding over, (a) Tenant shall pay 150% of the Rent payable during the last month of the Term, and (b) Tenant shall otherwise continue to be subject to all of Tenant’s obligations under this Lease. The provisions of this Section 22 shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at law. In addition to the payment of the amounts provided above, if Tenant fails to vacate the Premises within fifteen (15) days after Landlord notifies Tenant that Landlord has entered into a lease for the Premises or has received a bona fide offer to lease the Premises, and that Landlord will be unable to deliver possession, or perform improvements, due to Tenant’s holdover, then Tenant shall be liable to Landlord for all damages, including, without limitation, consequential damages, that Landlord suffers from the holdover. The provisions of this Section 22 shall survive any expiration or earlier termination of this Lease.
23. Certain Rights Reserved by Landlord. Landlord shall have the following rights so long as such rights do not unreasonably interfere with Tenant’s use and enjoyment of the Premises for the Permitted Use:
23.1 Building Operations. To decorate and to make inspections, repairs, alterations, additions, changes, or improvements, whether structural or otherwise, in and about the Project, or any part thereof; to enter upon the Premises (after giving Tenant reasonable notice thereof, which may be verbal notice, except in cases of real or apparent emergency, in which case no notice shall be required) and, during the continuance of any such work, to temporarily close doors, entryways, public space, and corridors in the Building; to interrupt or temporarily suspend Building services and facilities; to change the name of the Building; and to change the arrangement and location of entrances or passageways, doors, and doorways, corridors, elevators, stairs, restrooms, or other public parts of the Building;
23.2 Security. To take such reasonable measures as Landlord deems advisable for the security of the Building and its occupants; evacuating the Building for cause, suspected cause, or for drill purposes; temporarily denying access to the Building (Tenant acknowledges and agrees that it shall be responsible for providing adequate security for its use of the Premises, the Building and the Project and that Landlord shall have no obligation or liability with respect thereto, except to the extent if any that Landlord has specifically agreed elsewhere in this Lease to provide the same);
23.3 Prospective Purchasers and Lenders. Upon reasonable prior notice at least 24 hours (which notice may be verbal) to Tenant, to enter the Premises at all reasonable hours to show the Premises to prospective partners, investors, purchasers or lenders; and
23.4 Prospective Tenants. At any time during the last 12 months of the Term (or earlier if Tenant has notified Landlord in writing that it does not desire to extend the Term) upon reasonable prior notice at least 24 hours (which notice may be verbal) to Tenant, or at any time following the occurrence of an Event of Default, to enter the Premises at all reasonable hours to show the Premises to prospective tenants.
In exercising the foregoing rights in this Section 23, Landlord shall use commercially reasonable efforts to minimize any interference with Tenant’s occupancy of the Premises.
25.1 Landlord Transfer. Landlord may transfer any portion of the Project and any of its rights under this Lease. If Landlord assigns its rights under this Lease, then Landlord shall thereby be released from any further obligations hereunder arising after the date of transfer, provided that the assignee assumes in writing Landlord’s obligations hereunder arising from and after the transfer date.
25.2 Landlord’s Liability. The liability of Landlord (and its successors, partners, shareholders or members) to Tenant (or any person or entity claiming by, through or under Tenant) for any default by Landlord under the terms of this Lease or any matter relating to or arising out of the occupancy or use of the Premises and/or other areas of the Building, Project or any related complex shall be limited to Tenant’s actual direct, but not consequential, damages therefor and shall be recoverable only from the amount which is equal to the interest of Landlord in the Building. Further, Landlord (Landlord’s successors, partners, shareholders or members) shall not be personally liable for any deficiency. The provisions of this Section shall survive any expiration or termination of this Lease. Landlord and its agents, employees and contractors shall not be liable for, and Tenant hereby waives all claims against such parties for losses resulting from an interruption of Tenant’s business, or any person claiming through Tenant, resulting from any accident or occurrence in or upon the Premises or the Project from any cause whatsoever, including without limitation, damage caused in whole or in part, directly or indirectly, by the negligence of Landlord or its agents, employees or contractors. At any time when there is outstanding a mortgage, deed of trust or similar security instrument covering Landlord’s interest in the Premises, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or similar security instrument shall have received written notice of such default and a reasonable time for curing such default shall thereafter have elapsed.
25.3 Force Majeure. Time is of the essence with respect to all provisions of this Lease, except that whenever a period of time is herein prescribed for action to be taken by Landlord or Tenant, Landlord or Tenant, as applicable shall not be liable or responsible for and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, pandemics, shortages of labor or materials, war, governmental laws, regulations or restrictions or any other cause of any kind whatsoever which are beyond the reasonable control of Landlord or Tenant, as applicable (each a “Force Majeure Event”). The provisions of this Section shall not operate to excuse Tenant from prompt payment of Rent or any other payments required by the terms of this Lease and shall not extend the Term. Delays or failures to perform resulting from lack of funds shall not be deemed a Force Majeure Event.
25.4 Brokerage. Neither Landlord nor Tenant has dealt with any broker or agent in connection with the negotiation or execution of this Lease, other than the Broker(s), if any, set forth in the basic Lease Information, whose commissions shall be paid pursuant to separate written agreement(s). Tenant and Landlord shall each indemnify the other against all costs, expenses, attorneys’ fees, liens and other liability for commissions or other compensation claimed by any other broker or agent claiming the same by, through or under the indemnifying party.
25.5 Estoppel Certificates. From time to time, Tenant shall furnish to any party designated by Landlord, within ten (10) business days after Landlord has made a request therefor, a certificate signed by Tenant confirming and containing such factual certifications and representations as to this Lease as Landlord may reasonably request. Unless otherwise required by Landlord’s Mortgagee or a prospective purchaser or mortgagee of the Project, the initial form of estoppel certificate to be signed by Tenant is attached hereto as Exhibit E. If Tenant does not deliver to Landlord the certificate signed by Tenant within such required time period, such failure shall constitute an Event of Default by Tenant without notice and opportunity to cure and Landlord, Landlord’s Mortgagee and any prospective purchaser or mortgagee, may conclusively presume and rely upon the following facts: (a) this Lease is in full force and effect; (b) the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (c) not more than one monthly installment of Basic Rent and other charges have been paid in advance; (d) there are no claims against Landlord nor any defenses or rights of offset against collection of Rent or other charges; and (e) Landlord is not in default under this Lease. In such event, Tenant shall be estopped from denying the truth of the presumed facts.
25.6 Notices. All notices and other communications given pursuant to this Lease shall be in writing and shall be (a) mailed by first class, United States Mail, postage prepaid, certified, with return receipt requested, and addressed to the parties hereto at the address specified in the Basic Lease Information, (b) hand-delivered to the intended addressee, or (c) sent by a nationally recognized overnight courier service. The parties hereto may change their addresses by giving notice thereof to the other in conformity with this provision.
25.7 Severability. If any clause or provision of this Lease is illegal, invalid, or unenforceable under present or future laws, then the remainder of this Lease shall not be affected thereby and in lieu of such clause or provision, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable.
25.8 Amendments; Binding Effect; No Electronic Records. This Lease may not be amended except by instrument in writing signed by Landlord and Tenant. No provision of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord, and no custom or practice which may evolve between the parties in the administration of the terms hereof shall waive or diminish the right of Landlord to insist upon the performance by Tenant in strict accordance with the terms hereof. Landlord and Tenant hereby agree not to conduct the transactions or communications contemplated by this Lease by electronic means, except by electronic signatures as specifically set forth in Section 25.9; nor shall the use of the phrase “in writing” or the word “written” be construed to include electronic communications except by electronic signatures as specifically set forth in Section 25.9. The terms and conditions contained in this Lease shall inure to the benefit of and be binding upon the parties hereto, and upon their respective successors in interest and legal representatives, except as otherwise herein expressly provided. This Lease is for the sole benefit of Landlord and Tenant, and, other than Landlord’s Mortgagee, no third party shall be deemed a third party beneficiary hereof.
25.9 Counterparts; Electronic Signatures. This Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Lease. Execution copies of this Lease may be delivered by facsimile or email, and the parties hereto agree to accept and be bound by facsimile signatures or scanned signatures transmitted via email hereto, which signatures shall be considered as original signatures with the transmitted Lease having the same binding effect as an original signature on an original Lease. At the request of either party, any facsimile document or scanned document transmitted via email is to be re-executed in original form by the party who executed the original facsimile document or scanned document. Neither party may raise the use of a facsimile machine or scanned document or the fact that any signature was transmitted through the use of a facsimile machine or email as a defense to the enforcement of this Lease. In addition, the parties agree that this Lease may be signed using electronic signature technology (e.g., via Docusign or similar electronic signature technology), and that such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s hand-written signature. The parties further consent and agree that (1) to the extent a party signs this document using electronic signature technology, by clicking “sign”, such party is signing this Lease electronically, and (2) the electronic signatures appearing on this Lease shall be treated, for purposes of validity, enforceability and admissibility, the same as hand written signatures
25.10 Quiet Enjoyment. Provided Tenant has performed all of its obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term, without hindrance from Landlord or any party claiming by, through or under Landlord, but not otherwise, subject to the terms and conditions of this Lease and all matters of record as of the date of this Lease which are applicable to the Premises. Landlord shall not be liable for any hindrance, interruption, interference or disturbance by other tenants or third persons, nor shall Tenant be released from any obligations under this Lease because of such hindrance, interruption, interference or disturbance.
25.11 No Merger. There shall be no merger of the leasehold estate hereby created with the fee estate in the Premises or any part thereof if the same person acquires or holds, directly or indirectly, this Lease or any interest in this Lease and the fee estate in the leasehold Premises or any interest in such fee estate.
25.12 No Offer. The submission of this Lease to Tenant shall not be construed as an offer, and Tenant shall not have any rights under this Lease unless Landlord executes a copy of this Lease and delivers it to Tenant.
25.13 Entire Agreement. This Lease constitutes the entire agreement between Landlord and Tenant regarding the subject matter hereof and supersedes all verbal statements and prior writings relating thereto. Except for those set forth in this Lease, no representations, warranties, or agreements have been made by Landlord or Tenant to the other with respect to this Lease or the obligations of Landlord or Tenant in connection therewith. Except as otherwise provided herein, no subsequent alteration, amendment, change or addition to this Lease shall be binding unless in writing and signed by Landlord and Tenant. The normal rule of construction that any ambiguities be resolved against the drafting party shall not apply to the interpretation of this Lease or any exhibits or amendments hereto.
25.14 Waivers. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TENANT (ON BEHALF OF ITSELF AND ITS RESPECTIVE SUCCESSORS, ASSIGNS AND SUBTENANTS) AND LANDLORD EACH, AFTER CONSULTATION WITH COUNSEL, KNOWINGLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE ARISING OUT OF OR WITH RESPECT TO THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. Tenant hereby waives and agrees not to pursue or claim any excuse or offset to Tenant’s obligations under this Lease based on the doctrines of impossibility, impracticality, frustration of contract, frustration of purpose, or other similar legal principles. IF THE JURY WAIVER PROVISIONS OF THIS SECTION 25.14 ARE NOT ENFORCEABLE UNDER CALIFORNIA LAW, THEN THE FOLLOWING PROVISIONS SHALL APPLY. IT IS THE DESIRE AND INTENTION OF THE PARTIES TO AGREE UPON A MECHANISM AND PROCEDURE UNDER WHICH CONTROVERSIES AND DISPUTES ARISING OUT OF THIS LEASE OR RELATED TO THE PREMISES WILL BE RESOLVED IN A PROMPT AND EXPEDITIOUS MANNER. ACCORDINGLY, EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER OR WITH RESPECT TO THE PREJUDGMENT REMEDY OF ATTACHMENT, ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBSIDIARIES OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, SHALL BE HEARD AND RESOLVED BY A REFEREE UNDER THE PROVISIONS OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, SECTIONS 638 — 645.1, INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR STATUTE(S) THERETO) (THE “REFEREE SECTIONS”). ANY FEE TO INITIATE THE JUDICIAL REFERENCE PROCEEDINGS AND ALL FEES CHARGED AND COSTS INCURRED BY THE REFEREE SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE (EXCEPT THAT IF A REPORTER IS REQUESTED BY EITHER PARTY, THEN A REPORTER SHALL BE PRESENT AT ALL PROCEEDINGS WHERE REQUESTED AND THE FEES OF SUCH REPORTER – EXCEPT FOR COPIES ORDERED BY THE OTHER PARTIES – SHALL BE BORNE BY THE PARTY REQUESTING THE REPORTER); PROVIDED HOWEVER, THAT ALLOCATION OF THE COSTS AND FEES, INCLUDING ANY INITIATION FEE, OF SUCH PROCEEDING SHALL BE ULTIMATELY DETERMINED IN ACCORDANCE WITH THE ATTORNEYS’ FEES PROVISIONS OF THIS LEASE. THE VENUE OF THE PROCEEDINGS SHALL BE IN THE COUNTY IN WHICH THE PREMISES ARE LOCATED. WITHIN 10 DAYS OF RECEIPT BY ANY PARTY OF A WRITTEN REQUEST TO RESOLVE ANY DISPUTE OR CONTROVERSY PURSUANT TO THIS SECTION 25.14, THE PARTIES SHALL AGREE UPON A SINGLE REFEREE WHO SHALL TRY ALL ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE WITHIN SUCH 10 DAY PERIOD, THEN ANY PARTY MAY THEREAFTER FILE A LAWSUIT IN THE COUNTY IN WHICH THE PREMISES ARE LOCATED FOR THE PURPOSE OF APPOINTMENT OF A REFEREE UNDER THE REFEREE SECTIONS. IF THE REFEREE IS APPOINTED BY THE COURT, THE REFEREE SHALL BE A NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE IN THE RELEVANT MATTERS TO BE DETERMINED, FROM JAMS/ENDISPUTE, INC., THE AMERICAN ARBITRATION ASSOCIATION OR SIMILAR MEDIATION/ARBITRATION ENTITY. THE PROPOSED REFEREE MAY BE CHALLENGED BY ANY PARTY FOR ANY OF THE GROUNDS LISTED IN THE REFEREE SECTIONS. THE REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES OF FACT AND LAW AND REPORT HIS OR HER DECISION ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES AVAILABLE AT LAW OR IN EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE THE REFEREE, INCLUDING AN AWARD OF ATTORNEYS' FEES AND COSTS IN ACCORDANCE WITH THIS LEASE. THE REFEREE SHALL NOT, HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY THE EXPRESS PROVISIONS OF THIS LEASE, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE CALIFORNIA CODE OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY AND MAY ENFORCE ALL DISCOVERY ORDERS IN THE SAME MANNER AS ANY TRIAL COURT JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND ENFORCE SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE UNDER CALIFORNIA LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE RULES OF EVIDENCE), AND IN ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE TIME OF THE REFERENCE PROCEEDING. THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE WITH ONE ANOTHER AND THE REFEREE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS RESOLUTION OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS SECTION 25.14. IN THIS REGARD, THE PARTIES AGREE THAT THE PARTIES AND THE REFEREE SHALL USE BEST EFFORTS TO ENSURE THAT (A) DISCOVERY BE CONDUCTED FOR A PERIOD NO LONGER THAN 6 MONTHS FROM THE DATE THE REFEREE IS APPOINTED, EXCLUDING MOTIONS REGARDING DISCOVERY, AND (B) A TRIAL DATE BE SET WITHIN 9 MONTHS OF THE DATE THE REFEREE IS APPOINTED. IN ACCORDANCE WITH SECTION 644 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, THE DECISION OF THE REFEREE UPON THE WHOLE ISSUE MUST STAND AS THE DECISION OF THE COURT, AND UPON THE FILING OF THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE JUDGE IF THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN THE SAME MANNER AS IF THE ACTION HAD BEEN TRIED BY THE COURT. ANY DECISION OF THE REFEREE AND/OR JUDGMENT OR OTHER ORDER ENTERED THEREON SHALL BE APPEALABLE TO THE SAME EXTENT AND IN THE SAME MANNER THAT SUCH DECISION, JUDGMENT, OR ORDER WOULD BE APPEALABLE IF RENDERED BY A JUDGE OF THE SUPERIOR COURT IN WHICH VENUE IS PROPER HEREUNDER. THE REFEREE SHALL IN HIS/HER STATEMENT OF DECISION SET FORTH HIS/HER FINDINGS OF FACT AND CONCLUSIONS OF LAW. THE PARTIES INTEND THIS GENERAL REFERENCE AGREEMENT TO BE SPECIFICALLY ENFORCEABLE IN ACCORDANCE WITH THE CODE OF CIVIL PROCEDURE. NOTHING IN THIS SECTION 25.14 SHALL PREJUDICE THE RIGHT OF ANY PARTY TO OBTAIN PROVISIONAL RELIEF OR OTHER EQUITABLE REMEDIES FROM A COURT OF COMPETENT JURISDICTION AS SHALL OTHERWISE BE AVAILABLE UNDER THE CODE OF CIVIL PROCEDURE AND/OR APPLICABLE COURT RULES.
25.15 Governing Law; Jurisdiction. This Lease shall be governed by and construed in accordance with the laws of the state in which the Premises are located. The proper place of venue to enforce this Lease will be the county or district in which the Premises are located. In any legal proceeding regarding this Lease, including enforcement of any judgments, Tenant irrevocably and unconditionally (a) submits to the jurisdiction of the courts of law in the county or district in which the Premises are located; (b) accepts the venue of such courts and waives and agrees not to plead any objection thereto; and (c) agrees that (1) service of process may be effected at the address specified for Tenant in the Lease, or at such other address of which Landlord has been properly notified in writing, and (2) nothing herein will affect Landlord’s right to effect service of process in any other manner permitted by applicable law.
25.16 Recording. Tenant shall not record this Lease or any memorandum of this Lease without the prior written consent of Landlord, which consent may be withheld or denied in the sole and absolute discretion of Landlord, and any recordation by Tenant shall be a material breach of this Lease. Tenant grants to Landlord a power of attorney to execute and record a release releasing any such recorded instrument of record that was recorded without the prior written consent of Landlord, which power is coupled with an interest and is irrevocable.
25.17 Water or Mold Notification. To the extent Tenant or its agents or employees discover any water leakage, water damage or mold in or about the Premises or Project, Tenant shall promptly notify Landlord thereof in writing.
25.18 Joint and Several Liability. If Tenant consists of more than one party (or if Tenant permits any other party to occupy the Premises), each such party shall be jointly and severally liable for Tenant’s obligations under this Lease. All unperformed obligations of Tenant hereunder not fully performed at the end of the Term shall survive the end of the Term, including payment obligations with respect to Rent and all obligations concerning the condition and repair of the Premises.
25.19 Financial Reports. If Tenant is an entity that is domiciled in the United States of America, and whose securities are funded through a public securities exchange subject to regulation by the United States of America publicly traded over exchanges based in the United States and whose financial statements are readily available at no cost to Landlord, the terms of this Section 25.19 shall not apply. Otherwise, within 10 days after Landlord’s request, Tenant will furnish Tenant’s most recent audited financial statements (including any notes to them) to Landlord, or, if no such audited statements have been prepared, such other financial statements (and notes to them) as may have been prepared by an independent certified public accountant or, failing those, Tenant’s internally prepared financial statements. Tenant will discuss its financial statements with Landlord and, following the occurrence of an Event of Default hereunder, will give Landlord access to Tenant’s books and records in order to enable Landlord to verify the financial statements. Landlord will not disclose any aspect of Tenant’s financial statements that Tenant designates to Landlord as confidential except (a) to Landlord’s Mortgagee or prospective mortgagees or purchasers of the Building, (b) in litigation between Landlord and Tenant, and/or (c) if required by Law or court order. Tenant shall not be required to deliver the financial statements required under this Section 25.19 more than once in any 12-month period unless requested by Landlord’s Mortgagee, partner or investor or a prospective partner or investor, or buyer or lender of the Building or an Event of Default occurs.
25.21 Telecommunications. Tenant and its telecommunications companies, including local exchange telecommunications companies and alternative access vendor services companies, shall have no right of access to and within the Building, for the installation and operation of telecommunications systems, including voice, video, data, Internet, and any other services provided over wire, fiber optic, microwave, wireless, and any other transmission systems (“Telecommunications Services”), for part or all of Tenant’s telecommunications within the Building and from the Building to any other location unless Landlord has previously reviewed and approved all plans, specifications and contracts pertaining to telecommunication service entry points, and any documents to which Landlord is a party or which may encumber the Project, which consent will not be unreasonably withheld. All providers of Telecommunications Services shall be required to comply with the rules and regulations of the Project, applicable Laws and Landlord’s policies and practices for the Project, and shall be required, at Landlord’s election, to enter into a license agreement with Landlord to confirm and approve items such as, without limitation, the proposed location (and labeling requirements) of wiring, cabling, fiber lines, points of demarcation, entry into the Project, insurance requirements and the like, all at no cost to Landlord. Tenant acknowledges that Landlord shall not be required to provide or arrange for any Telecommunications Services and that Landlord shall have no liability to any Tenant Party in connection with the installation, operation or maintenance of Telecommunications Services or any equipment or facilities relating thereto. Tenant, at its cost and for its own account, shall be solely responsible for obtaining all Telecommunications Services.
25.22 Confidentiality. Tenant acknowledges that the terms and conditions of this Lease are to remain confidential for Landlord’s benefit, and may not be disclosed by Tenant to anyone, by any manner or means, directly or indirectly, without Landlord’s prior written consent; however, Tenant may disclose the terms and conditions of this Lease to its attorneys, accountants, employees and existing or prospective financial partners, or if required by Law or court order, provided all parties to whom Tenant is permitted hereunder to disclose such terms and conditions are advised by Tenant of the confidential nature of such terms and conditions and agree to maintain the confidentiality thereof (in each case, prior to disclosure). Tenant shall be liable for any unauthorized disclosures made in violation of this Section by Tenant or by any entity or individual to whom the terms of and conditions of this Lease were disclosed or made available by Tenant. The consent by Landlord to any disclosures shall not be deemed to be a waiver on the part of Landlord of any prohibition against any future disclosure.
25.23 Authority. Tenant (if a corporation, partnership or other business entity) hereby represents and warrants to Landlord that Tenant is and will remain during the Term a duly formed and existing entity qualified to do business in the state in which the Premises are located, that Tenant has full right and authority to execute and deliver this Lease, and that each person signing on behalf of Tenant is authorized to do so. Landlord hereby represents and warrants to Tenant that Landlord is a duly formed and existing entity qualified to do business in the state in which the Premises are located, that Landlord has full right and authority to execute and deliver this Lease, and that each person signing on behalf of Landlord is authorized to do so.
25.24 Hazardous Materials. The term “Hazardous Materials” means any hazardous, explosive, radioactive or toxic substance, material or waste which is or becomes regulated by any local, state or federal governmental authority or agency, including, without limitation, any material or substance which is (i) defined or listed as a “hazardous waste,” “extremely hazardous waste,” “restricted hazardous waste,” “hazardous substance,” “hazardous material,” “pollutant” or “contaminant” under any Law, (ii) petroleum or petroleum derivative, (iii) a flammable explosive, (iv) a radioactive material or waste, (v) a polychlorinated biphenyl, (vi) asbestos or asbestos containing material, (vii) infectious waste, or (viii) a carcinogen. No Tenant Party shall use, generate, store, manufacture, transport (collectively, “Handle”) or Release (defined below), or permit the use, generation, storage, manufacture, transport or Release of Hazardous Materials on or about the Premises or the Project without the prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. As used herein, “Release” means depositing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing. If any Tenant Party breaches its obligations under this Section Error! Reference source not found., Landlord may immediately take any and all action reasonably appropriate to remedy the same, including taking all appropriate action to clean up or remediate any contamination resulting from such Tenant Party’s use, generation, storage or disposal of Hazardous Materials. Tenant shall defend, indemnify, and hold harmless Landlord and its representatives and agents from and against any and all claims, demands, liabilities, causes of action, suits, judgments, damages and expenses (including reasonable attorneys’ fees and cost of clean up and remediation) arising from any Tenant Party’s failure to comply with the provisions of this Section Error! Reference source not found.. Landlord shall have the right at all reasonable times and if Landlord determines in good faith that Tenant may not be in compliance with this Section 25.24 to inspect the Premises and to conduct tests and investigations to determine whether Tenant is in compliance with the foregoing provisions, the costs of all such inspections, tests and investigations to be borne by Tenant. Neither the consent by Landlord to the use, generation, storage, release or disposal of Hazardous Materials nor the strict compliance by Tenant with all laws pertaining to Hazardous Materials shall excuse Tenant from Tenant’s obligation of indemnification pursuant to this Section 25.24. The indemnity contained in this Section 25.24 is intended to allocate responsibility between Landlord and Tenant under environmental Laws and shall survive termination or expiration of this Lease. Prior to Tenant (and at least five (5) days prior to any assignee or any subtenant of Tenant) taking possession of any part of the Premises, and on each anniversary of the Term Commencement Date (each such date is hereinafter referred to as a “Disclosure Date”), until and including the first Disclosure Date occurring after the expiration or sooner termination of this Lease, Tenant shall disclose to Landlord in writing the names and amounts of all Hazardous Materials, or any combination thereof, which were Handled on, in, under or about the Premises or Project for the twelve (12) month period prior to such Disclosure Date, or which Tenant intends to Handle on, under or about the Premises during the twelve (12) month period following the Disclosure Date by executing and delivering to Landlord a “Hazardous Materials Questionnaire”, in the form attached hereto as Exhibit H (as updated and modified by Landlord, from time to time). Tenant’s disclosure obligations under this Section 25.24 shall include a requirement that, to the extent any information contained in a Hazardous Materials Questionnaire previously delivered by Tenant shall become inaccurate in any material respect, Tenant shall immediately deliver to Landlord a new updated Hazardous Materials Questionnaire. If any Hazardous Materials shall be released into the environment comprising or surrounding the Project in connection with the acts, omissions or operations of Tenant or any Tenant Party, Tenant shall at its sole expense promptly prepare a remediation plan therefor consistent with applicable Laws and recommended industry practices (and approved by Landlord and all governmental agencies having jurisdiction) to fully remediate such release, and thereafter shall prosecute the remediation plan so approved to completion with all reasonable diligence and to the satisfaction of Landlord and applicable governmental agencies. If any Hazardous Materials are Handled in, under, on or about the Premises during the Term, or if Landlord determines in good faith that any release of any Hazardous Material or violation of Law may have occurred in, on, under or about the Premises during the Term, Landlord may require Tenant to at Tenant’s sole expense, (i) retain a qualified environmental consultant reasonably satisfactory to Landlord to conduct a reasonable investigation (an “Environmental Assessment”) of a nature and scope reasonably approved in writing in advance by Landlord with respect to the existence of any Hazardous Materials in, on, under or about the Premises and providing a review of all Hazardous Materials activities of Tenant and the Tenant Parties, and (ii) provide to Landlord a reasonably detailed, written report, prepared in accordance with the institutional real estate standards, of the Environmental Assessment.
25.25 List of Exhibits. All exhibits and attachments attached hereto are incorporated herein by this reference.
| Exhibit A - Outline of Premises |
| Exhibit B - Building Rules and Regulations |
| Exhibit C - Work Letter |
| Exhibit D - Form of Confirmation of Commencement Date Letter |
| Exhibit E - Form of Tenant Estoppel Certificate |
| Exhibit F - Parking |
| Exhibit G - Generator Area |
| Exhibit H - Hazardous Materials Questionnaire |
25.26 Prohibited Persons and Transactions. Tenant represents and warrants that neither Tenant nor any of its affiliates, nor any of their respective partners, members, shareholders or other equity owners, and none of their respective employees, officers, directors, representatives or agents is, nor will they become, a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Assets Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated Nationals and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action and is not and will not Transfer this Lease to, contract with or otherwise engage in any dealings or transactions or be otherwise associated with such persons or entities. If the foregoing representation is untrue at any time during the Term, an Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.
25.27 Common Area Amenities. In addition to the Premises, so long as Tenant leases from Landlord any portions of the Project, Tenant shall have a right to the nonexclusive use of the common areas of the Project that may be, from time to time, be designated by Landlord for the use, enjoyment and benefit of all tenants of the Project and their employees (collectively, the “Common Area Amenities”), it being expressly understood and agreed that Landlord shall not be obligated to provide any Common Area Amenities, unless otherwise specifically provided elsewhere in this Lease. From time to time, as each of the Common Area Amenities are made available to Tenant, if any, the number of rentable square feet in the Premises shall increase to reflect Tenant’s Proportionate Share of the rentable square feet attributable to the Common Area Amenities that are available at such time. As a condition to Tenant’s right to use any Common Area Amenities, Landlord may, at its discretion, require Tenant and its employees, officers, directors, and partners to execute certain other documents, including, without limitation, a license agreement and a waiver of claims and indemnity agreement, prior to granting such individuals access to certain of the Common Area Amenities. Landlord shall have the right to remove or alter the size and location of such Common Area Amenities and the type of equipment provided, and Tenant shall be responsible for the cost of any special services related to Tenant’s use of the Common Area Amenities. Tenant acknowledges and agrees that Tenant’s and any Tenant Party’s use of the Common Area Amenities is voluntary and, in consideration of the use of the Common Area Amenities, shall be undertaken by Tenant and such Tenant Party at its sole risk. Neither Landlord nor Landlord’s officers, directors, managers, servants, agents and/or employees (collectively, the “Released Parties”) shall be liable for any claims, demands, injuries, damages, actions or causes of action whatsoever arising out of or connected with Tenant’s and any Tenant Party’s use of the Common Area Amenities and their facilities and services. TENANT DOES HEREBY EXPRESSLY FOREVER WAIVE, RELEASE AND DISCHARGE THE RELEASED PARTIES FROM ANY AND ALL LIABILITY ARISING FROM ALL SUCH CLAIMS, DEMANDS, INJURIES, DAMAGES, ACTIONS AND/OR CAUSES OF ACTION, INCLUDING LIABILITY FROM ALL ACTS OF ACTIVE OR PASSIVE NEGLIGENCE, INCLUDING SOLE OR GROSS NEGLIGENCE, ON THE PART OF THE RELEASED PARTIES. The waivers contained in this Section 25.27 shall survive the expiration or earlier termination of this Lease.
25.28 UBTI. Landlord and Tenant agree that all Rent payable by Tenant to Landlord shall qualify as “rents from real property” within the meaning of both Sections 512(b)(3) and 856(d) of the Internal Revenue Code of 1986, as amended (the “Code”) and the U.S. Department of Treasury Regulations promulgated thereunder (the “Regulations”). In the event that Landlord, in its sole and absolute discretion, determines that there is any risk that all or part of any Rent shall not qualify as “rents from real property” for the purposes of Sections 512(b)(3) or 856(d) of the Code and the Regulations promulgated thereunder, Tenant agrees (a) to cooperate with Landlord by entering into such amendment or amendments as Landlord deems necessary to qualify all Rents as “rents from real property,” and (b) to permit an assignment of this Lease; provided, however, that any adjustments required pursuant to this Section 25.28 shall be made so as to produce the equivalent Rent (in economic terms) payable prior to such adjustment.
25.29 Cross Default. A default or event of default (beyond any applicable notice, grace and cure periods) under any other written agreement between Landlord or Landlord’s Affiliate and Tenant shall constitute an Event of Default under this Lease, and any Event of Default under this Lease shall constitute a default or event of default under such other written agreement between Landlord or Landlord’s Affiliate and Tenant (without any obligation to give Tenant any notice or opportunity to cure period thereunder).
25.30 Reserved Rights. This Lease does not grant any rights to light or air over or about the Project. Landlord excepts and reserves exclusively for itself the use of: (a) roofs, (b) telephone, electrical and janitorial closets, (c) equipment rooms, Building risers or similar areas that are used by Landlord for the provision of Building services, (d) rights to the land and improvements below the floor of the Premises, (e) the improvements and air rights above the ceiling of the Premises, (f) the improvements and air rights outside the demising walls of the Premises, (g) the areas within the Premises used for the installation of utility lines and other installations serving occupants of the Project, and (h) any other areas designated from time to time by Landlord as service areas of the Project. Tenant shall not have the right to install or operate any equipment producing radio frequencies, electrical or electromagnetic output or other signals, noise or emissions in or from the Project without the prior written consent of Landlord. To the extent permitted by applicable Law, Landlord reserves the right to restrict and control the use of such equipment.
25.31 No Construction Contract. Landlord and Tenant acknowledge and agree that this Lease, including all exhibits a part hereof, is not a construction contract or an agreement collateral to or affecting a construction contract.
| 26. | Other Provisions. |
26.1.1 Tenant shall not place, install, affix, paint or maintain any signs, notices, graphics or banners whatsoever or any window decor which is visible in or from public view or corridors, the common areas or the exterior of the Premises or the Building, in or on any exterior window or window fronting upon any common areas or service area without Landlord’s prior written approval which Landlord shall have the right to withhold in its absolute and sole discretion; provided that Tenant’s name shall be included in any Building-standard door and directory signage, if any, in accordance with Landlord’s Building signage program, including without limitation, payment by Tenant of any fee charged by Landlord for maintaining such signage, which fee shall constitute Additional Rent hereunder. Any installation of signs, notices, graphics or banners on or about the Premises or Project approved by Landlord shall be subject to any Laws and to any other requirements imposed by Landlord. Tenant, at its sole cost and expense, shall remove all such signs or graphics by the expiration or any earlier termination of this Lease. Such installations and removals shall be made in such manner as to avoid injury to or defacement of the Premises, Building or Project and any other improvements contained therein, and Tenant shall repair any injury or defacement including without limitation discoloration caused by such installation or removal.
26.2.1 Tenant, subject to Landlord’s review and approval of Tenant’s plans therefore, shall have the right to install a 500 kilowatt supplemental generator (the “Generator”) to provide emergency additional electrical capacity to the Premises during the Term. The Generator shall be placed at the first two (2) stalls nearest to the grade level door or another mutually agreed upon location and made a part hereof (the “Generator Area”). Notwithstanding the foregoing, Tenant’s right to install the Generator shall be subject to Landlord’s approval of the manner in which the Generator is installed, the manner in which any fuel pipe is installed, the manner in which any ventilation and exhaust systems are installed, the manner in which any cables are run to and from the Generator to the Premises and the measures that will be taken to eliminate any vibrations or sound disturbances from the operation of the Generator, including, without limitation, any necessary two (2) hour rated enclosures or sound installation. Landlord shall have the right to require an acceptable enclosure to hide or disguise the existence of the Generator and to minimize any adverse effect that the installation of the Generator may have on the appearance of the Building and Project. Tenant shall be solely responsible for obtaining all necessary governmental and regulatory approvals and for the cost of installing, operating, maintaining and removing of the Generator. Tenant shall not install or operate the Generator until Tenant has obtained and submitted to Landlord copies of all required governmental permits, licenses and authorizations necessary for the installation and operation of the Generator. In addition to, and without limiting Tenant’s obligations under this Lease, Tenant shall comply with all applicable environmental and fire prevention Laws pertaining to Tenant’s use of the Generator Area. Tenant shall also be responsible for the cost of all utilities consumed in the operation of the Generator. Notwithstanding anything herein to the contrary, if Tenant does not install the Generator on or before the first anniversary of the Commencement Date, or if Tenant, after installation, removes the Generator from the Generator Area for reasons other than the repair and replacement of the Generator, Tenant’s right to install and maintain the Generator and to use the Generator Area shall be null and void.
26.2.2 Tenant shall be responsible for assuring that the installation, maintenance, operation and removal of the Generator shall in no way damage any portion of the Building or Project. To the maximum extent permitted by Law, the Generator and all appurtenances in the Generator Area shall be at the sole risk of Tenant, and Landlord shall have no liability to Tenant if the Generator or any appurtenances installations are damaged for any reason. Tenant agrees to be responsible for any damage caused to the Building or Project in connection with the installation, maintenance, operation or removal of the Generator and, in accordance with the terms of Section 11.4 of this Lease, to indemnify, defend and hold Landlord and its representatives and agents harmless from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including, without limitation, reasonable architects' and attorneys' fees (if and to the extent permitted by Law), which may be imposed upon, incurred by, or asserted against Landlord or any of its representatives and agents in connection with the installation, maintenance, operation or removal of the Generator, including, without limitation, any environmental and Hazardous Materials claims. In addition to, and without limiting Tenant’s obligations under this Lease, Tenant covenants and agrees that the installation and use of the Generator and appurtenances shall not adversely affect the insurance coverage for the Building. If for any reason, the installation or use of the Generator and/or the appurtenances shall result in an increase in the amount of the premiums for such coverage, then Tenant shall be liable for the full amount of any such increase.
26.2.3 Tenant shall be responsible for the installation, operation, cleanliness, maintenance and removal of the Generator and appurtenances, all of which shall remain the personal property of Tenant, and shall be removed by Tenant at its own expense at the Expiration or earlier termination of this Lease. Tenant shall repair any damage caused by such removal, including the patching of any holes to match, as closely as possible, the color surrounding the area where the Generator and appurtenances were attached. Such maintenance and operation shall be performed in a manner to avoid any unreasonable interference with any other tenants or Landlord. Tenant shall take the Generator Area “as is” in the condition in which the Generator Area is in as of the Commencement Date, without any obligation on the part of Landlord to prepare or construct the Generator Area for Tenant’s use or occupancy. Without limiting the foregoing, Landlord makes no warranties or representations to Tenant as to the suitability of the Generator Area for the installation and operation of the Generator. Tenant shall have no right to make any changes, alterations, additions, decorations or other improvements to the Generator Area without Landlord’s prior written consent. Tenant agrees to maintain the Generator, including without limitation, any enclosure installed around the Generator in good condition and repair. Tenant shall be responsible for performing any maintenance and improvements to any enclosure surrounding the Generator so as to keep such enclosure in good condition.
26.2.4 Tenant, upon prior notice to Landlord and subject to the rules and regulations enacted by Landlord, shall have access to the Generator and its surrounding area for the purpose of installing, repairing, maintaining and removing said Generator.
26.2.5 Tenant shall only test the Generator before or after reasonable business hours and at a time mutually agreed to in writing by Landlord and Tenant in advance. Tenant shall be permitted to use the Generator Area solely for the maintenance and operation of the Generator, and the Generator and Generator Area are solely for the benefit of Tenant. All electricity generated by the Generator may only be consumed by Tenant in the Premises.
26.2.6 Landlord shall have no obligation to provide any services, including, without limitation, electric current, to the Generator Area.
26.2.7 Tenant shall have no right to sublet the Generator Area or to assign its interest hereunder.
26.2.8 Notwithstanding anything to the contrary contained herein, if at any time during the Term Landlord determines in its sole but bona fide business judgement, that the Generator and/or any appurtenances interfere with the operations of the Building or the operations of any of the occupants of the Building, then Tenant shall, upon notice from Landlord, cease any further operation of the Generator. From and after such notice by Landlord, Tenant shall have no further right to operate the Generator unless and until Tenant shall have redesigned and modified the Generator and/or installations in a manner approved by Landlord, provided however, that Landlord’s approval of such redesign and modification shall constitute the mere permission to operate the Generator, which permission shall in no event be construed to abrogate or diminish Landlord’s rights or Tenant’s obligations under this Section 26.3 or this Lease.
26.2.9 During the initial Term, Tenant shall not be obligated to pay Landlord any Additional Rent or fee for the use of the Generator Area.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIAL PURPOSE, AND TENANT’S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
This Lease is executed as of the Lease Date (as defined in the Basic Lease Information).
| LANDLORD: | ||
| SCG SWIFT AVENUE INDUSTRIAL PARK, LLC, a Delaware limited liability company | ||
| By: | /s/ Meghan Concannon | |
| Name: | Meghan Concannon |
| Title: | Vice President |
| TENANT: | ||
| FREENOME HOLDINGS, INC., a Delaware corporation | ||
| By: | /s/ Mike Nolan | |
| Name: | Mike Nolan |
| Title: | CEO |
FIRST AMENDMENT
THIS FIRST AMENDMENT (this “Amendment”) is made and entered into as of June 9, 2022, by and between SCG SWIFT AVENUE INDUSTRIAL PARK, LLC, a Delaware limited liability company (“Landlord”), and FREENOME HOLDINGS, INC., a Delaware corporation (“Tenant”).
RECITALS
| A. | Landlord and Tenant are parties to that certain Lease, dated March 25, 2022 (the “Lease”). Pursuant to the Lease, Landlord has leased to Tenant space currently containing approximately 19,900 rentable square feet (the “Premises”) located at 345 Swift Avenue, South San Francisco, California, which is located in the building commonly known as Swift Avenue Industrial Park whose street address is 345-367 Swift Avenue, South San Francisco, California (the “Building”). |
| B. | Tenant and Landlord mutually desire that the Lease be amended to correct certain scrivener’s errors on and subject to the following terms and conditions. |
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant agree as follows:
| 1. | Amendment. Effective as of the date of this Amendment, Landlord and Tenant agree that the Lease shall be amended in accordance with the following terms and conditions: |
| 1.1 | Initial Liability Insurance Amount. The Initial Liability Insurance Amount set forth in the Basic Lease Information of the Lease is hereby deleted in its entirety and replaced with the following: |
“$1,000,000 per occurrence and $2,000,000 in the annual aggregate in primary coverage, with an additional $4,000,000 in umbrella coverage.”
| 1.2 | Tenant’s Insurance. Section 11.1 of the Lease is hereby deleted in its entirety and replaced with the following: |
“11.1 Tenant’s Insurance. Effective as of the earlier of (a) the date Tenant enters or occupies the Premises, or (b) the Commencement Date, and continuing throughout the Term, Tenant, at its sole cost and expense, shall maintain the following insurance policies: (1) commercial general liability insurance (including property damage, bodily injury and personal injury coverage, contractual liability) in amounts of $1,000,000 per occurrence and $2,000,000 in the annual aggregate in primary coverage; and in the event property of Tenant’s invitees or customers are kept in, or about the, Premises, Tenant shall maintain warehousemen’s legal liability or bailee customers insurance for the full value of the property of such invitees or customers as determined by the warehouse contract between Tenant and its customer; and if the use and occupancy of the Premises include any activity or matter that is or may be excluded from coverage under a commercial general liability policy [e.g., the sale, service or consumption of alcoholic beverages], Tenant shall obtain such endorsements to the commercial general liability policy or otherwise obtain insurance to insure all liability arising from such activity or matter [including liquor liability, if applicable] in such amounts as Landlord may reasonably require), insuring Tenant (and naming as additional insureds Landlord, Landlord’s property management company, Landlord’s asset management company and, if requested in writing by Landlord, Landlord’s Mortgagee), against all liability for injury to or death of a person or persons or damage to property arising from the use and occupancy of the Premises and (without implying any consent by Landlord to the installation thereof) the installation, operation, maintenance, repair or removal of Tenant’s Off-Premises Equipment, subject to all terms, conditions and exclusions and to the extent such obligations are insurable and commercially reasonable, (2) cause of loss-special risk form (formerly “all-risk”) or its equivalent insurance (including, but not limited to, sprinkler leakage, ordinance and law, sewer back-up, pipe burst, wind-driven rain, water leakage, windstorm and collapse coverage) covering the full value of all furniture, trade fixtures, equipment and personal property (including property of Tenant or property of others under Tenant’s care, custody, and control), alterations and improvements and betterments in the Premises or otherwise placed in the Project by or on behalf of a Tenant Party (including Tenant’s Off-Premises Equipment), naming Landlord and Landlord’s Mortgagee as additional loss payees as their interests may appear, (3) contractual liability insurance sufficient to cover Tenant’s indemnity obligations hereunder (but only if such contractual liability insurance is not already included in Tenant’s commercial general liability insurance policy), (4) employers’ liability insurance of at least $1,000,000, (5) commercial auto liability insurance (if applicable) covering automobiles owned, hired or used by Tenant in carrying on its business with limits not less than $1,000,000 combined single limit for each accident, insuring Tenant (and naming as additional insureds Landlord, Landlord’s property management company, Landlord’s asset management company and, if requested in writing by Landlord, Landlord’s Mortgagee), (6) workers’ compensation insurance as required by the state in which the Premises is located and in amounts as may be required by applicable statute and shall include a waiver of subrogation in favor of Landlord, (7) business interruption insurance with a limit representing loss of at least approximately 6 months of income, and (8) Umbrella or Excess Liability Insurance with limits of $4,000,000 per occurrence and $4,000,000 in the aggregate providing coverage over commercial general liability, automobile liability and employers liability required above.
Tenant’s insurance shall be primary and non-contributory when any policy issued to Landlord provides duplicate or similar coverage, and in such circumstance Landlord’s policy will be excess over Tenant’s policy. The limits and types of insurance maintained by Tenant shall not limit Tenant’s liability under this Lease. Tenant shall furnish to Landlord certificates of such insurance and such other evidence satisfactory to Landlord of the maintenance of all insurance coverages required hereunder at least ten days prior to the earlier of the Commencement Date or the date Tenant enters or occupies the Premises (in any event, within ten days of the effective date of coverage), and at least 15 days prior to each renewal of said insurance, and Tenant shall obtain a written obligation on the part of each insurance company to notify Landlord at least 30 days before cancellation or a material change of any such insurance policies; provided, however, that in the event that Tenant’s insurance carrier will not provide such notice to Landlord, then Tenant must provide such written notice to Landlord within the time frames set forth above. All such insurance policies shall be issued by companies with an A.M. Best rating of A:VIII or better. Acceptance by Landlord of delivery of any certificates of insurance does not constitute approval or agreement by Landlord that the insurance requirements of this section have been met, and failure of Landlord to identify a deficiency from evidence provided will not be construed as a waiver of Tenant’s obligation to maintain such insurance.”
| 2. | Miscellaneous. |
| 2.1 | This Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Under no circumstances shall Tenant be entitled to any rent abatement, improvement allowance, leasehold improvements, or other work to the Premises, or any similar economic incentives that may have been provided Tenant in connection with entering into the Lease, unless specifically set forth in this Amendment. |
| 2.2 | Except as herein modified or amended, the provisions, conditions and terms of the Lease shall remain unchanged and in full force and effect. In the case of any inconsistency between the provisions of the Lease and this Amendment, the provisions of this Amendment shall govern and control. The capitalized terms used in this Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this Amendment. |
| 2.3 | Submission of this Amendment by Landlord is not an offer to enter into this Amendment but rather is a solicitation for such an offer by Tenant. Landlord shall not be bound by this Amendment until Landlord has executed and delivered the same to Tenant. |
| 2.4 | Pursuant to California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this Amendment, the Premises have not undergone inspection by a “Certified Access Specialist” (“CASp”) to determine whether the Premises meet all applicable construction-related accessibility standards under California Civil Code Section 55.53. Landlord hereby discloses pursuant to California Civil Code Section 1938 as follows: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.” The parties agree that Section 9 of Lease remains in full force and effect. |
| 2.5 | This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Amendment. Execution copies of this Amendment may be delivered by facsimile or email, and the parties hereto agree to accept and be bound by facsimile signatures or scanned signatures transmitted via email hereto, which signatures shall be considered as original signatures with the transmitted Amendment having the same binding effect as an original signature on an original Amendment. At the request of either party, any facsimile document or scanned document transmitted via email is to be re-executed in original form by the party who executed the original facsimile document or scanned document. Neither party may raise the use of a facsimile machine or scanned document or the fact that any signature was transmitted through the use of a facsimile machine or email as a defense to the enforcement of this Amendment. In addition, the parties agree that this Amendment may be signed using electronic signature technology (e.g., via DocuSign or similar electronic signature technology), and that such signed electronic record shall be valid and as effective to bind the party so signing as a paper copy bearing such party’s hand-written signature. The parties further consent and agree that (1) to the extent a party signs this document using electronic signature technology, by clicking “sign”, such party is signing this Amendment electronically, and (2) the electronic signatures appearing on this Amendment shall be treated, for purposes of validity, enforceability and admissibility, the same as hand written signatures. |
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Landlord and Tenant have entered into and executed this Amendment as of the date first written above.
| LANDLORD | TENANT |
|
SCG SWIFT AVENUE INDUSTRIAL PARK, LLC,
a Delaware limited liability company
|
FREENOME HOLDINGS, INC.,
a Delaware corporation
|
| By: | /s/ Meghan Concannon | By: | /s/ Mike Nolan |
| Name: | Meghan Concannon | Name: | Mike Nolan |
| Title: | Vice President | Title: | Chief Executive Officer |
5
Exhibit 10.20
BIOCITY HSRE-TRINITY PROPCO LIMITED
8 Sackville Street, London W1S 3DG
Company number: 13100744
Freenome Limited (company number: 04606727)
Medicity - D6 Building
1 Thane Road
Nottingham
United Kingdom
NG90 6BH
For the attention of the directors
| 21 October | 2024 |
Dear Sirs/Madams
PREMISES KNOWN AS ROOMS 139, 140, 144, 150, 158 AND 190, MEDICITY NOTTINGHAM AS MORE PARTICULARLY DESCRIBED IN THE LEASE REFERRED TO BELOW AND AS SHOWN EDGED GREEN ON THE PLAN ANNEXED HERETO (“PREMISES”)
LEASE OF THE PREMISES (AND OTHER ROOMS) DATED 23 OCTOBER 2019 AND MADE BETWEEN (1) MEDICITY NOTTINGHAM LIMITED AND (2) ONCIMMUNE LIMITED, AS VARIED AND PARTIALLY SURRENDERED BY A DEED OF SURRENDER OR PART AND DEED OF VARIATION DATED 3 JANUARY 2023 AND MADE BETWEEN (1) ONCIMMUNE LIMITED AND (2) BIOCITY HSRE-TRINITY PROPCO LIMITED (“LEASE”)
THE LANDLORD AND TENANT ACT 1954 (“1954 ACT”).
The provisions of ss. 24 to 28 of the 1954 Act are excluded in relation to the Lease. Accordingly, the Lease will come to an end on its contractual expiry date of 22 October 2024.
Whilst the negotiations for the grant of a new lease of the Premises are ongoing, BioCity HSRE-Trinity Propco Limited, the current landlord under the Lease, wishes to regularise the position at the Premises more fully and, to that end, is prepared to allow Freenome Limited to continue to remain in occupation of the Premises as a tenant at will on the terms set out below. However, this is strictly without prejudice to Freenome Limited’s right to determine such a tenancy, being a tenancy at will, at any time.
Accordingly, BioCity HSRE-Trinity Propco Limited will permit Freenome Limited to occupy the Premises on the following terms (“Agreement”):
| 1. | From and including 23 October 2024, BioCity HSRE-Trinity Propco Limited (“Landlord”) lets and Freenome Limited (“Tenant”) takes the Premises on a tenancy at will (“Tenancy at Will”). |
| 2. | Save as set out in this Agreement, the terms of the Tenancy at Will shall be the same as those in the Lease as they apply to the Premises and insofar as they are not inconsistent with the terms of this Agreement and/or a tenancy at will. |
| 1 |
| 3. | The Annual Rent (as such term is defined in the Lease) shall be payable from and including 23 October 2024 on the same basis as the Lease save that the Annual Rent payable under this Tenancy at Will shall be £150,501.05 per annum exclusive of VAT. |
| 4. | The deposit held by the Landlord under the provisions of clause 7 of the Lease (being £27,545.96) shall continue to be held by the Landlord as security for the Tenant’s obligations in the Lease and this Agreement. For the avoidance of doubt, the deposit shall be refundable at the end of this Tenancy at Will after deduction of the Landlord’s costs of remedying any breach of the Tenant’s covenants in the Lease or this Agreement or in paying to the Landlord any sums due under the terms of the Lease or this Agreement. |
| 5. | The Landlord and the Tenant agree that the Tenancy at Will is terminable at any time by either party and that neither the payment of nor any demand for the Annual Rent or other monies due under this Agreement nor the fact that the amount of Annual Rent or other monies may be calculated by reference to a period shall create or cause the Tenancy at Will to become a periodic tenancy. |
| 6. | The Tenancy at Will shall be granted on the understanding that the Tenant’s occupation thereunder shall not be such as is protected by Part II of the 1954 Act and that, for the avoidance of doubt, on vacating the Premises, the Tenant shall not be entitled to any compensation under section 37 of that 1954 Act. |
| 7. | The Tenant shall not make any alterations or additions to the Premises. |
| 8. | On termination of the Tenancy at Will: |
| 8.1 | the Landlord shall repay to the Tenant within 21 days any Annual Rent previously paid under this Agreement which relate to the period falling after the date of termination; and |
| 8.2 | the Premises are to be returned in no worse condition than when occupation was taken by the Tenant (howsoever it was documented) and shall be returned free from chattels and any other tenant items, and in a clean, broom swept condition. |
| 9. | The parties agree that the existence, terms and effect of this Agreement shall be disregarded for the purposes of any dilapidations or other claim made by the Landlord against the Tenant for breach of any of the Tenant’s obligations under the Lease. |
| 10. | Each party is to bear its own costs in relation to this Agreement, legal or otherwise. |
| 11. | The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement or of any term of this Agreement will be governed by the law of England and Wales. The courts of England and Wales will have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement. The parties irrevocably agree to submit to that jurisdiction. |
| 12. | If any clause or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other clause or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect. |
| 13. | The signatories to this Agreement are duly authorised by the respective party on whose behalf they sign to sign this Agreement and bind the respective party to the terms of it. |
| 2 |
Please sign and return this letter by way of acknowledgement and acceptance of the terms contained within this letter. The terms contained in this Agreement shall only come into effect when we have received your countersigned letter.
Yours faithfully
| Name: | /s/ Simon Hoad |
For and on behalf of BIOCITY HSRE-TRINITY PROPCO LIMITED
We confirm receipt of this letter and confirm our agreement to the terms it contains.
Signed for and on behalf of FREENOME LIMITED
| Signature | /s/ Riley Ennis | |
| Name: | Riley Ennis | |
| 17-Oct-2024 |
| 3 |
Exhibit 10.21
DATED
1st JULY 2020
Licence to Occupy on short term basis
relating to the area known as Lillian Goode Laboratory, David Evans Medical Research
Centre
between
NOTTINGHAM CITY HOSPITAL MEDICAL RESEARCH TRUST
and
ONCIMMUNE LIMITED
CONTENTS
CLAUSE
| 1. | Interpretation | 2 |
| 2. | Licence to occupy | 4 |
| 3. | Licensee's obligations | 4 |
| 4. | Termination | 5 |
| 5. | Notices | 6 |
| 6. | No warranties for use or condition | 6 |
| 7. | Limitation of Licensor's liability | 7 |
| 8. | Third party rights | 7 |
| 9. | Governing law | 7 |
| 10. | Jurisdiction | 7 |
| SCHEDULE | ||
| Schedule 1 Rights granted to Licensee | 9 | |
This licence is dated 1st July 2020
Parties
| (1) | NOTTINGHAM CITY HOSPITAL MEDICAL RESEARCH TRUST whose principle office is at City Hospital Campus, Hucknall Road, Nottingham, NG5 1PB (Licensor) |
| (2) | ONCIMMUNE LIMITED incorporated and registered in England and Wales with company number 04606727 whose registered office is at MediCity D6 Building, 1 Thane Road, Nottingham NG90 6BH (Licensee) |
Agreed terms
| 1. | Interpretation |
The following definitions and rules of interpretation apply in this licence.
| 1.1 | Definitions: |
Common Parts: such roads, paths, entrance halls, corridors, lifts, staircases, landing and other means of access in or upon the Centre, the use of which is necessary for obtaining access to and egress from the Property as designated from time to time by the Licensor.
Competent Authority: any statutory undertaker or any statutory public local or other authority or regulatory body or any court of law or government department or any of them or any of their duly authorised officers.
Licence Fee: the amount of £3000 per annum exclusive of VAT
Licence Fee Commencement Date: 1st July 2020.
Licence Period: the period from and including 1st July 2020 until the date on which this licence is terminated in accordance with clause 4.
Necessary Consents: all planning permissions and all other consents, licences, permissions, certificates, authorisations and approvals whether of a public or private nature which shall be required by any Competent Authority for the Permitted Use.
Permitted Use: Storage and use of either a) three freezers or b) two freezers and one fridge.
Property: the land and buildings at David Evans Medical Research Centre, City Hospital Campus, Hucknall Road, Nottingham, NG5 which shall include all fixtures and fittings and plant and machinery thereon.
Service Media: all media for the supply or removal of heat, electricity, gas, water, sewage, air-conditioning, energy, telecommunications, data and all other services and utilities and all structures, machinery and equipment ancillary to those media.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.
| 1.2 | Clause, Schedule and paragraph headings shall not affect the interpretation of this licence. |
| 1.3 | A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). |
| 1.4 | The Schedule forms part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedule. |
| 1.5 | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. |
| 1.6 | Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. |
| 1.7 | A reference to laws in general is a reference to all local, national and directly applicable supra-national laws as amended, extended or re-enacted from time to time and shall include all subordinate laws made from time to time under them and all orders, notices, codes of practice and guidance made under them. |
| 1.8 | Unless otherwise specified, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision and all orders, notices, codes of practice and guidance made under it. |
| 1.9 | A reference to writing or written excludes fax and e-mail. |
| 1.10 | Any obligation on a party not to do something includes an obligation not to allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person. |
| 1.11 | References to clauses and Schedules are to the clauses and Schedules of this licence and references to paragraphs are to paragraphs of the relevant Schedule. |
| 1.12 | Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. |
| 1.13 | A working day is any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England. |
| 2. | Licence to occupy |
| 2.1 | Subject to clause 3 and clause 4, the Licensor permits the Licensee to occupy the Property for the Permitted Use for the Licence Period in common with the Licensor and all others authorised by the Licensor (so far as is not inconsistent with the rights given to the Licensee to use the Property for the Permitted Use) together with the rights mentioned in the Schedule 1. |
| 2.2 | The Licensee acknowledges that: |
| (a) | the Licensee shall occupy the Property as a licensee and that no relationship of landlord and tenant is created between the Licensor and the Licensee by this licence; |
| (b) | the Licensor retains control, possession and management of the Property and the Licensee has no right to exclude the Licensor from the Property; |
| (c) | the licence to occupy granted by this agreement is personal to the Licensee and is not assignable and the rights given in clause 2 may only be exercised by the Licensee and its employees; and |
| (d) | without prejudice to its rights under clause 4, the Licensor shall be entitled at any time on giving not less than four weeks’ notice to require the Licensee to transfer to comparable space elsewhere within the Centre and the Licensee shall comply with such requirement. |
| 3. | Licensee's obligations |
The Licensee agrees and undertakes:
| (a) | to pay to the Licensor the Licence Fee payable in two equal instalments without any deduction in advance on the first day of July and January of each year. The first instalment will be paid on signing of this License; |
| (b) | not to use the Property other than for the Permitted Use; |
| (c) | not to make any alteration or addition whatsoever to the Property; |
| (d) | not to display any advertisement, signboards, nameplate, inscription, flag, banner, placard, poster, signs or notices at the Property without the prior written consent of the Licensor such consent not to be unreasonably withheld or delayed; |
| (e) | not to do or permit to be done on the Property anything which is illegal or which may be or become a nuisance (whether actionable or not), annoyance, inconvenience or disturbance to the Licensor or to tenants or occupiers of the Property or any owner or occupier of neighbouring property; |
| (f) | not to obstruct the Common Parts, make them dirty or untidy or leave any rubbish on them; |
| (g) | not to do anything that will or might constitute a breach of any Necessary Consents affecting the Property or which will or might vitiate in whole or in part any insurance effected by the Licensor in respect of the Property from time to time; |
| (h) | to comply with all laws and with any recommendations of the relevant suppliers relating to the supply and removal of electricity, gas, water, sewage, telecommunications and data and other services and utilities to or from the Property; |
| (i) | to observe any reasonable rules and regulations the Licensor makes and notifies to the Licensee from time to time governing the Licensee's use of the Property and the Common Parts; |
| (j) | to leave the Property in a clean and tidy condition and to remove the Licensee's furniture equipment and goods from the Property at the end of the Licence Period; |
| (k) | to indemnify the Licensor and keep the Licensor indemnified against all losses, claims, demands, actions, proceedings, damages, costs, expenses or other liability in any way arising from: |
| (i) | this licence; |
| (ii) | any breach of the Licensee's undertakings contained in clause 3; and/or |
| (iii) | the exercise of any rights given in clause 2; |
| 4. | Termination |
| 4.1 | This licence shall end on the earliest of: |
| (a) | the expiry of any notice given by the Licensor to the Licensee at any time on breach of any of the Licensee's obligations contained in clause 3; |
| (b) | the expiry of not less than six months' notice given by the Licensor to the Licensee or by the Licensee to the Licensor.] |
| 4.2 | Termination of this licence shall not affect the rights of either party in connection with any breach of any obligation under this licence which existed at or before the date of termination. |
| 5. | Notices |
| 5.1 | Any notice given under this licence shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service to the relevant party as follows: |
| (a) | to the Licensor at: David Evans Medical Research Centre, City Hospital Campus, Hucknall Road, Nottingham, NG5 1PB and marked for the attention of Dr Mark Devonald, Chair of the Board of Trustees; and |
| (b) | to the Licensee at: MediCity D6 Building, 1 Thane Road, Nottingham NG90 6BH and marked for the attention of Company Secretary; company.secretary@oncimmune.com, |
or as otherwise specified by the relevant party by notice in writing to each other party.
| 5.2 | Any notice given in accordance with clause 5.1 will be deemed to have been received: |
| (a) | if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or |
| (b) | if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting. |
| 5.3 | A notice given under this licence shall not be validly given if sent by e-mail. |
| 5.4 | This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. |
| 6. | No warranties for use or condition |
| 6.1 | The Licensor gives no warranty that the Property possesses the Necessary Consents for the Permitted Use. |
| 6.2 | The Licensor gives no warranty that the Property is physically fit for the purposes specified in clause 2. |
| 6.3 | The Licensee acknowledges that it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that may have been made by or on behalf of the Licensor before the date of this licence as to any of the matters mentioned in clause 6.1 or clause 6.2. |
| 6.4 | Nothing in this clause shall limit or exclude any liability for fraud. |
| 7. | Limitation of Licensor's liability |
| 7.1 | Subject to clause 7.2, the Licensor is not liable for: |
| (a) | the death of, or injury to the Licensee, its employees, customers or invitees to the Property; or |
| (b) | damage to any property of the Licensee or that of the Licensee's employees, customers or other invitees to the Property; or |
| (c) | any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by Licensee or the Licensee's employees, customers or other invitees to the Property in the exercise or purported exercise of the rights granted by clause 2. |
| 7.2 | Nothing in clause 7.1 shall limit or exclude the Licensor's liability for: |
| (a) | death or personal injury or damage to property caused by negligence on the part of the Licensor or its employees or agents; or |
| (b) | any matter in respect of which it would be unlawful for the Licensor to exclude or restrict liability. |
| 8. | Third party rights |
A person who is not a party to this licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this licence.
| 9. | Governing law |
This licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
| 10. | Jurisdiction |
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this licence or its subject matter or formation (including non-contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.
(signature page follows)
| Signed by | |
||
| for and on behalf of Nottingham City Hospital Medical Research Trust | Trustee | ||
| 5/8/20 | |||
| Date | |||
| Signed by Dr Adam Hill | ![]() |
||
| for and on behalf of Oncimmune Limited | Director | ||
| Aug 7, 2020 | |||
| Date |
10th AUG 2023
Amended and Restated
Licence to Occupy on short term basis
relating to the area known as Lillian Goode Laboratory, David Evans
Medical Research
Centre
between
NOTTINGHAM UNIVERSITY HOSPITALS NHS TRUST
And
FREENOME LIMITED
CONTENTS
CLAUSE
| 1. | Interpretation | 2 |
| 2. | Licence to occupy | 4 |
| 3. | Licensee’s obligations | 5 |
| 4. | Termination | 6 |
| 5. | Notices | 6 |
| 6. | No warranties for use or condition | 7 |
| 7. | Limitation of Licensor’s liability | 7 |
| 8. | Third party rights | 7 |
| 9. | Governing law | 8 |
| 10. | Jurisdiction | 8 |
SCHEDULE
| Schedule 1 | Rights granted to Licensee | 10 |
This Amended and Restated Licence to Occupy on Short Term Basis Agreement (together with the Existing Agreement (as defined below), shall be collectively referred to herein as the “Agreement”) effective as of August 10, 2023 (“Amendment Date”), and is entered into by and between Licensor and Licensee (each party, as defined below). The parties entered into the Licence to Occupy on Short Term Basis Agreement dated July 1, 2020 (“Existing Agreement”) for Licensor to provide certain storage and freezer services to Licensee under the terms and conditions of the Existing Agreement. Licensor and Licensee desire to amend and restate the Existing Agreement as set forth in this Agreement to update each party’s company name and Notice information.
This licence is dated 1st July 2020
Parties
| (1) | NOTTINGHAM UNIVERSITY HOSPITALS NHS TRUST whose principle office is at City Hospital Campus, Hucknall Road, Nottingham, NG5 1PB (“Licensor”) |
| (2) | FREENOME LIMITED incorporated and registered in England and Wales with company number 4606727 whose registered office is at MediCity D6 Building, 1 Thane Road, Nottingham NG90 6BH (“Licensee”) |
Agreed terms
| 1. | Interpretation |
The following definitions and rules of interpretation apply in this licence.
| 1.1 | Definitions: |
“Common Parts”: such roads, paths, entrance halls, corridors, lifts, staircases, landing and other means of access in or upon the Centre, the use of which is necessary for obtaining access to and egress from the Property as designated from time to time by the Licensor.
“Competent Authority”: any statutory undertaker or any statutory public local or other authority or regulatory body or any court of law or government department or any of them or any of their duly authorised officers.
“Licence Fee”: the amount of £3000 per annum exclusive of VAT.
“Licence Fee Commencement Date”: 1st July 2020.
“Licence Period”: the period from and including 1st July 2020 until the date on which this licence is determined in accordance with clause 4.
“Necessary Consents”: all planning permissions and all other consents, licences, permissions, certificates, authorisations and approvals whether of a public or private nature which shall be required by any Competent Authority for the Permitted Use.
“Permitted Use”: Storage and use of either a) three freezers or b) 2 freezers and 1 large fridge.
“Property”: the land and buildings at David Evans Medical Research Centre, City Hospital Campus, Hucknall Road, Nottingham, NG5 which shall include all fixtures and fittings and plant and machinery thereon.
“Service Media”: all media for the supply or removal of heat, electricity, gas, water, sewage, air-conditioning, energy, telecommunications, data and all other services and utilities and all structures, machinery and equipment ancillary to those media.
“VAT”: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.
| 1.2 | Clause, Schedule and paragraph headings shall not affect the interpretation of this licence. |
| 1.3 | A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). |
| 1.4 | The Schedule forms part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedule. |
| 1.5 | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. |
| 1.6 | Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. |
| 1.7 | A reference to laws in general is a reference to all local, national and directly applicable supra-national laws as amended, extended or re-enacted from time to time and shall include all subordinate laws made from time to time under them and all orders, notices, codes of practice and guidance made under them. |
| 1.8 | Unless otherwise specified, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision and all orders, notices, codes of practice and guidance made under it. |
| 1.9 | A reference to “writing” or “written” excludes fax and e-mail. |
| 1.10 | Any obligation on a party not to do something includes an obligation not to allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person. |
| 1.11 | References to clauses and Schedules are to the clauses and Schedules of this licence and references to paragraphs are to paragraphs of the relevant Schedule. |
| 1.12 | Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. |
| 1.13 | A “working day” is any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England. |
| 2. | Licence to occupy |
| 2.1 | Subject to clause 3 and clause 4, the Licensor permits the Licensee to occupy the Property for the Permitted Use for the Licence Period in common with the Licensor and all others authorised by the Licensor (so far as is not inconsistent with the rights given to the Licensee to use the Property for the Permitted Use) together with the rights mentioned in the Schedule 1. |
| 2.2 | The date of this Agreement is 1st July 2020 (“Effective Date”). Notwithstanding the Effective Date, the terms of this Agreement shall be applied retrospectively from the date of Signature of the Existing Agreement (“Execution Date”) to the Effective Date. All work carried out under this Agreement and any subsequent amendments to it between the Effective Date and the Execution Date, shall be applied retrospectively and the Licensor grants retrospective consent to the Licensee on the terms set out in this licence to carry out the Permitted Use. |
| 2.3 | The Licensee acknowledges that: |
| (a) | the Licensee shall occupy the Property as a licensee and that no relationship of landlord and tenant is created between the Licensor and the Licensee by this licence; |
| (b) | the Licensor retains control, possession and management of the Property and the Licensee has no right to exclude the Licensor from the Property; |
| (c) | the licence to occupy granted by this agreement is personal to the Licensee and is not assignable and the rights given in clause 2 may only be exercised by the Licensee and its employees; and |
| (d) | without prejudice to its rights under clause 4, the Licensor shall be entitled at any time on giving not less than four weeks’ notice to require the Licensee to transfer to comparable space elsewhere within the Centre and the Licensee shall comply with such requirement. |
| 3. | Licensee’s obligations |
The Licensee agrees and undertakes:
| (a) | to pay: |
| (i) | to the Licensor the Licence Fee payable in two equal instalments without any deduction in advance on the first day of July and January of each year. The first instalment will be paid on signing of this License; |
| (b) | not to use the Property other than for the Permitted Use; |
| (c) | not to make any alteration or addition whatsoever to the Property; |
| (d) | not to display any advertisement, signboards, nameplate, inscription, flag, banner, placard, poster, signs or notices at the Property without the prior written consent of the Licensor such consent not to be unreasonably withheld or delayed; |
| (e) | not to do or permit to be done on the Property anything which is illegal or which may be or become a nuisance (whether actionable or not), annoyance, inconvenience or disturbance to the Licensor or to tenants or occupiers of the Centre or any owner or occupier of neighbouring property; |
| (f) | not to obstruct the Common Parts, make them dirty or untidy or leave any rubbish on them; |
| (g) | not to do anything that will or might constitute a breach of any Necessary Consents affecting the Property or which will or might vitiate in whole or in part any insurance effected by the Licensor in respect of the Property from time to time; |
| (h) | to comply with all laws and with any recommendations of the relevant suppliers relating to the supply and removal of electricity, gas, water, sewage, telecommunications and data and other services and utilities to or from the Property; |
| (i) | to observe any reasonable rules and regulations the Licensor makes and notifies to the Licensee from time to time governing the Licensee’s use of the Property and the Common Parts; |
| (j) | to leave the Property in a clean and tidy condition and to remove the Licensee’s furniture equipment and goods from the Property at the end of the Licence Period; |
| (k) | to indemnify the Licensor and keep the Licensor indemnified against all losses, claims, demands, actions, proceedings, damages, costs, expenses or other liability in any way arising from: |
| (i) | this licence; |
| (ii) | any breach of the Licensee’s undertakings contained in clause 3; and/or |
| (iii) | the exercise of any rights given in clause 2; |
| 4. | Termination |
| 4.1 | This licence shall end on the earliest of: |
| (a) | the expiry of any notice given by the Licensor to the Licensee at any time on breach of any of the Licensee’s obligations contained in clause 3; |
| (b) | the expiry of not less than six months’ notice given by the Licensor to the Licensee or by the Licensee to the Licensor. |
| 4.2 | Termination of this licence shall not affect the rights of either party in connection with any breach of any obligation under this licence which existed at or before the date of termination. |
| 5. | Notices |
| 5.1 | Any notice given under this licence shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service to the relevant party as follows: |
| (a) | to the Licensor at: David Evans Medical Research Centre, City Hospital Campus, Hucknall Road, Nottingham, NG5 1PB and marked for the attention of Natasha Hill (Natasha.Hill@nuh.nhs.uk), Bioresource Operations Manager; and |
| (b) | to the Licensee at: MediCity D6 Building, 1 Thane Road, Nottingham NG90 6BH and marked for the attention of Legal; legal@freenome.com, |
or as otherwise specified by the relevant party by notice in writing to each other party.
| 5.2 | Any notice given in accordance with clause 5.1 will be deemed to have been received: |
| (a) | if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or |
| (b) | if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting. |
| 5.3 | A notice given under this licence shall not be validly given if sent by e-mail. |
| 5.4 | This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. |
| 6. | No warranties for use or condition |
| 6.1 | The Licensor gives no warranty that the Property possesses the Necessary Consents for the Permitted Use. |
| 6.2 | The Licensor gives no warranty that the Property is physically fit for the purposes specified in clause 2. |
| 6.3 | The Licensee acknowledges that it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that may have been made by or on behalf of the Licensor before the date of this licence as to any of the matters mentioned in clause 6.1 or clause 6.2. |
| 6.4 | Nothing in this clause shall limit or exclude any liability for fraud. |
| 7. | Limitation of Licensor’s liability |
| 7.1 | Subject to clause 7.2, the Licensor is not liable for: |
| (a) | the death of, or injury to the Licensee, its employees, customers or invitees to the Property; or |
| (b) | damage to any property of the Licensee or that of the Licensee’s employees, customers or other invitees to the Property; or |
| (c) | any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by Licensee or the Licensee’s employees, customers or other invitees to the Property in the exercise or purported exercise of the rights granted by clause 2. |
| 7.2 | Nothing in clause 7.1 shall limit or exclude the Licensor’s liability for: |
| (a) | death or personal injury or damage to property caused by negligence on the part of the Licensor or its employees or agents; or |
| (b) | any matter in respect of which it would be unlawful for the Licensor to exclude or restrict liability. |
| 8. | Third party rights |
A person who is not a party to this licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this licence.
| 9. | Governing law |
This licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
| 10. | Jurisdiction |
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this licence or its subject matter or formation (including non-contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.
(signature page follows)
| Signed by | |
|
| for and on behalf of Nottingham University Hospitals | Head of Research Operations | |
| Signed by Mike Nolan | ![]() |
|
| for and on behalf of Freenome Limited | Director |
9
|
If to Illumina:
Illumina, Inc.
5200 Illumina Way
San Diego, CA 92122
Attn: SVP, Corporate and Venture Development
With a copy to: Legalnotices@illumina.com
|
If to Customer:
Freenome Holdings, Inc.
279 East Grand Avenue
Fifth Floor
Attn: Legal Department
legal@freenome.com
|
|
Customer:
|
Illumina:
|
| By: | By: | ||||
| Name: | Name: | ||||
| Title: | Title: | ||||
| Date: | Date: |
|
Term
|
Section Defined
|
Term
|
Section Defined
|
|||
|
Acceptance Period
|
4.3
|
NEB
|
Introduction
|
|||
|
Agreement
|
Introduction
|
Non-Conformity
|
4.3
|
|||
|
Claim
|
7.1
|
Party / Parties
|
Introduction
|
|||
|
CMO
|
2.7
|
|||||
|
Confidential Information
|
9.1
|
Purchase Order
|
2.3
|
|||
|
Damages
|
7.1
|
Purchaser
|
Introduction
|
|||
|
Delivery
|
2.5
|
Purchaser Products
|
5.2
|
|||
|
Disclosing Party
|
9.1
|
Receiving Party
|
9.1
|
|||
|
Effective Date
|
Introduction
|
Renewal Term
|
8.1
|
|||
|
Inability to Supply
|
2.6
|
Required Quantity
|
2.4
|
|||
|
Indemnitee
|
7.3
|
WIP
|
2.7
|
|||
|
Indemnitor
|
7.3
|
Rolling Forecast
|
2.2
|
|||
|
Initial Term
|
8.1
|
Term
|
8.1
|
|||
|
Last Time Buy Orders
|
8.5
|
|||||
|
Minimum Order Quantity
|
2.3
|
|
To NEB:
|
New England Biolabs, Inc.
240 County Road
Ipswich, Massachusetts 01938
Attention: Director, OEM & Customized Solutions
|
|
with a copy to:
|
New England Biolabs, Inc.
240 County Road
Ipswich, Massachusetts 01938
Attention: Legal Department
Email: legal@neb.com
Facsimile: (978) 380-7475
|
|
To Purchaser:
|
Freenome Holdings, Inc.
279 E. Grand Avenue, 5th Floor
South San Francisco, CA 94080
Attention: Riley Ennis, Chief Operations Officer
|
|
with a copy to:
|
Freenome Holdings, Inc.
279 E. Grand Avenue, 5th Floor
South San Francisco, CA 94080
Attention: Legal Affairs
|
|
FREENOME HOLDINGS, INC.
|
NEW ENGLAND BIOLABS, INC.
|
|||
|
By:
|
/s/ Mike Nolan
|
By:
|
/s/ Dr. Salvatore V. Russello
|
|
|
Name:
|
Mike Nolan
|
Name:
|
Dr. Salvatore V. Russello
|
|
|
Title:
|
CEO
|
Title:
|
Director,
OEM & Customized Solutions |
|
|
Product No.
|
Product Name
|
Unit of Measure
|
Price (US$)
|
Total Price (US$)
|
Minimum Order Quantity
|
Lead Time
|
Restrictions on Use (§5.1)
|
|
E0740B-FN1
|
Custom NEB Next®
Enzymatic Methyl-seq Kit
|
Kit
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
Term
|
Section Defined
|
Term
|
Section Defined
|
|||
|
Acceptance Period
|
4.3
|
NEB
|
Introduction
|
|||
|
Agreement
|
Introduction
|
Non‑Conformity
|
4.3
|
|||
|
Claim
|
7.1
|
Party / Parties
|
Introduction
|
|||
|
CMO
|
2.7
|
|||||
|
Confidential Information
|
9.1
|
Purchase Order
|
2.3
|
|||
|
Damages
|
7.1
|
Purchaser
|
Introduction
|
|||
|
Delivery
|
2.5
|
Purchaser Products
|
5.2
|
|||
|
Disclosing Party
|
9.1
|
Receiving Party
|
9.1
|
|||
|
Effective Date
|
Introduction
|
Renewal Term
|
8.1
|
|||
|
Inability to Supply
|
2.6
|
Required Quantity
|
2.4
|
|||
|
Indemnitee
|
7.3
|
WIP
|
2.7
|
|||
|
Indemnitor
|
7.3
|
Rolling Forecast
|
2.2
|
|||
|
Initial Term
|
8.1
|
Term
|
8.1
|
|||
|
Last Time Buy Orders
|
8.5
|
|||||
|
Minimum Order
|
2.3
|
|||||
|
Quantity
|
|
NEW ENGLAND BIOLABS, INC.
|
FREENOME HOLDINGS, INC.
|
|||
|
By:
|
/s/ Salvatore V. Russelllo
|
By:
|
/s/ Mike Nolan
|
|
|
Salvatore V. Russelllo Ph.D.
|
Name:
|
Mike Nolan
|
||
|
Chief Executive Officer
|
Title:
|
CEO
|
||
|
Date:
|
November 12, 2022
|
Date:
|
11/10/2022
|
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
[***]
|
|
Year
|
Date
|
Forecasted Revenue
|
[***]
|
|
|
1
|
2022
|
[***]
|
[***]
|
|
|
2
|
2023
|
[***]
|
[***]
|
|
|
3
|
2024
|
[***]
|
[***]
|
|
|
4
|
2025
|
[***]
|
[***]
|
|
|
5
|
2026
|
[***]
|
[***]
|
|
|
6
|
2027
|
[***]
|
[***]
|
|
|
7
|
2028
|
[***]
|
[***]
|
|
|
8
|
2029
|
[***]
|
[***]
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
|
[***]
|
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
|
[***]
|
[***]
|
[***]
|
|
Where:
|
X =
|
the number of shares of Warrant Stock to be issued to Holder pursuant to this Section 3.2.
|
|
Y =
|
the number of shares of Warrant Stock as to which this Warrant is then being net exercised that are Vested Shares in accordance with the provisions of the above Section 2.2, as of the date of such net
exercise.
|
|
|
A =
|
the fair market value of one share of Warrant Stock, as determined in good faith by the Company’s Board of Directors, as at the time the net exercise election is made pursuant to this Section 3.2.
|
|
|
B =
|
the Warrant Price.
|
|
THE COMPANY:
|
||
|
FREENOME HOLDINGS, INC.
|
||
|
By:
|
/s/ Mike Nolan
|
|
|
Name:
|
Mike Nolan
|
|
|
Title:
|
Chief Executive Officer
|
|
|
AGREED AND ACKNOWLEDGED:
|
||
|
HOLDER:
|
||
|
NEW ENGLAND BIOLABS, INC.
|
||
|
By:
|
/s/ Salvatore V. Russelllo
|
|
|
Name:
|
Salvatore V. Russelllo Ph.D.
|
|
|
Title:
|
Chief Executive Officer
|
|
|
Address:
|
|||
| ________ |
a.
|
The undersigned tenders herewith payment of the total purchase price of such Shares in full, pursuant to a check or wire transfer, in the amount of $_______.
|
|
| ________ |
b.
|
The undersigned hereby elects to convert the Warrant into the Shares by the net exercise election pursuant to Section 3.2 of the Warrant. This conversion is exercised with respect to __________ of the Shares
covered by the Warrant resulting in a net total of _________ shares of the Shares being issued to the undersigned.
|
|
HOLDER:
|
||||
|
By
|
Date:
|
|||
|
Name:
|
||||
|
Title:
|
||||
| (1) | Prior to the consummation of the business
combination described in the proxy statement/prospectus forming part of this
registration statement (the “proxy statement/prospectus”), Perceptive Capital
Solutions Corp, a Cayman Islands exempted company (“PCSC”), will de-register
from the Register of Companies in the Cayman Islands and transfer by way of
continuation out of the Cayman Islands and into the State of Delaware so as to
migrate to and domesticate as a Delaware corporation in accordance with PCSC’s
amended and restated memorandum and articles of association, Section 388 of the
Delaware General Corporation Law (the “DGCL”) and Part 12 of the Companies Act
(Revised) of the Cayman Islands (the “Domestication”). All securities being
registered will be issued by PCSC (after its domestication as a corporation
incorporated in the State of Delaware), the continuing entity following the Domestication,
which will be renamed “Freenome, Inc.” In connection with and immediately prior
to the Domestication, each of the then-issued and outstanding Class B ordinary
shares, par value $0.0001 per share, of PCSC (the “PCSC Class B Shares”) will be
elected to convert, on a one-for-one basis, into Class A ordinary shares, par
value $0.0001 per share, of PCSC (the “PCSC Class A Shares”), as further
described in the proxy statement/prospectus. At the effective time of the
Domestication, each of the then-issued and outstanding PCSC Class A Shares will
convert automatically, on a one-for-one basis, into one share of common stock,
par value $0.0001 per share, of Freenome, Inc. (the “New Freenome Common
Stock”). The proposed maximum offering price per share of New Freenome Common
Stock is estimated in accordance with Rules 457(c) and 457(f)(1) promulgated
under the Securities Act solely for the purpose of calculating the registration
fee and is based upon a per share price of $11.275,
which is the average of the high and low prices per share of the PCSC Class A
Shares on April 23, 2026,
as reported on the Nasdaq Global Market. Pursuant to Rule 416(a) of the
Securities Act of 1933, as amended (the “Securities Act”), there are also being
registered an indeterminable number of additional shares of New Freenome Common
Stock as may be issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions. |
| Amount of Securities to be Received or Cancelled | Value per Share of Securities to be Received or Cancelled | Total Value of Securities to be Received or Cancelled | Cash Consideration to be Received by the registrant | Cash Consideration (Paid) by the registrant | Maximum Aggregate Offering Price |
| 11,067,500 | $11.275 | $124,786,062.50 | $124,786,062.50 |
| (2) | Represents a good faith estimate of the maximum number of shares of New Freenome Common Stock to be issued to holders of shares of Freenome Holdings, Inc. common stock and preferred stock ("Freenome Stockholders”) upon completion of the Business Combination, estimated solely for the purposes of calculating the registration fee. The consideration to Freenome Stockholders will be determined on the closing date of the Business Combination by reference to an exchange ratio based on an implied Freenome base equity value of $725,000,000, subject to certain adjustments as set forth in the Business Combination Agreement. Freenome is a private company, no public market exists for its securities, and it has an accumulated capital deficit. Therefore, the proposed maximum aggregate offering price is calculated pursuant to Rules 457(o) and 457(f)(2) as one-third of the aggregate par value of the Freenome securities expected to be exchanged in connection with the Business Combination. |
| Amount of Securities to be Received or Cancelled | Value per Share of Securities to be Received or Cancelled | Total Value of Securities to be Received or Cancelled | Cash Consideration to be Received by the registrant | Cash Consideration (Paid) by the registrant | Maximum Aggregate Offering Price |
| 72,000,000 | $0.00003 | $2,160.00 | $2,160.00 |