UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): February 7, 2023
Oncocyte Corporation
(Exact name of registrant as specified in its charter)
| California | 1-37648 | 27-1041563 | ||
| (State or other jurisdiction | (Commission | (IRS Employer | ||
| of incorporation) | File Number) | Identification No.) |
15 Cushing
Irvine, California 92618
(Address of principal executive offices)
(949) 409-7600
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Exchange Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||
| Common Stock, no par value | OCX | The Nasdaq Stock Market LLC |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
As previously reported, Oncocyte Corporation (the “Company” or “Oncocyte”) entered into an Agreement and Plan of Merger dated February 2, 2021, amended February 23, 2021, and amended and restated as of April 15, 2021 (as amended and restated, the “Merger Agreement”), by and among Oncocyte, CNI Monitor Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Oncocyte (“Merger Sub”), Chronix, the stockholders party to the Merger Agreement (the “Stockholders”) and the equityholder representative. Pursuant to the Merger Agreement, Merger Sub merged with and into Chronix, with Chronix surviving as a wholly-owned subsidiary of Oncocyte (the “Merger”). The Merger was completed on April 15, 2021. Pursuant to the Merger Agreement, in addition to closing consideration, Oncocyte agreed to pay Chronix’s equity holders (i) up to $14 million in any combination of cash or Oncocyte common stock if certain milestones are achieved (the “Milestone Payments”), (ii) earnout consideration during the five to ten-year earnout periods of up to 15% of net collections for sales of specified tests and products (the “15% Royalty”), and (iii) up to 75% of net collections from the sale or license to a third party of Chronix’s patents for use in transplantation medicine during a seven-year earnout period (the “Transplant Transfer Payout”).
On February 8, 2023, the Company and equityholder representative entered into Amendment No. 1 to the Merger Agreement (the “Amendment”), pursuant to which the parties agreed that (i) Chronix’s equity holders will be paid earnout consideration of 10% of net collections for sales of specified tests and products, until the expiration of intellectual property related to such tests and products, (ii) Chronix’s equity holders will be paid 5% of the gross proceeds received from any sale of all or substantially all of the rights, titles, and interests in and to Chronix’s patents for use in transplantation medicine to such third party, and (iii) the Milestone Payments, 15% Royalty and Transplant Transfer Payout obligations were eliminated.
The foregoing summary of the Amendment and the transactions contemplated by the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Item 1.02 Termination of a Material Definitive Agreement.
On February 7, 2023, Oncocyte entered into a Termination Agreement (the “Termination Agreement”) with Life Technologies Corporation, a Delaware corporation and subsidiary of Thermo Fisher Scientific Inc. (“LTC” and together with Oncocyte, the “Parties” or individually, a “Party”), pursuant to which the Parties agreed to terminate that certain Collaboration Agreement dated January 13, 2022, by and between Oncocyte and LTC (the “Collaboration Agreement”). As disclosed in the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 18, 2022, the Collaboration Agreement was previously entered into by the Parties in order to partner in the development and collaborate in the commercialization of Thermo Fisher Scientific’s existing Oncomine Comprehensive Assay Plus and Oncocyte’s Determa IO assay for use with LTC’s Ion TorrentTM GenexusTM Integrated Sequencer and LTC’s Ion TorrentTM GenexusTM Purification System in order to obtain in vitro diagnostic (“IVD”) regulatory approval.
Pursuant to the Termination Agreement, the Collaboration Agreement, and all rights granted and all obligations related to the products under development pursuant to the Collaboration Agreement, will be terminated upon LTC’s receipt of certain final payments under the Collaboration Agreement related to development and installation expenses and outstanding trade accounts receivables. The Termination Agreement also provides that certain payment obligations of Oncocyte for instruments to be supplied under the Collaboration Agreement will be canceled upon termination of the Collaboration Agreement.
The foregoing description of the Termination Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Termination Agreement, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously reported, Oncocyte received a letter (the “Notice”) from The Nasdaq Stock Market LLC (“Nasdaq”) on August 9, 2022 indicating that Nasdaq had determined that the Company no longer meets the minimum bid price requirement of Nasdaq Listing Rule 5450(a)(1), as the minimum closing bid price for the Company’s common stock was less than $1.00 for the previous 30 consecutive business days. The Notice provided that the Company may consider applying to transfer the listing of the Company’s common stock to The Nasdaq Capital Market, subject to the Company submitting an online transfer application, paying the requisite fee, satisfying such market’s continued listing requirement for the market value of publicly held shares and all other initial listing standards, with the exception of the bid price requirement, and providing written notice of its intention to cure the deficiency period during the additional compliance period. Following a transfer to The Nasdaq Capital Market, under Nasdaq Listing Rule 5810(c)(3)(A)(ii), the Company may be eligible for an additional 180 calendar day compliance period.
As previously reported, the Company applied on January 24, 2023 to transfer the listing of its common stock, no par value, from The Nasdaq Global Market to The Nasdaq Capital Market (the “Transfer”).
Upon receiving confirmation that Nasdaq had approved the Transfer, the Company’s common stock began trading on The Nasdaq Capital Market effective with the open of trading on February 7, 2023. The Company’s common stock continues to trade under the symbol “OCX”. The Nasdaq Capital Market operates in substantially the same manner as The Nasdaq Global Market, with issuers listed on The Nasdaq Capital Market tier required to meet certain financial and corporate governance requirements to qualify for continued listing.
On February 7, 2023, the Company received confirmation that Nasdaq has determined that the Company is eligible for an additional 180-calendar day period to regain compliance by meeting the minimum bid price requirement. The minimum bid price requirement would be met if the Company’s common stock has a minimum closing bid price of at least $1.00 per share for a minimum of 10 consecutive business days during the 180-calendar day period.
Item 9.01 Financial Statements and Exhibits.
| Exhibit Number | Description | |
| 2.1 | Amendment No. 1 to Amended and Restated Agreement and Plan of Merger dated February 8, 2023, by and between Oncocyte Corporation and David MacKenzie, solely in his capacity as Equityholder Representative | |
| 10.1 | Termination Agreement, dated February 7, 2023, by and between Oncocyte Corporation and Life Technologies Corporation | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ONCOCYTE CORPORATION | ||
| Date: February 13, 2023 | By: | /s/ Anish John |
| Anish John | ||
| Chief Financial Officer | ||
Exhibit 2.1
AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of February 8, 2023 (this “Amendment No. 1”), is entered into by and between Oncocyte Corporation, a California corporation (“Parent”) and David MacKenzie, solely in his capacity as Equityholder Representative (the “Equityholder Representative”). Initially capitalized terms used in this Amendment No. 1 and not otherwise defined will have the meanings set forth in the Merger Agreement (as defined below).
RECITALS
WHEREAS, Parent, CNI Monitor Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent, Chronix Biomedical, Inc., a Delaware corporation (“Chronix”), certain stockholders of Chronix and the Equityholder Representative entered into an Agreement and Plan of Merger, dated as of February 2, 2021, amended February 23, 2021 and amended and restated as of April 15, 2021 (the “Merger Agreement”);
WHEREAS, pursuant to Section 11.10 of the Merger Agreement, after the Effective Time, the Merger Agreement may be amended, modified or supplemented by an agreement in writing signed by Parent and the Equityholder Representative; and
WHEREAS, Parent and Equityholder Representative have agreed to amend, modify and supplement the Merger Agreement, including without limitation with respect to the Earnout Consideration and other Additional Payments set forth in Section 2.12 and Schedule 2.12.
NOW THEREFORE, in consideration of the premises set forth above, the mutual promises and covenants set forth herein and other for good and valuable consideration receipt of which is acknowledged, the Parties hereby agree as follows:
| 1. | Amendment to the Merger Agreement |
| 1.1 | Section 2.06(b) is hereby amended to delete the following proviso, which occurs in two places: |
“provided that in calculating the aggregate number of shares of Parent Common Stock to be issued, such number shall be derived by using the closing price of the Parent Common Stock listed on the Stock Exchange on the trading day immediately preceding Parent’s public announcement that a milestone has been achieved as set forth in Schedule 2.12, with such closing price rounded up to the nearest cent;”.
| 1.2 | Section 2.12(a) is hereby deleted entirely and replaced with the following: |
“Subject to offset for (a) the Equityholders’ indemnification obligations as set forth in Article IX (including in any Notice of Claim timely given) and/or (b) payment of Restructured Liabilities and Excess Liabilities in accordance with Article II, the Equityholders shall be entitled to receive Additional Payments set forth in the Earnout Schedule attached hereto as Schedule 2.12. The Earnout Schedule shall set forth the terms and conditions pursuant to which Parent, the Surviving Corporation, and/or a Third Party, as applicable, will pay Earnout Consideration equal to ten percent (10%) of Net Collected Sales of CNI Monitor, Company Pharma Tests, and Company Transplant IP. Notwithstanding anything else in this Agreement to the Contrary, if Parent or an Affiliate of Parent sells all or substantially all of the rights, titles, and interests in and to the Company Transplant IP, in one or a series of transactions (the “Transplant IP Sale”), then Parent, its Affiliate, or the Third Party that acquired such Company Transplant IP, shall make an Earnout Consideration payment in cash equal to five percent (5%) of the Purchase Price (as defined below), payable no later than two (2) Business Days after payment of the Purchase Price (the “Transplant IP Sale Payment”). The “Purchase Price” means the gross proceeds from a Transplant IP Sale, specifically including any subsequent payments to be paid after the closing of such Transplant IP Sale (e.g. contingent payments, earnouts, etc.). Notwithstanding anything else in this Agreement to the contrary, for purposes of the Additional Payments set forth in this Section 2.12(a) and Schedule 2.12 attached hereto, any such Additional Payments which become payable to an Equityholder shall be payable solely in cash.
| -1- |
The obligation to pay ten percent (10%) of Net Collected Sales of Company Transplant IP shall be assumed by the Third Party acquiror in the Transplant IP Sale, provided that Equityholder Representative shall be an express third-party beneficiary of the agreement(s) governing the Transplant IP Sale.
The obligation to pay ten percent (10%) of Net Collected Sales of Company Pharma Tests shall be assumed by the Third Party acquiror in the Company Pharma Test Sale, provided that Equityholder Representative shall be an express third-party beneficiary of the agreement(s) governing the Company Pharma Test Sale. “Company Pharma Test Sale” means the sale by Parent and/or any Affiliate of Parent of all or substantially all of the rights, titles, and interests in and to the Company Pharma Tests, in one or a series of transactions.
The obligation to pay ten percent (10%) of Net Collected Sales of CNI Monitor shall be assumed by the Third Party acquiror in the CNI Monitor Sale, provided that Equityholder Representative shall be an express third-party beneficiary of the agreement(s) governing the CNI Monitor Sale. “CNI Monitor Sale” means the sale by Parent and/or any Affiliate of Parent of all or substantially all of the rights, titles, and interests in and to CNI Monitor, in one or a series of transactions.
| 1.3 | Section 5.11 is hereby amended to delete the following phrase: |
“, but no later than the date that is sixty (60) days after the applicable Milestone Agreement Date;”.
| 1.4 | Annex A is hereby amended as follows: |
Delete the definition of CNI Monitor in its entirety and replace it with the following:
“CNI Monitor” means Chronix’s patented liquid biopsy diagnostic technology for the TheraSure™-CNI MONITOR clinical assay that uses copy number instability (CNI) to sensitively quantify the cell-free DNA from the primary solid tumor in a patient’s blood, including any and all subsequent inventions and improvements, and including any and all tests, products or services that incorporate and/or utilize Company Intellectual Property, and/or which combine Company Intellectual Property with other proprietary or intellectual property, whether such other proprietary or intellectual property materially changes the Company Intellectual Property, is claimed in any new patent filings, or otherwise.”
Delete the definition of Company Intellectual Property in its entirety and replace it with the following:
“Company Intellectual Property” means any and all Intellectual Property that is owned or purported to be owned by the Company, including any and all subsequent inventions and improvements, and including any and all tests, products and/or services which incorporate and/or utilize Company Intellectual Property, and/or which combine Company Intellectual Property with other proprietary or intellectual property, whether such other proprietary or intellectual property materially changes the Company Intellectual Property, is claimed in any new patent filings, or otherwise.
Delete the definition of Company Pharma Tests in its entirety and replace it with the following:
“Company Pharma Tests” means the Company’s CNI tests, including any and all subsequent inventions and improvements, and including any and all tests, products and/or services which incorporate and/or utilize Company Intellectual Property, and/or which combine Company Intellectual Property with other proprietary or intellectual property, whether such other proprietary or intellectual property materially changes the Company Intellectual Property, is claimed in any new patent filings, or otherwise, that are used in an agreement with a pharmaceutical company during the Earnout Period.
| -2- |
Delete the definition of Company Transplant IP in its entirety and replace it with the following:
“Company Transplant IP” means the Company Intellectual Property covered by the patents in family numbers 01800 and 01900 for use in transplantation medicine, including any and all subsequent inventions and improvements, and including any and all tests, products and/or services which incorporate and/or utilize Company Intellectual Property, and/or which combine Company Intellectual Property with other proprietary or intellectual property, whether such other proprietary or intellectual property materially change the Company Transplant IP, is claimed in any new patent filings, or otherwise.
Add the definition of Earnout Period as follows:
“Earnout Period” means the period commencing from and after the Closing Date until the expiration of the last to expire valid patent claim of the applicable Company Intellectual Property.
Delete the definition of Milestone Agreement Date in its entirety.
| 2. | No Other Change |
Except as contemplated by this Amendment No. 1, the Parties hereby acknowledge and agree that the other terms and provisions of the Merger Agreement shall not be affected and shall continue in full force and effect.
| 3. | Counterparts, Signatures |
This Amendment No. 1 may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. This Amendment No. 1 may be executed and delivered by facsimile transmission or by e-mail delivery of a “pdf” format data file, and in the event this Amendment No. 1 is so executed and delivered, 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 or “pdf” signature page were an original thereof.
[Signature Page Follows.]
| -3- |
IN WITNESS WHEREOF, Parent and the Equityholder Representative have caused this Amendment No. 1 to be signed by their respective officers or representatives thereunto duly authorized as of the date first written above.
| Parent: | ||
| Oncocyte Corporation | ||
| By: | /s/ Josh Riggs | |
| Name: | Josh Riggs | |
| Title: | Chief Executive Officer | |
| Equityholder Representative: | ||
| /s/ David MacKenzie | ||
| David MacKenzie | ||
[Signature Page to Amendment No.1 to Amended and Restated Merger Agreement]
Exhibit 10.1
TERMINATION AGREEMENT
This Termination Agreement (“Termination Agreement”) is made and dated as of the date of the last signature below (the “Effective Date”), by and between Life Technologies Corporation, having a place of business at 5823 Newton Drive, Carlsbad, California 92008 (“LTC”); and Oncocyte Corporation, a California corporation having a place of business at 15 Cushing, Irvine, California 92618 (“Oncocyte”). Hereinafter, each of LTC and Oncocyte are referred to as a “Party” and collectively as the “Parties” to this Termination Agreement.
RECITALS
WHEREAS, LTC and Oncocyte are parties to that certain Collaboration Agreement effective January 13, 2022 (the “Collaboration Agreement”);
WHEREAS, LTC and Oncocyte have mutually agreed that it is in their best interests to enter into this Termination Agreement whereby, for consideration specified herein, the Collaboration Agreement shall terminate.
NOW THEREFORE, in consideration of the mutual obligations in this Termination Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties hereby agree as follows:
| 1. | Definitions.
Capitalized terms not otherwise defined in this Termination Agreement shall have the meaning given to them in the Collaboration Agreement. |
| 2. | Termination.
Parties agree that notwithstanding anything to the contrary in Section 3 and Section 14 of the Collaboration Agreement, the Collaboration Agreement is hereby terminated upon LTC receipt of the Termination Payments. |
| 3. | Termination Payments.
In consideration for the termination of the Collaboration Agreement, Parties agree that (i) Oncocyte shall pay to LTC on or before January 20th, 2023, the sum of $374,585.00 for LTC’s expense toward the development of the Collaboration LTC Product and an outstanding final installation balance of $300,861.23, and (ii) Oncocyte shall pay to LTC on or before the date that is three business days after the Effective Date an outstanding Trade A/R balance of $5,248.92. |
| 4 | Service Contract and Product Warranty.
Parties agree that Oncocyte pre-payment obligation to LTC in the sum of $1,125,600 for an agreed 3-year service contract for ten (10) Genexus Integrated Sequencer units and ten (10) Genexus Purification System units is hereby canceled. In addition, LTC shall provide Oncocyte with a service quote at warranty expiration projected to be in the second quarter of 2023 with the said quote to be based on desired term duration. |
| 5. | Mutual Non-Disparagement.
Parties (on their own behalf and on behalf of their respective directors, officers, subsidiaries and affiliates and each of their respective successors and assigns) agrees that they shall not (whether directly or indirectly, individually or in concert with others, publicly or privately, orally or in writing) engage in any conduct or make, or cause to be made, any statement, observation or opinion, or communicate any information that is calculated to or is reasonably likely to have the effect of (i) undermining, impugning, disparaging, injuring the reputation of or otherwise in any way reflecting adversely or detrimentally upon the Parties or (ii) accusing or implying that a Party is engaged in any wrongful, unlawful or improper conduct. The foregoing shall not apply to any compelled testimony, either by legal process, subpoena or otherwise or to any response to any request for information from any governmental or regulatory authority having jurisdiction over the Parties; provided, however, that in the event that a Party is requested pursuant to, or required by, applicable law, regulation or legal process to testify or otherwise respond to a request for information from any governmental or regulatory authority, the Party shall, where legally permissible, notify the other Party promptly so that the Party may (at its own expense) seek a protective order or other appropriate remedy. In the event that no such protective order or other remedy is timely obtained, or a Party waives compliance with the terms of this section, the Party served with the legal process shall furnish only such information which it has been advised by counsel is legally required and will exercise reasonable efforts to obtain reliable assurance that such information will be accorded confidential treatment. |
| 6. | Instrument Resale.
Oncocyte agrees and acknowledges that Schedule 8.2 (LTC Instrument Services Terms and Conditions), section 9.4 (“Limitations”) of the Collaboration Agreement shall continue to apply, and LTC disclaims and shall not extend and/or provide any warranty to any of LTC’s instrument sold and/or transferred by Oncocyte to third parties. |
| 7. | Termination of right and obligations pertaining to Collaboration LTC Product and Collaboration Determa Product.
For the avoidance of doubt, the Parties agree that all rights granted to, and obligations of Oncocyte related to the Collaboration LTC Product is hereby terminated. In addition, any and all rights granted to, and obligations of LTC related to Collaboration Determa Product is terminated |
| 8. | Mutual Release and Waiver of Claims.
Each Party, on behalf of itself, and its affiliates and subsidiaries, hereby fully waives, releases and forever discharges the other Party, together with its affiliates and subsidiaries, from all disputes, complaints, claims, controversies, damages, actions, and causes of action, of any nature whatsoever, known or unknown, relating to the Collaboration Agreement. |
| 9. | Cooperation between the Parties.
|
| Each Party shall fully cooperate with the other Party with respect to the performance of this Termination Agreement. Each Party will provide or make available to the other Party any information and will execute, acknowledge, and deliver such further documents that may reasonably be required in order, to effectively perform this Termination Agreement and to evidence the termination of the Collaboration Agreement and to release all obligations and liabilities of the Parties thereunder. |
| 10. | No Admission of Liability.
|
| Parties expressly agree and acknowledge that their entering into this Termination Agreement shall not be construed in any manner as an admission of any liability, obligation, or wrongdoing on the part of either Party. Each Party expressly denies any and all liability or wronging with respect to the Collaboration Agreement. |
| 11. | Miscellaneous. |
a) No Modification. This Termination Agreement may be changed, amended or modified only by a writing signed by the Parties.
b) Headings. The headings contained in this Termination Agreement are for convenience of reference only and shall not be considered in construing this Termination Agreement.
c) Waiver. Any waiver by either Party of a breach or a default of any provisions of this Termination Agreement by the other Party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power, or privilege by such Party.
d) Successors and Assigns. This Termination Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns, and neither this Termination Agreement nor any of the rights, interests or obligations hereunder of the Parties hereto may be assigned or delegated by any of the Parties hereto without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
e) No Construction Against Drafter. The Parties acknowledge and agree that each Party has participated in the drafting and negotiation of this contract and have had a free and equal opportunity to do so, that each Party has been represented by counsel or had an opportunity to be represented by counsel, and that the provisions of this Agreement will not be construed against any Party as the drafter.
f) Further Action. Each Party agrees to execute, acknowledge, and deliver such further instruments and to do all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
g) Counterparts. This Termination Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The execution and delivery of this Termination Agreement by either Party hereto by facsimile transmission, DocuSign, or e-mail delivery of a “.pdf” or similarly formatted data file will constitute valid execution and delivery of this Termination Agreement.
h) Governing Law and Venue. This Termination Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Termination Agreement will be brought solely in any state or federal court located in San Diego County, California. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
i) Dispute Resolution. In the event any Party claims breach of this Termination Agreement, the Parties will consult with each other in good faith on the most effective means to cure the breach and to achieve any necessary restitution of its consequences. This consultation will be undertaken within a period of 10 days following the receipt of a written request to consult, and the consultation period will not exceed 30 days. During the consultation period, neither litigation nor arbitration may be pursued until attempts at consultative dispute resolution have been exhausted; provided, however, that notwithstanding any provision herein the contrary, in the event of an actual or threatened breach of a Party’s obligations under this Termination Agreement, a Party may seek a temporary restraining order or a preliminary injunction from any court of competent jurisdiction in order to prevent immediate and irreparable injury, loss, or damage on a provisional basis.
j) Entire Agreement. This Termination Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Termination Agreement and shall supersede all prior discussions, negotiations, correspondence, documents or agreements, whether written or oral, with respect to the subject matter of this Termination Agreement.
k) Severability. Should one or more of the provisions contained in this Termination Agreement be held invalid, illegal, or unenforceable by a court or tribunal with jurisdiction to do so, then the validity, legality, and enforceability of the remaining provisions contained herein will not be affected or impaired thereby, unless the absence of the invalidated provision(s) adversely affects the Parties’ substantive rights hereunder. In such instance, the Parties will use their best efforts to replace the invalid, illegal, or unenforceable provision(s) with valid, legal, and enforceable provision(s) that, insofar as practical, implement the purposes of this Agreement.
l) Publicity. The Parties agree that, except as otherwise required by applicable law as determined in good faith such Party in consultation with outside counsel, no press releases or other public announcements or disclosures regarding this Termination Agreement or any of the terms and provisions hereof shall be issued or made by any Party until the Termination Date shall have occurred; provided, that prior to any such disclosures, the disclosing Party shall furnish the proposed disclosure in advance to the other Party with reasonable opportunity for such receiving Party to seek a protective order or confidential treatment of such disclosure.
m) Notices. All notices All notices or other written communications provided for in this Termination Agreement will be given in writing and delivered by hand, by overnight courier service, or by certified or registered mail to the applicable Party at the applicable address(es) set forth below, or to such other address(es) as the applicable Party may have provided to the notifying Party for such purposes:
n) Counterparts. The Parties may execute this Termination Agreement in multiple counterparts, each of which constitutes an original, and all of which, collectively, constitutes only one agreement. The signatures of both Parties need not appear on the same counterpart, and delivery of an executed counterpart signature page by facsimile or other electronic method of delivery is as effective as executing and delivering this Agreement in the presence of the other Party to this Termination Agreement. The Parties agree that signatures may be made and delivered electronically. This Termination Agreement is effective upon delivery of one executed counterpart from each Party to the other Party.
All properly addressed notices or other written communications given to a Party in accordance with this Section will be deemed to have been given (a) on the date of receipt if delivered by hand or overnight courier service, or (b) on the date that is five business days after dispatch by certified or registered mail return receipt requested (postage prepaid) if mailed.
[Signature page follows]
IN WITNESS WHEREOF, each of LTC and Oncocyte has caused this Termination Agreement to be executed and delivered by its duly authorized representative.
| Life Technologies Corporation | ||
| By: | /s/ Garret Hampton | |
| Name: | Garret Hampton | |
| Title: | President Next Generation Sequencing Division | |
| Date: | February 7, 2023 | |
| Oncocyte Corporation | ||
| By: | /s/ Joshua Riggs | |
| Name: | Joshua Riggs | |
| Title: | Interim Chief Executive Officer | |
| Date: | February 7, 2023 | |