Exhibit 10.1

RESCISSION AGREEMENT

This Rescission Agreement (this “Agreement”) is made and entered into as of September 17, 2021 (the “Agreement Date”), by and among Accelerate Diagnostics, Inc., a Delaware corporation (the “Company”), and the Tanya Eva Schuler Trust, the Therese Heidi Schuler Trust and Schuler Grandchildren LLC, an Illinois limited liability company (each a “Purchaser”, together the “Purchasers” and, collectively with the Company, the “Parties”), and, only with respect to the last sentence of Section 1.3 (Rights of Parties after Rescission), Section 2.2(c), (d) and (e) (Mutual Release), Section 3 (Representations of the Schuler Trust), Section 4 (Tax Matters) and Section 5 (Miscellaneous), the Jack W. Schuler Living Trust (the “Schuler Trust”).

Whereas, the Parties are party, whether by assignment or otherwise, to that certain Securities Purchase Agreement, dated December 24, 2020 (the “Securities Purchase Agreement”), and that certain Registration Rights Agreement, dated December 24, 2020 (the “Registration Rights Agreement” and together with the Securities Purchase Agreement, the “Transaction Documents”) pursuant to which the Company agreed to sell 4,166,663 shares of its common stock;

Whereas, the Purchasers agreed to purchase, an aggregate of 3,964,843 (out of the total 4,166,663) shares of common stock (the “Shares”) of the Company (the “Original Transaction”) in three separate tranches (each, a “Tranche”);

Whereas, on January 28, 2021, the Schuler Trust and the Purchasers entered into that certain Assignment and Assumption Agreement (the “Assignment Agreement”) pursuant to which the Schuler Trust assigned all of its rights as a Purchaser (as defined in the Securities Purchase Agreement) under the Securities Purchase Agreement and Registration Rights Agreement to the Purchasers (the “Assignment”).

Whereas, (a) the first two Tranches closed on February 19, 2021 (the “First Closing Date”) and April 9, 2021 (the “Second Closing Date,” and, together with the First Closing Date, each a “Transaction Closing Date”), respectively, and (b) the third Tranche has not yet closed.

Whereas, as of the Effective Date (as defined below) which is in the same tax year as each Transaction Closing Date for each Party, the Parties intend to rescind and unwind the Transaction Documents and the Original Transaction (as assigned to the Purchasers pursuant to the Assignment), including each of the two Tranches that have closed and the pending third Tranche, for all legal, tax and financial purposes ab initio as if the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) had never occurred with respect to the Parties (the “Recission”).

Whereas, the Parties intend to restore themselves in all material respects to the legal, tax and financial positions they were in as if the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) had never occurred with respect to the Parties, including, for the avoidance of doubt, each of the three Tranches.

Whereas, there have been no, and will be no, actual or constructive distributions or contributions of money or property from or to the Company during the period of time beginning on the First Closing Date and ending on the Agreement Date.

Now, Therefore, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties hereby agree as follows:

1.1           Rescission. Each Party hereby agrees to rescind and abrogate the issuance of their respective Shares and the Transaction Documents (the “Rescission”) effective as of the Effective Date (as defined below), including for the avoidance of doubt each of the two closed Tranches and the pending third Tranche. Concurrently with the execution of this Agreement, the Company agrees to return to each Purchaser the entirety of the purchase price paid for their respective Shares acquired pursuant to the Transaction Documents (as assigned to the Purchasers pursuant to the Assignment) as set forth next to such Purchaser’s name on Exhibit A hereto (the “Refunded Amount”), and each Purchaser agrees to return to the Company all of their respective Shares acquired pursuant to the Transaction Documents (as assigned to the Purchasers pursuant to the Assignment) as set forth next to such Purchaser’s name on Exhibit A hereto.

1.2           Effectiveness. The Recission will be effective as of 12:01 am on January 29, 2021 (the “Effective Date”).

1.3           Rights of Parties after Rescission. The Parties each agree that upon consummation of the Rescission on the Agreement Date, the Purchasers have no further right or title to the Shares or interest in the Transaction Documents or the Original Transaction (each, as assigned to the Purchasers pursuant to the Assignment), and that the Shares shall be cancelled on the books and records of the Company as if they had never been issued. Each Purchaser shall return to the Company any stock certificates in respect of the Shares, if any, and hereby instructs the Company to cancel any stock certificates issued to such Purchasers, if any have been issued, representing the Shares. For the avoidance of doubt, each of the Parties and the Schuler Trust acknowledge and agree that the Rescission will not, and is not intended to, affect the Assignment; provided, however, that all Parties agree that the effect of the Rescission is that the Parties shall be in the same position as if the Schuler Trust had never signed to be a party to the Transaction Documents.

2.1           Representations.

(a)               Each Party acknowledges and agrees that the Rescission is intended to and will cancel or void the Original Transaction (as assigned to the Purchasers pursuant to the Assignment), including, for the avoidance of doubt, each of the Transaction Documents (as assigned to the Purchasers pursuant to the Assignment) and each of the three Tranches, with respect to such Party, ab initio. Each Party further acknowledges and agrees that the purpose and effect of the Rescission will be to restore in all material respects each Party to the legal, tax and financial position that would have existed with respect to such Party had the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) never occurred.

(b)              Each Party represents and warrants to the other Party that (i) such Party has not engaged in any activity prior to the Agreement Date that would be materially inconsistent with the Rescission or that would otherwise prevent such Party from being restored to the original legal, tax and financial position such Party was in immediately prior to the Original Transaction (as assigned to the Purchasers pursuant to the Assignment), (ii) such Party does not intend to take any action following the Agreement Date that is or will be materially inconsistent with the Rescission or the intention of the Parties to fully rescind and unwind the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) pursuant to this Agreement, (iii) all material items of income, deduction, gain, and loss of each Party will be reflected on such Party’s respective income tax returns, and all Parties will complete their respective 2021 federal income tax and information returns in all material respects as if the closing of the Original Transaction (as assigned to the Purchasers pursuant to the Assignment)had not occurred, and (iv) no Party will take any material position for federal income tax purposes that is inconsistent with the Rescission.

(c)               Each Party represents and warrants to the other Party that (i) such Party has not assigned or otherwise transferred any of its rights or obligations under the Transaction Documents or with respect to the Original Transaction (each, as assigned to the Purchasers pursuant to the Assignment); (ii) its legal, tax and financial arrangement with the other Party as of the Agreement Date is the same in all material respects as if the closing of the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) had never occurred, and (iii) during the period between the First Closing Date and the Agreement Date, no material changes to the legal, tax or financial relationships between the Parties occurred that would not have occurred if the Original Transaction (as assigned to the Purchasers pursuant to the Assignment) had not occurred.

(d)              Each Party represents and warrants to the other Party that (i) such Party has the full right, capacity and power to enter into this Agreement and to consummate the transactions contemplated herein and (ii) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding obligations of such Party, enforceable against such Party in accordance with its terms. Each Purchaser further represents and warrants that such Purchaser has not transferred or encumbered any of the Shares and/or transferred any rights or interests in the Shares to any person or entity, or if such Purchaser has transferred, encumbered, and/or transferred any rights or interests in the Shares, the parties to such agreements effecting any transfer, encumbrance, and/or transfer of any rights or interests in the Shares have rescinded such agreements in like manner and effect as this Agreement.

2.2           Mutual Release.

(a)               Purchaser Release. In consideration of the covenants, agreements and undertakings of the Parties under this Agreement, effective upon the payment by the Company of the Refunded Amount and return by the Purchasers of their respective Shares, each concurrently with the execution of this Agreement, each Purchaser, on behalf of itself and its respective present and former parents, subsidiaries, affiliates, officers, directors, shareholders, members, successors, and assigns (collectively, “Purchaser Releasors”) hereby releases, waives, and forever discharges the Company, the Schuler Trust, and each of their respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, “Company Releasees”) of and from any and all actions, causes of action, suits, losses, liabilities, rights, debts, dues, sums of money, accounts, reckonings, obligations, costs, expenses, liens, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands, of every kind and nature whatsoever, whether now known or unknown, foreseen or unforeseen, matured or unmatured, suspected or unsuspected, in law, admiralty, or equity (collectively, “Claims”), which any of such Purchaser Releasors ever had, now have, or hereafter can, shall, or may have against any of such Company Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the date of the Original Transaction through the date of this Agreement arising out of or relating to the Original Transaction, the Transaction Documents and this Agreement, except for any Claims relating to rights and obligations preserved by, created by or otherwise arising out of this Agreement.

(b)              Company Release. In consideration of the covenants, agreements and undertakings of the Parties under this Agreement, effective upon the payment by the Company of the Refunded Amount and return by the Purchasers of their respective Shares, each concurrently with the execution of this Agreement, the Company, on behalf of itself and its respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, “Company Releasors”) hereby releases, waives, and forever discharges each Purchaser on behalf of itself and its respective present and former parents, subsidiaries, affiliates, officers, directors, shareholders, members, successors, and assigns (collectively, “Purchaser Releasees”) of and from any and all Claims, which any of such Company Releasors ever had, now have, or hereafter can, shall, or may have against any of such Purchaser Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the date of the Original Transaction through the date of this Agreement arising out of or relating to the Original Transaction, the Transaction Documents and this Agreement, except for any Claims relating to rights and obligations preserved by, created by or otherwise arising out of this Agreement.

(c)               Schuler Affirmation and Release. In consideration of the covenants, agreements and undertakings of the Parties and the Schuler Trust under this Agreement, effective upon the payment by the Company of the Refunded Amount and return by the Purchasers of their respective Shares, each concurrently with the execution of this Agreement, the Schuler Trust, on behalf of itself and its respective present and former affiliates, agents, representatives, permitted successors, and permitted assigns (other than the Purchasers) (collectively, the “Schuler Releasors”) hereby releases, waives, and forever discharges the Company and each Purchaser, and each of their respective present and former, direct and indirect, parents, subsidiaries, affiliates, employees, officers, directors, shareholders, members, agents, representatives, permitted successors, and permitted assigns (collectively, “Non-Schuler Releasees”) of and from any and all Claims, which any of such Schuler Releasors ever had, now have, or hereafter can, shall, or may have against any of such Non-Schuler Releasees for, upon, or by reason of any matter, cause, or thing whatsoever from the date of the Original Transaction through the date of this Agreement arising out of the Assignment or the Transaction Documents.

(d)              Each Purchaser Releasor, Company Releasor and Schuler Releasor (collectively, the “Releasors”) understands that it may later discover Claims or facts that may be different from, or in addition to, those that it or any other Releasor now knows or believes to exist regarding the subject matter of the release contained in this Section 2.2, and which, if known at the time of signing this Agreement, may have materially affected this Agreement and such Party’s decision to enter into it and grant the releases contained in this Section 2.2. Nevertheless, the Releasors intend to fully, finally and forever settle and release all Claims that now exist, may exist, or previously existed, as set out in the releases contained in this Section 2.2, whether known or unknown, foreseen or unforeseen, or suspected or unsuspected, and the releases given herein are and will remain in effect as a complete release, notwithstanding the discovery or existence of such additional or different facts. The Releasors hereby waive any right or Claim that might arise as a result of such different or additional Claims or facts. Each Releasor has been made aware of, and understands, the provisions of California Civil Code Section 1542 (“Section 1542”), which provides:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

Each Releasor expressly, knowingly and intentionally waives any and all rights, benefits and protections of Section 1542 and of any other same or similar state or federal statute or common law principle limiting the scope of a general release.

(e)               Each Party and the Schuler Trust agrees that it is executing this Agreement solely in reliance on its own knowledge, belief and judgement, and that is has not relied on any representations made by any other Party, or others on the other Party’s behalf, other than what is contained in this Agreement.

2.3           Further Assurances. From time to time following the Agreement Date, the Company and Purchasers shall, and shall cause their officers, directors, employees and affiliates to, execute, acknowledge and deliver all such further conveyances, notices, assumptions, and such other instruments, and shall take such further actions, as may be necessary or appropriate and reasonably requested by the Company and Purchasers to fully and effectively give effect to the transactions contemplated by this Agreement.

(a)               Assignment and Acknowledgment.

3.2           The Schuler Trust hereby acknowledges, confirms and ratifies that the Schuler Trust assigned all right, title and interest in the Shares to the Purchasers pursuant to the Assignment and that this Agreement does not, and is not intended to, affect such Assignment. For the avoidance of doubt, the Schuler Trust acknowledges and agrees that the Rescission is with respect to the Original Transaction Documents (as assigned to the Purchasers pursuant to the Assignment) and that the Schuler Trust has no, and will not acquire any, interest in the Shares or the Original Transaction Documents, which were previously assigned to the Purchasers pursuant to the Assignment (the “Assignment and Acknowledgement”), as a result of the Recission.

4.1           Tax Treatment of Rescission. Each Party hereby agrees to treat the issuance of the Shares as having never occurred for U.S. federal, state, and other applicable tax purposes. It is the intention of the Parties that, as a result of the Rescission, Purchasers shall be considered never to have owned any of the Shares that were purchased on each Transaction Closing Date, and none of the Parties to this Agreement shall take any position inconsistent with such treatment.

5.1           Survival. The covenants, agreements, representations and warranties of the Parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Agreement Date until expiration of the statute of limitations applicable to the matters covered thereby (giving effect to any waiver, mitigation or extension thereof).

5.2           Governing Law; Jurisdiction. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to the principles of conflicts of law of such State or any other jurisdiction. Each Party hereto represents and warrants that it has not commenced, and it will not commence, any action or proceeding at law or otherwise against any other Party which asserts, arises out of or in any way relates to the claims released under this Agreement, provided however, that this Section 5.2 will not apply to any action or claim to enforce the terms of this Agreement.

5.3           Fees and Expenses. Each Party has relied on the advice of its own respective counsel. Each Party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that the Company shall reimburse the reasonable fees of counsel of the Purchasers in connection with the negotiation, preparation and execution of this Agreement.

5.4           Entire Agreement; Amendment. Except as expressly set forth herein, this Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between or among them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties hereto.

5.5           Counterparts; Severability. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, taken together, will be deemed to constitute one and the same instrument. The exchange of copies of this Agreement and of the parties’ executed signature pages by facsimile or email transmission (e.g., attaching a signed signature page as a “.pdf”, “.jpeg” or “.tif” file) shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or email shall be deemed to be their original signatures for all purposes. This Agreement also may be executed and delivered by means of any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com). Should any provision of this Agreement be held illegal, such illegality shall not invalidate the whole of this Agreement; instead, the Parties shall use their best efforts to reform the Agreement in order to give effect to the original intention of the Parties in all material respects. No waiver of the breach of any of the provisions of this Agreement shall be a waiver of any preceding or succeeding breach of that provision, or of any other provision(s) of the Agreement.

[Signature Page Follows]

In Witness Whereof, the parties hereto have caused this Agreement to be duly executed by their respective authorized representatives as of the Agreement Date.

Signature Page to Rescission Agreement

Exhibit 10.2

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated as of September 22, 2021, by and among Accelerate Diagnostics, Inc., a Delaware corporation (the “Company”), and each purchaser identified on Annex I attached hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).

WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below) and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchasers, and the Purchasers desire to purchase from the Company, certain securities of the Company, as more fully described in this Agreement.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:

Article 1.

Definitions

1.1       Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms shall have the meanings indicated in this Section 1.1:

“Agreement” has the meaning set forth in the Preamble.

“Action” means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or investigation pending or threatened in writing against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency, regulatory authority (federal, state, county, local or foreign), stock market, stock exchange or trading facility.

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 144.

“Business Day” means any day except Saturday, Sunday and any day which is a federal legal holiday or a day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

“Certificate of Designation” means the Certificate of Designation substantially in the form attached hereto as Exhibit A, setting forth the rights and privileges of the Series A Preferred Stock of the Company.

“Closing” means a closing of the purchase and sale of the Securities for each Tranche pursuant to Article II. 

“Closing Date” means the Business Day on which all of the conditions set forth in Sections 5.1 and 5.2 hereof are satisfied following (i) the date of execution of this Agreement with respect to the Closing of the first Tranche, and (ii) October 31, 2021 with respect to the Closing of the second Tranche, or such other dates as the parties may agree.

“Commission” means the Securities and Exchange Commission.

“Common Stock” means the common stock of the Company, par value $0.001 per share, and any securities into which such common stock may hereafter be reclassified.

“Company” has the meaning set forth in the Preamble.

“Company Deliverables” has the meaning set forth in Section 2.2(a).

“Company Party” has the meaning set forth in Section 4.2(b).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Indemnified Party” has the meaning set forth in Section 4.2(c).

“Indemnifying Party” has the meaning set forth in Section 4.2(c).

“Investment Amount” means, with respect to each Purchaser, the aggregate amount to be paid for the Securities purchased hereunder as set forth opposite the name of such Purchaser under the heading “Investment Amount” on Annex I attached hereto, in United States dollars and in immediately available funds.

“Lien” means any lien, charge, encumbrance, security interest, right of first refusal or other restrictions of any kind.

“Losses” has the meaning set forth in Section 4.2(a).

“Material Adverse Effect” has the meaning set forth in Section 3.1(d).

“Per Share Purchase Price” equals $7.70.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“Purchaser” or “Purchasers” has the meaning set forth in the Preamble.

“Purchaser Deliverables” has the meaning set forth in Section 2.2(b).

“Purchaser Party” has the meaning set forth in Section 4.2(a).

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“SEC Reports” has the meaning set forth in Section 3.2(e).

“Securities” means the shares of Series A Preferred Stock issued or issuable to the Purchasers pursuant to this Agreement.

“Securities Act” means the Securities Act of 1933, as amended.

“Series A Preferred Stock” means the series of preferred stock, par value $0.001 per share, of the company that has been designated in the Certificate of Designation as Series A Preferred Stock.

“Short Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act and all types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-US broker dealers or foreign regulated brokers.

“Subsidiary” means any “significant subsidiary” as defined in Rule 1-02(w) of the Regulation S-X promulgated by the Commission under the Exchange Act.

“Tranche” has the meaning set forth in Section 2.1(a).

“Transaction Documents” means this Agreement and any other documents or agreements explicitly contemplated hereunder.

ARTICLE 2.

PURCHASE AND SALE

2.1.         Closing.

2.2           Closing Deliveries.

(A)                           this Agreement, duly executed by the Company; and

(A)                           this Agreement, duly executed by such Purchaser; and

ARTICLE 3.
REPRESENTATIONS AND WARRANTIES

3.1.          Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser:

3.2.          Representations and Warranties of the Purchasers. Each Purchaser hereby, for itself and for no other Purchaser, hereby represents and warrants to the Company as follows:

ARTICLE 4.
OTHER AGREEMENTS OF THE PARTIES

4.1.          Transfer Restrictions.

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, OR OTHERWISE DISPOSED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.

4.2.          Indemnification.

ARTICLE 5.

CONDITIONS PRECEDENT TO CLOSING

5.1.          Conditions Precedent to the Obligations of the Purchasers to Purchase Securities. The obligation of each Purchaser to acquire Securities at the Closing for each Tranche is subject to the satisfaction or waiver by such Purchaser, at or before such Closing, of each of the following conditions:

5.2.          Conditions Precedent to the Obligations of the Company to sell Securities. The obligation of the Company to sell Securities to each Purchaser at the Closing for each Tranche is subject to the satisfaction or waiver by the Company, at or before such Closing, of each of the following conditions:

ARTICLE 6.

MISCELLANEOUS

6.1.          Fees and Expenses. Each of the Company and the respective Purchasers has relied on the advice of its own respective counsel. Each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement; provided, however, that the Company shall reimburse the reasonable fees of counsel of the Purchasers in connection with the negotiation, preparation and execution of this Agreement.

6.2.          Entire Agreement. The Transaction Documents contain the entire understanding of the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations, oral or written, with respect to such matters. At the Closing, and without further consideration, the Company and the Purchasers will execute and deliver to the other such further documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents.

6.3.          Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, sent by electronic mail, telecopied (upon telephonic confirmation of receipt), on the first Business Day following the date of dispatch if delivered by a recognized next day courier service, or on the third Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

6.4.          Amendments; Waivers; No Additional Consideration. No provision of this Agreement may be waived or amended except in a written instrument signed by the Company and the Purchasers. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.

6.5.          Termination. This Agreement may be terminated prior to the Closing Date on a Purchaser-by-Purchaser basis by written agreement of such Purchaser and the Company. Upon a termination in accordance with this Section 6.5, the Company and such Purchaser shall not have any further obligation or liability (including as arising from such termination) to the other.

6.6.          Construction. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. The language used in this Agreement will be deemed to be the language chosen by the parties and their counsel to express their mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

6.7.          Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. This Agreement, or any rights or obligations hereunder, may not be assigned by the Company (except by merger or in connection with another entity acquiring all or substantially all of the Company’s assets) without the prior written consent of each Purchaser. Any Purchaser may assign its rights hereunder in whole or in part to any Person to whom such Purchaser assigns or transfers any Securities in compliance with the Transaction Documents and applicable law; provided, that such transferee shall agree in writing to be bound by the terms and conditions of the Transaction Documents and provides written notice of assignment to the Company promptly after such assignment is effected.

6.8.          No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

6.9.          Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement and any other Transaction Document shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Document (whether brought against a party hereto or its respective Affiliates, employees or agents) shall be commenced exclusively in the New York courts. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of this Agreement and any other Transaction Document), and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any such New York court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement and any other Transaction Document, or the transactions contemplated thereby. If a party shall commence a Proceeding to enforce any provisions of this Agreement or any other Transaction Document, then the prevailing party in such Proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.

6.10.        Survival. The representations, warranties, agreements and covenants contained herein shall survive the Closing for the second Tranche and the delivery of the Securities for a period of one (1) year thereafter, after which time they shall expire and be of no further force or effect.

6.11.        Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile signature page were an original thereof.

6.12.        Severability. If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

6.13.        Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and customary and reasonable indemnity, if requested. The applicants for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Securities. If a replacement certificate or instrument evidencing any Securities is requested due to a mutilation thereof, the Company may require delivery of such mutilated certificate or instrument as a condition precedent to any issuance of a replacement.

6.14.        Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.

In Witness Whereof, the parties hereto have caused this Agreement to be duly executed by their respective authorized representatives as of the day and year first set forth above.

SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT

EXHIBIT A

CERTIFICATE OF DESIGNATION

OF THE SERIES A PREFERRED STOCK

(See Exhibit 3.1 to this Current Report on Form 8-K)

Exhibit 10.3 

Form of Exchange Agreement

[ ], 202[1]

Accelerate Diagnostics, Inc.

2.50% Convertible Senior Notes due 2023

The undersigned investor (the “Investor”), for itself and on behalf of the beneficial owners listed on Exhibit A hereto (“Accounts”) for whom the Investor holds contractual and investment authority (each, including the Investor if it is a party exchanging Notes (as defined below), an “Exchanging Investor”), hereby agrees to exchange, with Accelerate Diagnostics, Inc., a Delaware corporation (the “Company”), certain 2.50% Convertible Senior Notes due 2023, CUSIP 00430H AB8 (the “Notes”) for shares (“Shares”) of the Company’s common stock, $0.001 par value per share (the “Common Stock”), pursuant to this exchange agreement (this “Agreement”). The Investor understands that the exchange (the “Exchange”) is being made without registration of the offer or sale of the Shares under the Securities Act of 1933, as amended (the “Securities Act”), or any securities laws of any state of the United States or of any other jurisdiction in a private placement pursuant to the exemption from registration provided by Section 4(a)(2) of the Securities Act and that each Exchanging Investor participating in the Exchange is required to be an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act [that is also a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act]. Capitalized terms used but not defined in this Agreement have the respective meanings set forth in the indenture, dated as of March 27, 2018 (the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”) relating to the Notes.

1.                   Exchange. On the basis of the representations, warranties and agreements herein contained and subject to the terms and conditions herein set forth, the Investor hereby agrees to exchange for itself and on behalf of the Exchanging Investors, an aggregate principal amount of the Notes set forth on Exhibit A hereto (the “Exchanged Notes”) for [the aggregate number of Shares set forth on Exhibit A hereto (the “Exchange Consideration”).] [:

(a)                a number of Shares per $1,000 principal amount of such Exchanged Notes equal to [ ]; plus

(b)                an additional number of Shares per $1,000 principal amount of such Exchanged Notes equal to the sum, for each of the Trading Days (as defined below) in the Reference Period (as defined below), of the quotient of (i) $[ ] divided by (ii) the Daily VWAP (as defined below) for such Trading Day (the aggregate number of Shares under clause (a) and (b), the “Exchange Consideration”);

in each case, as adjusted in good faith by the Company for the following events occurring on or after the date hereof and prior to the Closing Date: any stock dividend, stock split, stock combination, reclassification and/or any transaction for which the Conversion Price (as defined in the Indenture) of the Notes would be adjusted pursuant to the Indenture; provided that the number of Shares to be exchanged for the Exchanged Notes shall be rounded down to the nearest whole share for each Exchanging Investor. The Company shall use its reasonable best efforts to provide a copy of its calculation of the incremental amount of Shares to be included in the Exchange Consideration for each Trading Day pursuant to Section 1(b) no later than 5:00 pm (prevailing Eastern Time) on the next succeeding Business Day (as defined below).

Notwithstanding the foregoing, in no event shall the number of shares of Common Stock issuable under this Agreement and in exchange for other Notes pursuant to any other exchange agreement entered into on or about the date of this Agreement (the “Other Exchange Agreements”) between the Company and holders of such other Notes with respect to the exchange of Notes for Common Stock exceed 19.9% of the Company’s issued and outstanding Common Stock on the date hereof (the “Threshold”).  If such aggregate amount of shares of Common Stock were to exceed the Threshold, (i) the number of shares of Common Stock to be issued under this Agreement shall be reduced by any such excess and (ii) the amount of Exchanged Notes shall be reduced in proportion to the reduction in the number of shares of Common Stock to be issued pursuant to (i) of this paragraph (for example, if the amount of Common Stock that would have been issued but for the Threshold was 1,000,000 shares, but the Threshold caused a reduction in the share issuance to be 800,000 shares, the amount of Exchanged Notes exchanged hereunder would be reduced by 20% in terms of principal face amount). Any Notes not exchanged as provided in the preceding sentence shall not be considered Exchanged Notes, shall not be exchanged hereunder and shall be returned to the Investor.

“Daily VWAP” means, for each Trading Day (as defined below) in the Reference Period (as defined below), the per share volume-weighted average price of the Common Stock as displayed under the heading “Bloomberg VWAP” on Bloomberg page “AXDX <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day, and excluding trades greater than 20,000 shares as determined by inputting 20,000 in the upper parameter of the Vol Filter (or if such volume-weighted average price is unavailable, the Last Reported Sale Price on such day). The “Daily VWAP” shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.

“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is traded.

“Market Disruption Event” means (a) a failure by the primary U.S. national or regional securities exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day (as defined in the Indenture) for the Common Stock for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or in any options contracts or futures contracts relating to the Common Stock.

“Reference Period” means the period of [ ] consecutive Trading Days commencing on the first Trading Day following the date hereof.

“Trading Day” means a day on which (a) there is no Market Disruption Event and (b) trading in the Common Stock generally occurs on The Nasdaq Capital Market (the “Securities Exchange”) or, if the Common Stock is not then listed on the Securities Exchange, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.]¹

“Business Day” means any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed.

For the avoidance of doubt, no cash will be paid to any Exchanging Investor in respect of any accrued and unpaid interest on the Exchanged Notes.

The Investor agrees that it and any Exchanging Investor shall not deliver a Notice of Conversion or Fundamental Change Repurchase Notice with respect to any Exchanged Notes and the Investor and each Exchanging Investor shall hold the Exchanged Notes until the Closing (as defined below). In consideration for the performance of their obligations hereunder (including as described in the immediately preceding sentence), the Company agrees to deliver the Exchange Consideration on the Closing Date (as defined below) to each Exchanging Investor in exchange for its Exchanged Notes.

The Exchange shall occur in accordance with the procedures set forth in Exhibit B.2 hereto (the “Exchange Procedures”); provided that each of the Company and the Investor acknowledges that the delivery of the Shares to any Exchanging Investor may be delayed due to procedures and mechanics within the system of The Depository Trust Company (“DTC”) or other events beyond the Company’s control and that such a delay will not be a default under this Agreement so long as (i) the Company is using its reasonable best efforts to effect the issuance of the Shares and any such delay does not exceed five (5) Business Days after the Closing Date (provided that if such time limit is exceeded, the Investor may terminate this agreement by written notice to the Company), or (ii) such delay arises due to a failure by Investor to deliver settlement instructions in accordance with Section 3(s); provided, further, that no delivery of Shares will be made until the Exchanged Notes have been properly submitted for exchange in accordance with the Exchange Procedures and no accrued interest will be payable by reason of any delay in making such delivery.

The closing of the Exchange (the “Closing”) shall take place remotely via the exchange of documents and signatures at 10:00 a.m., New York City time, on [ ], 202[1] (the “Closing Date”), or at such other time and place as the Company and the Investor may mutually agree. On the Closing Date, subject to satisfaction of the conditions precedent specified herein and the prior receipt by the Company from the Investor of the Exchanged Notes, the Company shall deliver the Shares to the DTC account specified by the Investor for each relevant Exchanging Investor in Exhibit B.1. All questions as to the validity and acceptance of the Exchanged Notes and the Exchange Consideration will be determined by the Company, in its reasonable discretion, which determination shall be final and binding. Subject to the terms and conditions of this Agreement and on and after the Closing, the Investor hereby, for itself and on behalf of its Accounts, (a) waives any and all other rights with respect to such Exchanged Notes and (b) releases and discharges the Company from any and all claims the undersigned and its Accounts may now have, or may have in the future, arising out of, or related to, such Exchanged Notes.

2.                   Representations and Warranties and Covenants of the Company. As of the date hereof and the Closing Date, the Company represents and warrants to, and covenants with, the Exchanging Investors that (and all such covenants, representations and warranties shall survive the Closing):

(a)                   The Company and each of its subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization (to the extent such concepts or analog concepts are applicable under such laws of any non-U.S. jurisdiction where any subsidiary of the Company is organized), are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified or in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole or on the performance by the Company of its obligations under this Agreement (a “Material Adverse Effect”). The Company has the power, authority and capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the Exchange contemplated hereby. No consent, approval, order or authorization of, or registration, declaration or filing with any governmental entity is required on the part of the Company or any of its subsidiaries in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Exchange, except as may be required under any applicable state securities laws or that may be made or obtained after the Closing without penalty.

¹ Include in lieu of preceding bracketed clause as applicable

(b)                   This Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, re-organization, moratorium or similar laws affecting or relating to enforcement of creditors’ rights generally or by equitable principles relating to enforceability, including principles of equity, commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or equity) (collectively, the “Enforceability Exceptions”).

(c)                   This Agreement and consummation of the Exchange will not violate, conflict with or result in a breach of or default under (i) the charter or bylaws of the Company, (ii) any agreement or instrument to which the Company is a party or by which the Company or any of its assets or subsidiaries are bound, or (iii) assuming the truth and accuracy of the representations and warranties and compliance with the covenants of the Investor and each Exchanging Investor herein, any laws, regulations or governmental or judicial decrees, injunctions or orders applicable to the Company and its subsidiaries, except in the case of clauses (ii) or (iii), where such violations, conflicts, breaches or defaults as would not, individually or in the aggregate, materially and adversely affect the financial position, results of operations or prospects of the Company and its subsidiaries taken as a whole, or materially impair the ability of the Company to consummate the transactions contemplated by this Agreement.

(d)                   When issued, delivered and paid for in the manner set forth in this Agreement, the Shares will (i) be validly issued, fully paid and non-assessable, (ii) be free and clear of any Liens (as defined in Section 3(c) below), option, equity or other adverse claim thereto, including claims or rights under any voting trust agreements, shareholder agreements or other agreements to which the Company is a party, and (iii) will not be subject to any preemptive, participation, rights of first refusal or other similar rights under the General Corporation Law of the State of Delaware or any agreement to which the Company is a party (other than any such rights that will be waived prior to the Closing). Assuming the accuracy of the Investor’s and each Exchanging Investor’s representations and warranties hereunder, the Shares (a) will be issued in the Exchange in reliance on the exemption from the registration requirements of the Securities Act pursuant to 4(a)(2) of the Securities Act, [(b) will be issued in CUSIP No. 00430H102, and (c) will be issued in compliance with all applicable securities laws, and at the Closing, be free of any restrictive legend and any restrictions on transfer under Rule 144 promulgated under the Securities Act] [and (b) will be issued in certificated form containing the restrictive legend as set forth in Section 3(z)]².

(e)                   The execution of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby does not require the consent, approval, authorization, order, registration or qualification of, or filing with, any governmental authority, non-governmental regulatory authorities (including Nasdaq, other than the filing with Nasdaq of a Listing of Additional Shares Notification Form, which the Company will so file prior to the issuance of Shares on the Closing Date to the extent required), except as may be required under any state or federal securities laws or that may be made or obtained after the Closing without penalty.

(f)                    From January 1, 202[1] to the date of this Agreement, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the Securities and Exchange Commission (the “SEC”) pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or timely filed notifications of late filings for any of the foregoing (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements of Regulations S-X and have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements), and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments).

(g)                   Without the prior written consent of the Investor (unless such disclosure is required by applicable law, rule, regulation or legal process based on advice of counsel), the Company shall not disclose (i) the name of the Investor or any Exchanging Investor in any filing or announcement or (ii) any information regarding the Investor’s holdings of securities of the Company or transactions in any securities of the Company at one of its prime brokers to any of the Investor’s other prime brokers or to any other person (other than the Company’s counsel, agents or representatives).

(h)                   There is no action, lawsuit, arbitration, claim or proceeding pending or, to the knowledge of the Company, threatened, against the Company that would reasonably be expected to impede the consummation of the Exchange.

² Include in lieu of preceding bracketed clause for an Exchanging Investor receiving legended Shares.

(i)                    The Company agrees that it shall, upon request, execute and deliver any additional documents deemed by the Trustee to be reasonably necessary to complete the Exchange.

(j)                    The Company hereby agrees to publicly disclose on or before 8:30 a.m., New York City time, on the first Business Day after the date hereof (the “Disclosure Time”), the exchange of the Exchanged Notes as contemplated by this Agreement in a press release or a Current Report on Form 8-K. The Company hereby acknowledges and agrees that any such press release or Current Report on Form 8-K will disclose all confidential information communicated by the Company to the Investor or any Exchanging Investor in connection with the Exchange to the extent the Company believes such confidential information constitutes material non-public information, if any, with respect to the Exchange or otherwise. The Company agrees that any confidentiality or other obligations undertaken by the Investor under the wall cross email between the Investor and the Placement Agent (defined below) or any other agreement between the Company (and/or any of its representatives) and the Investor shall terminate at the Disclosure Time or when the Company issues the press release or Current Report on Form 8-K referenced above (whichever is earlier).

(k)                   The Company understands that the Investor and each Exchanging Investor and others will rely upon the truth and accuracy of the foregoing representations, warranties and covenants and agrees that if any of the representations and warranties deemed to have been made by it are no longer accurate, the Company shall promptly notify the Investor and each Exchanging Investor prior to the Closing. The Company understands that, unless the Company notifies the Investor and each Exchanging Investor in writing to the contrary before the Closing, each of the Company’s representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing.

3.                   Representations and Warranties and Covenants of the Investor. As of the date hereof and as of the Closing Date (except as otherwise set forth below), the Investor hereby, for itself and on behalf of the Exchanging Investors, represents and warrants to, and covenants with, the Company that (and all such covenants, representations and warranties shall survive the Closing):

(a)                   The Investor and each Exchanging Investor is a corporation, limited partnership, limited liability company or other entity, as the case may be, duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)                   The Investor has all requisite corporate (or other applicable entity) power and authority to execute and deliver this Agreement for itself and on behalf of the Exchanging Investors and to carry out and perform its obligations under the terms hereof and the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by the Investor and constitutes the legal, valid and binding obligation of the Investor and each Exchanging Investor, enforceable in accordance with its terms, subject to the Enforceability Exceptions. If the Investor is executing this Agreement on behalf of an Account, (i) the Investor has all requisite discretionary and contractual authority to enter into this Agreement on behalf of, and, bind, each Account, and (ii) Exhibit A attached to this Agreement contains a true, correct and complete list of (A) the name of each Account and (B) the principal amount of each Account’s Exchanged Notes, as applicable.

(c)                   Each of the Exchanging Investors is the current sole beneficial owner, and as of the Closing will be the sole legal and beneficial owner, of the Exchanged Notes set forth on Exhibit A attached to this Agreement. When the Exchanged Notes are exchanged, the Company will acquire good, marketable and unencumbered title thereto, free and clear of all liens, mortgages, pledges, security interests, restrictions, charges, encumbrances or adverse claims, rights or proxies of any kind (“Liens”). None of the Exchanging Investors has, nor prior to the Closing, will have, in whole or in part, other than pledges or security interests that an Exchanging Investor may have created in favor of a prime broker under and in accordance with its prime brokerage agreement with such broker, (x) assigned, transferred, hypothecated, pledged, exchanged, submitted for conversion pursuant to the Indenture or otherwise disposed of any of its Exchanged Notes (other than to the Company pursuant hereto), or (y) given any person or entity any transfer order, power of attorney or other authority of any nature whatsoever with respect to its Exchanged Notes.

(d)                   The execution, delivery and performance of this Agreement by the Investor and compliance by the Investor and each Exchanging Investor with all provisions hereof and the consummation of the transactions contemplated hereby, including the Exchange, will not (i) require any consent, approval, authorization or other order of, or qualification with, any court or governmental body or agency (except as may be required under the securities or Blue Sky laws of the various states), (ii) constitute a breach or violation of any of the terms or provisions of, or result in a default under, (x) the organizational documents of any of the Investor or any Exchanging Investor or (y) any material indenture, loan agreement, mortgage, lease or other agreement or instrument to which the Investor or any of the Exchanging Investors is a party or by which such Investor or Exchanging Investor is bound, or (iii) violate or conflict with any applicable law or any rule, regulation, judgment, decision, order or decree of any court or any governmental body or agency having jurisdiction over the Investor or any of the Exchanging Investors, except in the case of clauses (ii)(y) or (iii), where such violations, conflicts, breaches or defaults would not, individually or in the aggregate, materially impair the ability of the Investor or any Exchanging Investor to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement.

(e)                   The Investor and each Exchanging Investor will comply with all applicable laws and regulations in effect necessary for each Exchanging Investor to consummate the transactions contemplated hereby and obtain any consent, approval or permission required for the transactions contemplated hereby and the laws and regulations of any jurisdiction to which the Investor and each such Exchanging Investor is subject, and the Company shall have no responsibility therefor.

(f)                    The Investor and each Exchanging Investor acknowledges that no person has been authorized to give any information or to make any representation or warranty concerning the Company or the Exchange other than the information set forth herein in connection with the Investor’s and each Exchanging Investor’s examination of the Company and the terms of the Exchange and the Shares, and the Company does not take, and J. Wood Capital Advisors LLC (the “Placement Agent”) does not take any responsibility for, and neither the Company nor the Placement Agent can provide any assurance as to the reliability of, any other information that others may provide to the Investor or any Exchanging Investor.

(g)                   The Investor and each Exchanging Investor has such knowledge, skill and experience in business, financial and investment matters so that it is capable of evaluating the merits and risks with respect to the Exchange and an investment in the Shares. With the assistance of the Investor’s and each Exchanging Investor’s own professional advisors, to the extent that the Investor and Exchanging Investor has deemed appropriate, such Exchanging Investor has made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Shares and the consequences of the Exchange and this Agreement and the Investor and Exchanging Investor has made its own independent decision that the investment in the Shares is suitable and appropriate for the Investor and Exchanging Investor. The Investor and each Exchanging Investor has considered the suitability of the Shares as an investment in light of the Investor and such Exchanging Investor’s circumstances and financial condition and is able to bear the risks associated with an investment in the Shares.

(h)                   The Investor confirms that it and each Exchanging Investor is not relying on any communication (written or oral) of the Company, the Placement Agent or any of their respective affiliates or representatives as investment advice or as a recommendation to acquire the Shares in the Exchange. It is understood that information provided by the Company, the Placement Agent or any of their respective affiliates and representatives shall not be considered investment advice or a recommendation to participate in the Exchange, and that none of the Company, the Placement Agent or any of their respective affiliates or representatives is acting or has acted as an advisor to the Investor or any Exchanging Investor in deciding to participate in the Exchange.

(i)                    The Investor confirms that the Company has not (i) given the Investor or any Exchanging Investor any guarantee, representation or warranty as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of an investment in the Shares or (ii) except as provided in Section 2(a)-(d), made any representation or warranty to the Investor or any Exchanging Investor regarding the legality of an investment in the Shares under applicable legal investment or similar laws or regulations. The Investor confirms that it and each Exchanging Investor is not relying and has not relied, upon any statement, advice (whether accounting, tax, financial legal or other), representation or warranty by the Company or any of its affiliates or representatives, including, without limitation, the Placement Agent, except for the representations and warranties made by the Company in this Exchange Agreement, and that the Investor has made its own independent decision that the investment in the Shares is suitable and appropriate for the Investor and the Exchanging Investors.

(j)                    The Investor and each Exchanging Investor is familiar with the business and financial condition and operations of the Company, and the Investor and each Exchanging Investor has had the opportunity to conduct its own investigation of the Company and the Shares. The Investor and each Exchanging Investor has had access to the SEC filings of the Company and such other information concerning the Company and the Shares as it deems necessary to enable it to make an informed investment decision concerning the Exchange. The Investor and each Exchanging Investor has been offered the opportunity to ask such questions of the Company and its representatives and received answers thereto, as it deems necessary to enable it to make an informed investment decision concerning the Exchange.

(k)                   Each Exchanging Investor is an institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act [and a “qualified institutional buyer” as defined in Rule 144A under the Securities Act]. The Investor agrees to furnish any additional information regarding the Investor or any Exchanging Investor reasonably requested by the Company or any of its affiliates to assure compliance with applicable U.S. federal and state securities laws in connection with the Exchange.

(l)                    The Investor and each Exchanging Investor is not, and has not been during the consecutive three month period preceding the date hereof and as of the Closing, will not be, a director, officer or “affiliate” within the meaning of Rule 144 promulgated under the Securities Act (an “Affiliate”) of the Company. During the preceding twelve (12) months, no Exchanging Investor acquired any of the Exchanged Notes, directly or indirectly, from any person known by the Investor to be an Affiliate of the Company.

(m)                 Neither the Investor nor any Exchanging Investor is directly, or indirectly through one or more intermediaries, controlling or controlled by, or under direct or indirect common control with, the Company.

(n)                   Each Exchanging Investor is acquiring the Shares solely for its own beneficial account, for investment purposes, and not with a view to, or for resale in connection with, any distribution of the Shares (except as permitted by Rule 144). The Investor and each Exchanging Investor understands that the offer and sale of the Shares have not been registered under the Securities Act or any state securities laws and are being issued without registration under the Securities Act pursuant to Section 4(a)(2) of the Securities Act, which exemption depends in part upon the investment intent of the Exchanging Investors and the accuracy of the other representations and warranties made by the Investor or behalf of the Exchanging Investors in this Agreement. The Investor and the Exchanging Investors understand that the Company is relying upon the representations, warranties and agreements contained in this Agreement (and any supplemental information provided to the Company by the Investor or the Exchanging Investors) for the purpose of determining whether this transaction meets the requirements for such exemption(s) [and to issue the Shares without legends as set forth herein].

(o)                   The Investor acknowledges that the terms of the Exchange have been mutually negotiated between the Investor and the Company. The Investor was given a meaningful opportunity to negotiate the terms of the Exchange.

(p)                   The Investor acknowledges that it and each Exchanging Investor had a sufficient amount of time to consider whether to participate in the Exchange and that neither the Company nor the Placement Agent has placed any pressure on the Investor or any Exchanging Investor to respond to the opportunity to participate in the Exchange. The Investor acknowledges that neither it nor any Exchanging Investor become aware of the Exchange through any form of general solicitation or advertising within the meaning of Rule 502 under the Securities Act or otherwise through a “public offering” under Section 4(a)(2) of the Securities Act.

(q)                   The Investor acknowledges it and each Exchanging Investor understands that the Company intends to pay the Placement Agent a fee in respect of the Exchange.

(r)                    The Investor will, upon request, execute and deliver, for itself and on behalf of any Exchanging Investor, any additional documents deemed by the Company and the Trustee or the transfer agent to be reasonably necessary to complete the transactions contemplated by this Agreement.

(s)                    No later than one (1) Business Day after the date hereof, the Investor agrees to deliver to the Company settlement instructions substantially in the form of Exhibit B.1 attached to this Agreement for each of the Exchanging Investors.

(t)                    The Investor acknowledges and agrees that it and each Exchanging Investor has not disclosed, and will not disclose, to any third party any information regarding the Exchange, and has not transacted, and will not transact in any securities of the Company, including, but not limited to, any hedging transactions, from the time the Investor accepted the terms of the wall cross email sent by the Placement Agent with respect to the transactions contemplated by this Agreement until the Disclosure Time. Solely for purposes of this Section ‎3(t), subject to the Investor’s and each Exchanging Investor’s compliance with their respective obligations under the U.S. federal securities laws and the Investor’s and the Exchanging Investor’s respective internal policies, (a) “Investor” and “Exchanging Investor” shall not be deemed to include any employees, subsidiaries, desks, groups or Affiliates of the Investor or the applicable Exchanging Investors that are effectively walled off by appropriate “Fire Wall” information barriers approved by the Investor’s or such Exchanging Investor’s respective legal or compliance department (and thus such walled off parties have not been privy to any information concerning the Exchange), and (b) the foregoing representations, warranties and covenants of this Section ‎3(t) shall not apply to any transaction by or on behalf of any account or investor that was effected without the advice or participation of, or such account’s or investor’s receipt of information regarding the Exchange provided by, the Investor or any Exchanging Investor.

(u)                   The Investor and each Exchanging Investor understands that the Company, the Placement Agent and others will rely upon the truth and accuracy of the foregoing representations, warranties and covenants and agrees that if any of the representations and warranties deemed to have been made by it or the Exchanging Investors are no longer accurate, the Investor shall promptly notify the Company and the Placement Agent prior to the Closing. The Investor understands that, unless the Investor notifies the Company in writing to the contrary before the Closing, each of the Investor’s and Exchanging Investors’ representations and warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing. If the Investor is exchanging any Exchanged Notes and acquiring the Shares as a fiduciary or agent for one or more accounts (including for purposes of this Section 3(u), the Accounts which are Exchanging Investors), it represents that (i) it has sole investment discretion with respect to each such account, (ii) it has full power to make the foregoing representations, warranties and covenants on behalf of such account and (iii) it has contractual authority with respect to each such account.

(v)                   The Investor and each Exchanging Investor acknowledges and the Investor agrees that the Placement Agent has not acted as a financial advisor or fiduciary to the Investor or any Exchanging Investor and that the Placement Agent and its directors, officers, employees, representatives and controlling persons have no responsibility for making, and have not made, any independent investigation of the information contained herein or in the Company’s SEC filings and make no representation or warranty to the Investor or any Exchanging Investor, express or implied, with respect to the Company, the Exchanged Notes or the Shares or the accuracy, completeness or adequacy of the information provided to the Investor or any Exchanging Investor or any other publicly available information, nor shall any of the foregoing persons be liable for any loss or damages of any kind resulting from the use of the information contained therein or otherwise supplied to the Investor or any Exchanging Investor.

(w)                 The Investor and each Exchanging Investor acknowledges and understands that at the time of the Closing, the Company may be in possession of material non-public information not known to the Investor or any Exchanging Investor that may impact the value of the Notes, including the Exchanged Notes, and the Shares (“Information”) that the Company has not disclosed to the Investor or any Exchanging Investor. The Investor and each Exchanging Investor acknowledges that they have not relied upon the non-disclosure of any such Information for purposes of making their decision to participate in the Exchange. The Investor and each Exchanging Investor understands, based on its experience, the disadvantage to which the Investor and each Exchanging Investor is subject due to the disparity of information between the Company, on the one hand, and the Investor and each Exchanging Investor, on the other hand. Notwithstanding this, the Investor and each Exchanging Investor has deemed it appropriate to participate in the Exchange. The Investor agrees that the Company and its directors, officers, employees, agents, stockholders and affiliates shall have no liability to the Investor or any Exchanging Investor or their respective beneficiaries whatsoever due to or in connection with the Company’s use or non-disclosure of the Information or otherwise as a result of the Exchange, and the Investor hereby irrevocably waives any claim that it or any Exchanging Investor might have based on the failure of the Company to disclose the Information.

(x)                   The Investor and each Exchanging Investor understands that no federal, state, local or foreign agency has passed upon the merits or risks of an investment in the Shares or made any finding or determination concerning the fairness or advisability of this investment.

(y)                   The Investor and each Exchanging Investor is a resident of the jurisdiction set forth on Exhibit B.1 attached to this Agreement.

(z)                   [The Exchanging Investor covenants that the Shares may be disposed of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance with any applicable U.S. state and federal securities laws. In connection with any transfer of the Shares other than (i) pursuant to an effective registration statement, (ii) to the Company or (iii) pursuant to Rule 144 (provided that the Exchanging Investor provides the Company with reasonable assurances (in the form of seller and, if applicable, broker representation letters) that the securities may be sold pursuant to such rule), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Shares under the Securities Act. The Exchanging Investor further acknowledges that the certificate(s) evidencing the Shares will contain the legend in substantially the following form:

THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, OR OTHERWISE DISPOSED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.]³

4.                   Conditions to Obligations of the Investor and the Company. The obligations of the Investor and the Exchanging Investors and of the Company under this Agreement are subject to the satisfaction at or prior to the Closing of the following conditions precedent: (a) the representations and warranties of the Company contained in Section ‎2 hereof (with respect to the Investor and Exchanging Investors) and of the Investor contained in Section ‎3 hereof (with respect to the Company) shall be true and correct as of the Closing in all respects with the same effect as though such representations and warranties had been made as of the Closing and (b) no provision of any applicable law or any judgment, ruling, order, writ, injunction, award or decree of any governmental authority shall be in effect prohibiting or making illegal the consummation of the transactions contemplated by this Agreement.

³ Include for an Exchanging Investor receiving legended Shares.

5.                   Waiver, Amendment. Neither this Agreement nor any provisions hereof or thereof shall be modified, changed or discharged, except by an instrument in writing, signed by the Company and the Investor.

6.                   Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either the Company or the Investor without the prior written consent of the other.

7.                   Waiver of Jury Trial. EACH OF THE COMPANY AND THE INVESTOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

8.                   Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to such state’s rules concerning conflicts of laws that might provide for any other choice of law.

9.                   Submission to Jurisdiction. Each of the Company and the Investor: (a) agrees that any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted exclusively in the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York; (b) waives any objection that it may now or hereafter have to the venue of any such suit, action or proceeding; and (c) irrevocably consents to the jurisdiction of the aforesaid courts in any such suit, action or proceeding. Each of the Company and the Investor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

10.                Venue. Each of the Company and the Investor irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in Section ‎9. Each of the Company and the Investor irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

11.                 Service of Process. Each of the Company and the Investor irrevocably consents to service of process in the manner provided for notices in Section ‎12. Nothing in this Agreement will affect the right of the Company or the Investor to serve process in any other manner permitted by law.

12.                Notices. All notices and other communications to the Company provided for herein shall be in writing and shall be deemed to have been duly given if delivered personally, sent by prepaid overnight courier (providing written proof of delivery) or sent by confirmed facsimile transmission or electronic mail and will be deemed given on the date so delivered (or, if such day is not a Business Day, on the first subsequent Business Day) to the following addresses, or in the case of the Investor, the address provided on Exhibit B.1 attached to this Agreement (or such other address as the Company or the Investor shall have specified by notice in writing to the other):

If to the Company:

Accelerate Diagnostics, Inc.

3950 South Country Club Road, Suite 470

Tucson, AZ 85714

Attention: General Counsel

Email: Legal@axdx.com

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

Snell & Wilmer L.L.P.

400 East Van Buren Street

Phoenix, AZ 85004

Attention: Dan Mahoney

Email: DMahoney@swlaw.com  

13.               Binding Effect. The provisions of this Agreement shall be binding upon and accrue to the benefit of the Company, the Investor and the Exchanging Investors and their respective heirs, legal representatives, successors and assigns. This Agreement constitutes the entire agreement between the Company and the Investor with respect to the subject matters hereof. This Agreement may be executed by one or more of the parties hereto in any number of separate counterparts (including by facsimile or other electronic means, including telecopy, email or otherwise), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.  Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

14.               Notification of Changes. After the date of this Agreement, each of the Company and the Investor hereby covenants and agrees to notify the other upon the occurrence of any event prior to the Closing of the Exchange pursuant to this Agreement that would cause any representation, warranty or covenant of the Company or the Investor, as the case may be, contained in this Agreement to be false or incorrect.

15.               Reliance by the Placement Agent. The Placement Agent may rely on each representation and warranty of the Company and the Investor made herein or pursuant to the terms hereof with the same force and effect as if such representation or warranty were made directly to the Placement Agent. The Placement Agent shall be a third-party beneficiary of this Agreement to the extent provided in this Section ‎15.

16.               Severability. If any term or provision of this Agreement (in whole or in part) is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

17.               Survival. The representations and warranties of the Company and the Investor contained in this Agreement or made by or on behalf of the Exchanging Investors pursuant to this Agreement shall survive the consummation of the transactions contemplated hereby.

18.               Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned (a) by mutual agreement of the Company and the Investor in writing or (b) by either the Company or the Investor if the conditions to such party’s obligations set forth herein have not been satisfied (unless waived by the party entitled to the benefit thereof), and the Closing has not occurred on or before [ ], 202[1] without liability of either the Company or the Investor or the Exchanging Investors, as the case may be; provided that neither the Company nor the Investor shall be released from liability hereunder if this Agreement is terminated and the transactions abandoned by reason of the failure of the Company or the Investor or the Exchanging Investors, as the case may be to have performed its obligations hereunder. Except as provided above, if this Agreement is terminated and the transactions contemplated hereby are not concluded as described above, this Agreement will become void and of no further force and effect.

19.               Taxation. The Investor acknowledges that, if an Exchanging Investor is a United States person for U.S. federal income tax purposes, either (i) the Company must be provided with a correct taxpayer identification number (“TIN,” generally a person’s social security or federal employer identification number) and certain other information on a properly completed and executed Internal Revenue Service (“IRS”) Form W-9, or (ii) another basis for exemption from backup withholding must be established. The Investor further acknowledges that, if an Exchanging Investor is not a United States person for U.S. federal income tax purposes, the Company must be provided with a properly completed and executed IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY (and all required attachments) or other applicable IRS Form W-8, attesting to that non-U.S. Exchanging Investor’s foreign status and certain other information, including information establishing an exemption from withholding under Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”). The Investor further acknowledges that any Exchanging Investor may be subject to 30% U.S. federal withholding or 24% U.S. federal backup withholding on certain payments made to such Exchanging Investor unless such Exchanging Investor properly establishes an exemption from, or a reduced rate of, such withholding or backup withholding. See Exhibit C for certain additional information. The Company and its agents shall be entitled to deduct and withhold from any consideration payable pursuant to this Agreement such amounts as are required to be deducted or withheld under applicable law. To the extent any such amounts are withheld and remitted to the appropriate taxing authority, such amounts shall be treated for all purposes as having been paid to the Exchanging Investor to whom such amounts otherwise would have been paid.

20.               Section and Other Headings. The section and other headings contained in Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

[SIGNATURE PAGE FOLLOWS]

Please confirm that the foregoing correctly sets forth the agreement between the Company and the Investor by signing in the space provided below for that purpose.

⁴ Include column as applicable.

EXHIBIT B.1

Telephone:

Account for Notes currently held through DTC:

DTC Participant Number

DTC Participant Name:

DTC Participant Phone Number:

DTC Participant Contact Email:

FFC Account #:

Account # at Bank/Broker:

Mailing address for certificated Shares (if different from address above):

EXHIBIT B.2

Exchange Procedures

[INTENTIONALLY OMITTED]

EXHIBIT C

Under U.S. federal income tax law, a holder who exchanges Notes for Shares generally must provide such holder’s correct TIN on a properly completed and executed IRS Form W-9 (available from the Company or at www.irs.gov/pub/irs-pdf/fw9.pdf) or otherwise establish a basis for exemption from backup withholding. A TIN is generally an individual holder’s social security number or a holder’s employer identification number. If the correct TIN is not provided, the holder may be subject to a $50 penalty imposed under Section 6723 of the Code. In addition, certain payments made to holders may be subject to U.S. backup withholding (currently set at 24% of the payment). If a holder is required to provide a TIN but does not have a TIN, the holder should consult its tax advisor regarding how to obtain a TIN. Certain holders (including corporations and non-U.S. holders) are not subject to these backup withholding and reporting requirements.

A non-U.S. holder (i) will be subject to 30% U.S. federal withholding unless such holder establishes an exemption from, or a reduced rate of, such withholding, and (ii) must establish its status as an exempt recipient from backup withholding and can do so by submitting a properly completed IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8IMY (and all required attachments), or other applicable IRS Form W-8 (available from the Company or at www.irs.gov), signed, under penalties of perjury, attesting to such holder’s exempt foreign status. This form also may establish an exemption from withholding under Section 1471 through 1474 of the Code.

U.S. backup withholding is not an additional tax. Rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is timely furnished to the IRS.  Holders are urged to consult their tax advisors regarding how to complete the appropriate forms and to determine whether they are exempt from backup withholding or other withholding taxes.