Grail, Inc.(GRAL) - 2025 Q3 - Quarterly Results

STOCK PURCHASE AGREEMENT Recitals This section outlines the stock purchase agreement's background and purpose, detailing the investors' intent to purchase shares from GRAIL, INC. - Investors (Samsung C&T Corporation and Samsung Electronics Singapore Pte. Ltd.) will purchase shares from GRAIL, INC.[7][9] - GRAIL's common stock is listed on the Nasdaq Global Select Market under the ticker symbol “GRAL”[9] - The issuance and sale of shares will be conducted under Section 4(a)(2) and/or Rule 506(b) of Regulation D of the 1933 Securities Act, exempting registration requirements[9] 1. Definitions; Interpretation. This chapter defines key terms and provides interpretation guidelines for the agreement, covering legal, operational, and transaction-specific terms to ensure uniform understanding - Key terms defined in the agreement include: 1933 Act, 1934 Act, Affiliate, Anti-Corruption Laws, Board of Directors, Business Collaboration Agreement, Business Day, Certificate of Incorporation, CFIUS, CFIUS Approval, CFIUS Notice, Claim, Closing, Closing Date, Code, Common Stock, Company, Company Permits, Company's Knowledge, Contract, Control, Cross-Receipt, Declaration, Designated Jurisdiction, Distribution, DPA, EDGAR system, Effectiveness Period, Enforceability Limitations, ERISA, Export Controls, FCPA, FDA, Financial Statements, GAAP, Government Official, Governmental Authority, HIPAA, Indemnified Damages, Indemnified Party, Indemnified Person, Intellectual Property, Investor, Law, Leased Real Property, Lien, Losses, Material Adverse Effect, Nasdaq, Negotiating Parties, Observer, OFAC, Ongoing Exclusivity, Order, Permit, Permitted Liens, Person, Personal Data, Plan, Privacy Laws, Privacy Statements, Proceeding, Process/Processing, Purchase Price, Real Property Leases, Registrable Securities, Registration Statement, Restricted Period, Rule 144, Samsung C&T, Samsung Electronics, Samsung Electronics Singapore, Sanction(s), SEC, SEC Filings, Shares, Shelf Registration Statement, Short Sales, SOC Agreement, Submissions, Subscription Amount, Subsequent Shelf Registration Statement, Subsidiary, Tax/Taxes, Tax Matters Agreement, Tax Return, Threshold Ownership Percentage, Threshold Shares, Transaction Documents, Transfer Agent, Violations[10][11][12][13][14][15][16][17][18][19][20][21][22][23][24][25][26][27][28][29][30][31][32][33][34][35][36][37][38][39][40][41][42][43][44][45][46][47][48][49][50][51][52][53][54][55][56][57][58][59][60] - Agreement interpretation principles include: "herein" and similar words refer to the entire agreement; "including" means "including without limitation"; "or" is not exclusive; "ordinary course of business" refers to the company's routine operations; "to the extent" means the degree; gender and number are interchangeable; references to agreements and statutes include all subsequent amendments; all monetary values are in US Dollars; and days refer to calendar days unless specified as business days[61][62][63] 1.1 Definitions. - “Shares” refer to the 785,154 shares of common stock purchased by Samsung C&T and Samsung Electronics Singapore, respectively[53] Stock Purchase Price | Metric | Amount | | :------------- | :--------------- | | Purchase Price | $70.05 per share | 1.2 Interpretation. - Words like “herein” and “hereto” refer to the entire agreement; “include” means “include without limitation”; “or” is not exclusive; “ordinary course of business” refers to the company’s routine business consistent with past practice; “to the extent” refers to the degree; gender and number are interchangeable[61] - References to the agreement and other documents include all subsequent amendments; references to statutes include all related regulations and amendments[62] - All monetary values are in US Dollars, and all payments are to be made in US Dollars; days refer to calendar days unless explicitly designated as business days[63] 2. Purchase and Sale of the Shares. This chapter stipulates that the company will issue and sell shares to investors, who will purchase them at the agreed price, free of any liens except those specified in the agreement or applicable securities laws - The company will issue and sell shares to investors, and investors will purchase shares at the purchase price[64] - The shares sold will be free of any liens, except for those arising under this agreement or applicable securities laws[64] 3. Closing. This chapter details the closing process for the share purchase and sale, including the closing date, location, and required documents and payments from each party to ensure a smooth transaction - Closing will occur on the seventh business day after the conditions in Sections 6.1 and 6.2 are satisfied or waived, or on another date mutually agreed upon by the company and investors[65] - Closing will be conducted via remote exchange of documents, unless otherwise agreed upon in writing by the parties[66] 3.1 Closing. - The closing date will be the seventh business day after the conditions in Sections 6.1 and 6.2 are satisfied or waived, or another date mutually agreed upon by the parties[65] - Closing will occur through remote exchange of documents, unless otherwise agreed upon in writing by the parties[66] 3.2 Investors' Closing Deliverables. - Investors must deliver a duly executed cross-receipt, the subscription amount via wire transfer, and copies of all permits required by Samsung C&T under Korean foreign exchange transaction laws[67] 3.3 Company's Closing Deliverables. - The company must deliver a duly executed cross-receipt, instructions to the transfer agent for share delivery, copies of all necessary permits, a copy of the notice of additional shares listing submitted to Nasdaq, a certificate confirming satisfaction of closing conditions, and a certificate from the company secretary regarding board resolutions and corporate charter[68][69] 4. Representations and Warranties of the Company. This chapter outlines the company's representations and warranties to investors, covering organizational structure, authorization, financial condition, legal and regulatory compliance, intellectual property, and absence of material adverse changes - The company warrants its legal existence and good standing as a Delaware entity, possessing all necessary corporate power and authority to conduct its business[70] - The company warrants it has obtained all corporate authorizations required to execute and deliver this agreement, fulfill its obligations, and issue shares[71] - The company warrants that the transaction will not violate its charter, any agreements, laws, or court orders, unless such violation would not have a Material Adverse Effect on the company[72][73] - The company warrants that all necessary consents, approvals, and authorizations for the issuance and sale of shares have been or will be obtained[74] - The company warrants that the issued shares will be validly authorized, fully paid, and non-assessable, free of liens (except as specified), and will not create obligations to issue other securities[75] - The company warrants that its capital structure, as disclosed in SEC filings, is accurate in all material respects, and all issued shares are validly authorized and issued without violating preemptive rights[76][77] - The company warrants that its SEC filings are true, complete, and compliant with the 1933 and 1934 Securities Acts, and its financial statements comply with GAAP and fairly present its financial condition[78][79][80] - The company warrants that no event or condition has occurred since June 30, 2025, that has had or could reasonably be expected to have a Material Adverse Effect on the company[82] - The company warrants that it and its subsidiaries have complied with all applicable laws in the past five years, received no material violation notices, and have not violated anti-corruption laws, sanctions, or export controls[83][84][85][86] - The company warrants it possesses all material permits necessary for its operations and has received no notices of permit revocation or modification that would have a Material Adverse Effect in the past three years[88][89] - The company warrants it has filed all material tax returns, paid all due taxes, adequately reserved for all taxes in financial statements, and has no material tax liens[90][91][92][93][94][95][96] - The company warrants that it or its applicable subsidiaries hold good, valid, and existing leasehold interests in leased real property, free of material liens, and do not own any real property[97] - The company warrants that since December 31, 2024, it holds good and valid title or leasehold interests in all personal property and assets (tangible or intangible) shown in financial statements, free of material liens, except for dispositions in the ordinary course of business[98] - The company warrants no pending or threatened litigation or orders against it or its subsidiaries, and no Nasdaq, SEC, or other regulatory body has imposed a trading halt or suspension on its common stock[99] - The company warrants that it and its subsidiaries are insured by financially responsible insurers with coverage deemed prudent and customary, and expect to renew policies or obtain similar coverage without Material Adverse Effect[100][101] - The company warrants no general solicitation or advertising for share sales, reliance on 1933 Securities Act exemptions, and compliance with Nasdaq rules for the transaction[102][103][104] - The company warrants it is not an "investment company," has not manipulated stock prices, and is not subject to "bad actor" disqualification under Rule 506(d)(1)(i-viii)[105][106] - The company warrants it is not engaged in the design, fabrication, or operation of "critical technology" or "covered investment critical infrastructure" as defined by the Defense Production Act of 1950, and has no future intent to do so[107][108] - The company warrants that no third party is entitled to any commission, fee, or other remuneration from the company or its subsidiaries due to the transactions contemplated by the transaction documents[109] - The company warrants its employee benefit plans comply with ERISA and the Code, it adheres to all applicable employment laws, and there are no material labor disputes or strikes[110] - The company warrants it owns or has valid rights to use all necessary intellectual property, which has not been ruled invalid or unenforceable, and its operations do not infringe on third-party IP[111][112] - The company warrants compliance with all applicable regulatory laws and regulations, including FDA rules, in the past three years, with all submissions being compliant[113][114] - The company warrants that clinical studies described in SEC reports comply with applicable laws and that no regulatory body has requested termination, suspension, or material modification of studies in the past three years[115] - The company warrants compliance with all applicable data privacy and security laws, including HIPAA and GDPR, in the past three years, and has implemented relevant policies and procedures[116] 4.1 Organization, Good Standing and Qualification. - The company is duly organized, validly existing, and in good standing under Delaware law, possessing all necessary corporate power and authority to own or lease its properties and assets and conduct business as described in SEC filings[70] - The company has not violated its certificate of incorporation or organizational documents and is qualified to do business and in good standing as a foreign entity in all necessary jurisdictions, unless such failure would not have a Material Adverse Effect on the company[70] 4.2 Authorization and Enforceability. - The company possesses all requisite corporate power and authority to execute and deliver this agreement, perform its obligations, and authorize, issue (or reserve for issuance), and deliver the shares[71] - This agreement has been duly executed and delivered by the company, constituting its valid and binding obligation, enforceable according to its terms, subject to enforceability limitations[71] 4.3 No Conflict. - The execution, delivery, or performance of the transaction documents by the company, and the consummation of the transactions contemplated therein, will not violate any provisions of the company's certificate of incorporation or bylaws[72] - The transactions will not conflict with any agreements, laws, regulations, or court orders, or result in a breach, termination right, change of control, or loss of benefits, unless such would not have a Material Adverse Effect on the company[72][73] 4.4 Consents. - The execution and delivery of the transaction documents by the company, and the issuance and sale of shares, do not require any consent, approval, authorization, filing, or order from any court or governmental authority, except for those obtained or to be obtained under the 1933 or 1934 Securities Acts, notices and applications to Nasdaq, and registration statements required by this agreement[74] - All notices, consents, authorizations, orders, filings, and registrations required to be delivered or obtained by the company prior to closing have been or will be obtained and remain in full force and effect at closing[74] 4.5 Valid Issuance. - The shares are duly and validly authorized and, upon issuance and payment under this agreement, will be validly issued, fully paid, and non-assessable, free of any liens (except as specified in the agreement or applicable securities laws), and not subject to any preemptive or similar rights of any person[75] - The issuance and sale of these shares will not obligate the company to issue common stock or other securities to any other person (other than investors), nor will it result in any adjustment to the exercise, conversion, exchange, or reset price of any outstanding securities[75] 4.6 Capitalization. - The authorized, issued, and outstanding capital stock of the company, as disclosed in its SEC filings, is accurate in all material respects[76] - All issued and outstanding shares of common stock are duly authorized and validly issued, fully paid, and non-assessable, and were issued without violating any un-waived preemptive or similar rights[77] - Except for restricted stock units, stock options, and other incentive equity or equity-linked awards disclosed in SEC filings, there are no outstanding rights, warrants, or options to acquire capital stock or other equity interests of the company or its subsidiaries[77] 4.7 SEC Filings; Financial Statements. - True and complete copies of SEC filings are available through the EDGAR system, and the company has filed all reports required under the 1933 and 1934 Securities Acts within the past 12 months[78] - SEC filings, at the time of submission, complied in all material respects with the requirements of the 1933 or 1934 Securities Acts and did not contain any material misstatements or omissions on their respective dates[78] - The financial statements comply in all material respects with applicable accounting requirements and SEC rules, fairly present the consolidated financial position, results of operations, and cash flows of the company and its subsidiaries, and conform to GAAP[79] - The company maintains a system of internal financial reporting controls designed to comply with the requirements of the 1934 Securities Act and provide reasonable assurance regarding the reliability of financial reporting and financial statement preparation[81] - Since December 31, 2024, no significant deficiencies or material weaknesses in the company's internal financial reporting controls have been identified, nor have there been any changes that materially affect internal controls[81] 4.8 No Material Adverse Change. - Since June 30, 2025, no event or condition has occurred that has had or could reasonably be expected to have a Material Adverse Effect on the company, except as explicitly disclosed in subsequent SEC filings[82] 4.9 Compliance with Laws. - The company and its subsidiaries have complied with all applicable laws in the past five years and have not received material notices of non-compliance[83] - The company and its directors, officers, employees, agents, or representatives have not violated any Anti-Corruption Laws in the past five years, received related allegations or notices, or bribed government officials[84] - The company and its subsidiaries or their representatives are not subject to any Sanctions, are not listed on any Sanctions lists, and are not located in any Sanctioned Jurisdiction[85] - The company and its subsidiaries or their representatives have not violated any Export Controls and have not received related allegations or notices[86] - The company has continuously complied with Nasdaq's continued listing requirements, with no pending or threatened litigation regarding the delisting of its common stock[87] 4.10 Permits. - The company and its subsidiaries possess all material permits necessary to conduct their respective businesses, unless the absence thereof would not have a Material Adverse Effect on the company[88] - Neither the company nor any subsidiary has received any written notice or proceeding in the past three years regarding the revocation or modification of any company permit, which, if adverse to the company or subsidiary, would not reasonably be expected to have a Material Adverse Effect on the company[89] 4.11 Tax Matters. - The company and its subsidiaries have filed all material tax returns and paid all taxes due, unless the failure to file or pay would not have a Material Adverse Effect on the company[90][91] - Adequate reserves have been made in the financial statements for all taxes, unless any inadequacy would not have a Material Adverse Effect on the company[92] - The company and its subsidiaries have timely withheld and collected all taxes due, unless the failure to withhold, collect, or pay would not have a Material Adverse Effect on the company[93] - There are no pending or threatened tax liens on the company or its assets or properties, except for taxes not yet due or those being contested in good faith with adequate reserves[94] - The company is not a party to any tax indemnity, tax sharing, tax reimbursement, or tax allocation contract, except for contracts in the ordinary course of business whose primary purpose is not tax-related, or the Tax Matters Agreement dated June 21, 2024[95] - The company has complied with the Tax Matters Agreement, and to the company's knowledge, no event has occurred that could lead to a breach of the Tax Matters Agreement by the company[96] 4.12 Real Properties; Title. - The company or applicable subsidiaries hold good, valid, and existing leasehold interests under lease agreements, free of material liens (except for Permitted Liens), unless such would not have a Material Adverse Effect on the company[97] - Neither the company nor any applicable subsidiary owns any real property[97] 4.13 Title to Assets. - Since December 31, 2024, except for asset dispositions in the ordinary course of business, the company and its subsidiaries have good and valid title or valid leasehold interests in all personal property and assets (tangible or intangible) shown in the financial statements, free of any liens (except for Permitted Liens), and are in good operating condition and suitable for ordinary business use, unless such would not have a Material Adverse Effect on the company[98] 4.14 No Proceedings. - There are no pending, initiated, or, to the company's knowledge, threatened proceedings or orders against the company or its subsidiaries or any of their properties, unless accurately described in SEC reports or would not have a Material Adverse Effect on the company[99] - Nasdaq, the SEC, or any other governmental or regulatory authority has not imposed a trading halt or suspension on the public trading of common stock[99] 4.15 Insurance. - The company and its subsidiaries are insured by insurance companies with recognized financial responsibility, with coverage amounts and risk coverage deemed prudent and customary in the company's reasonable judgment[100] - The company and its subsidiaries have no reason to believe they cannot renew existing policies upon expiration or obtain similar insurance from comparable insurers at a cost that would not have a Material Adverse Effect on the company[101] 4.16 Securities Matters. - Neither the company nor its representatives have engaged in any general solicitation or advertising, selling shares exclusively to investors[102] - Neither the company nor its representatives have conducted any securities issuance or sale that could affect the company's reliance on the exemption from registration under Section 4(a)(2) and/or Rule 506(b) of the 1933 Securities Act[103] - Assuming the accuracy of investor representations and warranties, the issuance and sale of shares to investors are exempt from the registration requirements of the 1933 Securities Act and do not violate Nasdaq rules[104] - The company is not and will not be required to register as an "investment company" after the sale of shares, and has not taken actions to stabilize or manipulate stock prices[105] - The company, its predecessors or affiliated issuers, directors, executives, or promoters are not subject to the "bad actor" disqualification provisions of Rule 506(d)(1)(i-viii), unless such disqualifying event is covered by Rule 506(d)(2) or (d)(3)[106] 4.17 CFIUS. - The company is not engaged in the design, fabrication, or operation, maintenance, supply, manufacturing, or servicing of "critical technology" or "covered investment critical infrastructure" as referred to in Section 721 of the Defense Production Act of 1950[107][108] - The company currently has no intention to engage in such activities in the future[108] 4.18 Brokers and Finders. - No person will have any valid right, interest, or claim to any commission, fee, or other remuneration from the company or any subsidiary due to the transactions contemplated by the transaction documents[109] 4.19 Employment Matters. - Except for matters that would not have a Material Adverse Effect on the company, each "employee benefit plan" of the company or its "controlled group" complies in all material respects with all currently applicable statutes, rules, and regulations, including ERISA and the Code[110] - The company and its subsidiaries comply with all applicable federal, state, local, and foreign employment laws, rules, and regulations, unless any non-compliance would not have a Material Adverse Effect on the company[110] - There are no labor disputes, strikes, or work stoppages against the company or its subsidiaries, and to the company's knowledge, no threats that could interfere with the company's business activities, unless such disputes, strikes, or stoppages would not have a Material Adverse Effect on the company[110] 4.20 Intellectual Property. - The company and its subsidiaries own or have valid and enforceable rights to use all inventions, patent applications, patents, trademarks, trade names, service names, service marks, trade dress, logos, domain names, social media identifiers and accounts, copyrights, trade secrets, know-how, software, databases and data collections, and other intellectual property described in SEC reports and necessary for their respective businesses, unless any failure to own, hold, or acquire such intellectual property would not have a Material Adverse Effect on the company[111][112] - The intellectual property of the company and its subsidiaries has not been adjudicated by a court of competent jurisdiction to be invalid or unenforceable in whole or in part[112] - To the company's knowledge, no third party is infringing any intellectual property, and the business conduct of the company and its subsidiaries does not infringe, misappropriate, or otherwise violate any third party's intellectual property, unless such would not have a Material Adverse Effect on the company[112] - The company and its subsidiaries have taken all reasonable measures to protect, maintain, and safeguard their intellectual property, and have entered into binding written agreements with employees and independent contractors involved in developing significant intellectual property, requiring them to assign all ownership interests and rights in such intellectual property to the company or its subsidiaries[112] 4.21 Regulatory Compliance. - The company and its subsidiaries have not failed to submit any required documents, statements, lists, registrations, reports, or submissions to applicable governmental authorities (including the FDA) within the three years prior to the agreement date, unless such failure would not have a Material Adverse Effect on the company[113] - All such submissions complied with applicable laws at the time of submission, and no claims of deficiencies regarding such submissions have been received from any regulatory authority, unless such non-compliant submissions or deficiencies would not have a Material Adverse Effect on the company[114] - The company has been and is currently in compliance in all material respects with the US Federal Food, Drug, and Cosmetic Act and applicable rules and regulations of the FDA and other federal, state, local, and foreign governmental authorities within the three years prior to the agreement date[114] 4.22 Clinical Studies. - Preclinical studies and tests and clinical trials described in SEC reports have been conducted in all material respects according to laws applicable to the products or product candidates being developed by the company, and if ongoing, are currently ongoing[115] - The company has not received any written notice or communication from the FDA or any foreign, state, or local governmental authority or any institutional review board within the three years prior to the agreement date requesting the termination, suspension, clinical hold, or material modification of any test, study, or trial[115] 4.23 Compliance with Data Privacy Laws. - Except for circumstances not reasonably expected to have a Material Adverse Effect on the company, the company and its subsidiaries currently and within the past three years have complied with applicable state, federal, and foreign data privacy and security laws and regulations, including HIPAA and the EU General Data Protection Regulation, regarding the collection, use, storage, retention, disclosure, transmission, disposal, or any other processing of personal data[116] - The company and its subsidiaries have developed and adhered to data privacy and security policies and procedures, and have provided privacy statements to customers, employees, and third-party vendors[116] - To the company's knowledge, the disclosures in the privacy statements are not inaccurate, misleading, or in violation of any privacy laws[116] 5. Representations and Warranties of the Investors and Samsung Electronics. This chapter outlines the investors' and Samsung Electronics' representations and warranties to the company, covering their organization, authorization, non-conflict, investment purpose, risk assessment, information disclosure, accredited investor status, and absence of general solicitation - Investors and Samsung Electronics warrant their due organization and valid existence under the laws of their respective jurisdictions of organization[117] - Investors and Samsung Electronics warrant they possess all corporate power and authority required to execute and deliver the transaction documents, perform their obligations, and acquire shares[118] - Investors and Samsung Electronics warrant that executing, delivering, or performing the transaction documents, and completing the contemplated transactions, will not violate their organizational documents, any laws or court orders, or any material contracts, and will not result in any liens[119][120] - Investors and Samsung Electronics warrant that executing and delivering the transaction documents, and performing their terms and conditions, do not require any consent, action, or filing from any person or governmental authority, except for filings required by Samsung C&T under Korean foreign exchange regulations[121] - Investors warrant they are purchasing shares for their own account, not as nominees or agents, and have no intent to resell or distribute shares in violation of the 1933 Securities Act[122] - Investors warrant they possess the knowledge and experience to evaluate the merits and risks of investing in shares, assume economic risks, and protect their own interests, acknowledging the high risk and potential loss of investment[123] - Investors warrant they have had the opportunity to receive, review, and understand all relevant information, conducted independent due diligence, and did not rely on any oral or written representations from company affiliates (except as explicitly stated in this agreement)[124][125] - Investors warrant they are "Accredited Investors" under Rule 501 of the 1933 Securities Act at the time of the offer to purchase shares and as of the agreement date and closing date[126] - Investors warrant their purchase or acquisition of shares is not a result of any form of general solicitation or general advertising[127] - Investors and Samsung Electronics acknowledge the opportunity to review transaction documents and the transaction with their own legal, investment, and tax advisors[128] - Investors and Samsung Electronics warrant that neither they nor their representatives have engaged in any direct or indirect trading of company securities (including any short sales) from their initial contact with the company until the signing of this agreement[129] - Investors understand that shares are issued and sold under specific exemptions from US federal and state securities laws, and the company relies on the truth and accuracy of investor representations and warranties to determine exemption availability, and investors warrant they will only resell shares in compliance with all applicable laws[130][131] - No person will have any valid right, interest, or claim to any commission, fee, or other remuneration from investors or Samsung Electronics due to the transactions contemplated by the transaction documents[132] - In the two-year period ending June 24, 2024, neither investors, Samsung Electronics, nor any of their negotiating parties have communicated with Illumina, Inc., the company, or their respective negotiating parties regarding any merger or acquisition matters[133] 5.1 Organization and Existence. - Investors and Samsung Electronics are duly organized and validly existing entities under the laws of their respective jurisdictions of organization[117] 5.2 Authorization and Enforceability. - Investors and Samsung Electronics possess all requisite corporate power and authority to execute and deliver the transaction documents, perform their obligations, and acquire the shares[118] - The transaction documents have been duly executed and delivered by investors or Samsung Electronics, constituting their valid and binding obligations, enforceable according to their terms, subject to enforceability limitations[118] 5.3 No Conflict. - The execution, delivery, or performance of the transaction documents by investors or Samsung Electronics, and the consummation of the transactions contemplated therein, will not violate their organizational documents, any laws or court orders, or any material contracts, and will not result in any liens[119][120] 5.4 Consents. - The execution and delivery of the transaction documents by investors or Samsung Electronics, and the performance of their terms and conditions, do not require any consent, action, or filing from any person or governmental authority, except for filings required by Samsung C&T under Korean foreign exchange regulations[121] 5.5 Investment Purpose. - Investors are purchasing shares for their own account, not as nominees or agents, and have no intent to resell or distribute shares in violation of the 1933 Securities Act[122] - Investors reserve the right to dispose of shares at any time under a registration statement filed pursuant to Section 7.8 of this agreement or an applicable exemption under the 1933 Securities Act[122] - Neither investors nor their affiliates are broker-dealers registered with the SEC or entities required to be registered[122] 5.6 Evaluation of Risks. - Investors possess the knowledge and experience to evaluate the merits and risks of investing in shares, assume economic risks, and protect their own interests[123] - Investors acknowledge that their investment in the company involves high risk and may result in the loss of all or part of their investment[123] 5.7 Disclosure of Information. - Investors have had the opportunity to receive, review, and understand all relevant information and have conducted independent due diligence[124] - Investors have not relied on any oral or written representations from company affiliates (except as explicitly stated in this agreement) in making their investment decision[125] - Investors have sought accounting, legal, and tax advice as they deemed necessary to make an informed decision regarding the acquisition of shares[125] 5.8 Accredited Investor. - Investors are "Accredited Investors" under Rule 501 of the 1933 Securities Act at the time of the offer to purchase shares and as of the agreement date and closing date[126] - Investors are capable of properly assessing the risks and merits of their share purchase[126] 5.9 No General Solicitation. - Investors' purchase or acquisition of shares is not a result of any form of general solicitation or general advertising[127] 5.10 Consultation with Own Advisors. - Investors and Samsung Electronics acknowledge the opportunity to review the transaction documents and the transaction with their own legal, investment, and tax advisors[128] 5.11 Trading Activities. - Neither investors nor Samsung Electronics or their representatives have engaged in any direct or indirect trading of company securities (including any short sales involving company securities) from their initial contact with the company until the signing of this agreement[129] 5.12 Reliance on Exemptions; Resale of Shares. - Investors understand that shares are issued and sold under specific exemptions from US federal and state securities laws, and the company relies on the truth and accuracy of investor representations and warranties to determine the availability of such exemptions[130] - Investors warrant they will only resell shares purchased or acquired from the company in a manner compliant with all applicable US federal and state securities laws[131] 5.13 Brokers and Finders. - No person will have any valid right, interest, or claim to any commission, fee, or other remuneration from investors or Samsung Electronics due to the transactions contemplated by the transaction documents[132] 5.14 Other Matters. - In the two-year period ending June 24, 2024, neither investors, Samsung Electronics, nor any of their negotiating parties have communicated with Illumina, Inc., the company, or their respective negotiating parties regarding any merger or acquisition matters[133] 6. Closing Conditions. This chapter specifies the prerequisites for investors and the company to complete the transaction, including legal and regulatory approvals, accuracy of representations, covenant performance, and absence of material adverse changes - Investors' and Samsung Electronics' obligations are contingent upon: the transaction not being prohibited by law or order; company representations and warranties being true and accurate in all material respects; the company having performed all material covenants and agreements; the company having delivered all closing documents; no Material Adverse Effect occurring since the agreement date; the Business Collaboration Agreement and Strategic Operational Collaboration Agreement being signed; and CFIUS approval being obtained[134][135][136][137][138][139][141] - The company's obligations are contingent upon: the transaction not being prohibited by law or order; investor and Samsung Electronics representations and warranties being true and accurate in all material respects; investors and Samsung Electronics having performed all material covenants and agreements; investors and Samsung Electronics having delivered all closing documents; the Business Collaboration Agreement and Strategic Operational Collaboration Agreement being signed; and CFIUS approval being obtained[140][141][142][143] - No party may refuse to complete the transaction or terminate this agreement based on its own breach of this agreement causing any condition in Section 6 to fail[144] 6.1 Conditions to Obligations of the Investors and Samsung Electronics. - The transaction must not be prohibited by applicable law or order, and no written proceeding initiated or threatened by a governmental authority[134] - The company's representations and warranties in Section 4 must be true and accurate in all material respects as of the closing date[135] - The company must have performed and complied in all material respects with all covenants and agreements required to be performed by it on or before the closing date[136] - The company must have delivered all deliverables specified in Section 3.3[136] - No event or condition has occurred and is continuing since the date of this agreement that has had or could reasonably be expected to have a Material Adverse Effect on the company, individually or in the aggregate[137] - The Business Collaboration Agreement must have been duly executed by the company and Samsung C&T by January 31, 2026[138] - The Strategic and Operational Collaboration Agreement (SOC Agreement) must have been duly executed by the company and Samsung Electronics by January 31, 2026[139] - CFIUS Approval must have been obtained[141] 6.2 Conditions to Obligations of the Company. - The transaction must not be prohibited by applicable law or order, and no written proceeding initiated or threatened by a governmental authority[140] - Each investor's and Samsung Electronics' representations and warranties in Section 5 must be true and accurate in all material respects as of the closing date[141] - Each investor and Samsung Electronics must have performed and complied in all material respects with all covenants and agreements required to be performed by them on or before the closing date[142] - Each investor and Samsung Electronics must have delivered all deliverables specified in Section 3.2[142] - The Business Collaboration Agreement must have been duly executed by the company and Samsung C&T by January 31, 2026[143] - The Strategic and Operational Collaboration Agreement (SOC Agreement) must have been duly executed by the company and Samsung Electronics by January 31, 2026[143] - CFIUS Approval must have been obtained[143] 6.3 Frustration of Closing Conditions. - No party may refuse to complete the transaction or terminate this agreement based on its own breach of this agreement causing any condition in Section 6 to fail[144] 7. Covenants and Agreements. This chapter details the post-agreement covenants and agreements, including observer appointment rights, negotiation of collaboration agreements, CFIUS notification, Nasdaq listing, share sale restrictions, blue sky law compliance, and registration rights - Investors have the right to appoint a non-voting board observer, subject to specific shareholding thresholds and exclusivity conditions[145][147][148] - Samsung C&T and the company will negotiate and use commercially reasonable efforts to sign the Business Collaboration Agreement; Samsung Electronics and the company will use commercially reasonable efforts to sign the Strategic Operational Collaboration Agreement[149][150] - Investors, Samsung Electronics, and the company will promptly submit a statement to CFIUS and, if required or agreed, a joint voluntary notice, cooperating to provide all necessary information[151][152] - Parties will use commercially reasonable efforts to obtain CFIUS approval, but are not required to violate laws, sell assets, agree to restrictions on investor or Samsung Electronics assets, or accept conditions causing a Material Adverse Effect on the company, investors, or Samsung Electronics[153] - The company will use commercially reasonable efforts to maintain its common stock listing and trading on Nasdaq and comply with Nasdaq's reporting, filing, and other obligations[155] - During the 180-day "Restricted Period" from the agreement date, investors and their affiliates may not directly or indirectly sell, transfer, or otherwise dispose of shares without the company's prior consent[156] - The company will take necessary actions to obtain exemptions or qualifications under applicable state securities or "Blue Sky" laws for the sale of shares to investors and subsequent resale of registrable securities[157] - The company will use commercially reasonable efforts to file a shelf registration statement covering the resale of all registrable securities with the SEC within 180 days after closing and have it declared effective as soon as practicable[158][159][160] - If the shelf registration statement ceases to be effective during its term, the company will promptly re-effect it or file a subsequent shelf registration statement[161] - Investors must provide the company with information about themselves, their securities, and disposition methods, and execute relevant documents to assist with registration[162] - The company will assist investors in registering or qualifying registrable securities for sale in various jurisdictions, but is not required to register its business or incur general taxation unnecessarily[163] - The company will notify investors when the registration statement becomes effective, when a stop order is issued, when qualification is suspended, or when modifications to the registration statement are required[165] - The company will pay registration and filing fees, securities law compliance fees, company legal fees, and accounting fees; investors will bear other selling expenses such as brokerage fees and their own legal fees[166][167] - Samsung Electronics will take all necessary actions to ensure its wholly-owned subsidiary, Samsung Electronics Singapore, fulfills its obligations under the transaction documents[168] 7.1 Observer Appointment Right. - For three years after the closing date, as long as investors collectively hold all shares and Samsung C&T's exclusivity obligation remains in effect, investors have the right to designate a non-voting board observer[145] - After three years from the closing date, as long as investors collectively hold at least 5% of the common stock and the exclusivity obligation remains in effect, investors still have the right to designate an observer[145] - The observer must be pre-approved by the company, and may be removed for cause by joint written instruction from Samsung C&T and Samsung Electronics, or by the company or the board[147] - The observer has the right to attend all regular board meetings and receive all notices, minutes, and other materials, but may be excluded from certain executive sessions or discussions involving conflicts of interest, confidentiality agreements, or legal restrictions[147][148] - The observer must sign a confidentiality agreement and may only share confidential information with investors and Samsung Electronics according to the agreement's terms[148] 7.2 Business Collaboration Agreement and SOC Agreement. - Samsung C&T and the company will negotiate in good faith and use commercially reasonable efforts to execute the Business Collaboration Agreement and any ancillary documents[149] - Samsung Electronics and the company will use commercially reasonable efforts to execute the Strategic Operational Collaboration Agreement and any ancillary documents[150] 7.3 CFIUS Notice. - Investors, Samsung Electronics, and the company will promptly submit a declaration to CFIUS and cooperate to provide any information requested by CFIUS or agreed upon by the parties[152] - If required by CFIUS or agreed by the parties, a draft joint voluntary notice will be submitted to CFIUS as soon as practicable, followed by a formal notice upon receiving feedback, and other required documents and information will be submitted promptly[152] - The parties will use their reasonable best efforts to cooperate, including providing copies of filings before submission, consulting on meetings, and timely informing each other of communication status[152] 7.4 CFIUS Approval. - Investors, Samsung Electronics, and the company will use commercially reasonable efforts to take all actions required by CFIUS to obtain CFIUS Approval[153] - No party is required to take actions that violate laws, sell assets or businesses, agree to restrictions on investor or Samsung Electronics assets or businesses, or accept conditions that would have a Material Adverse Effect on the company, investors, or Samsung Electronics[153][154] - Each party will pay its own costs and expenses for obtaining CFIUS Approval, but investors and Samsung Electronics will be responsible for paying the CFIUS filing fee[154] 7.5 Nasdaq Listing. - The company will use commercially reasonable efforts to maintain the listing and trading of its common stock on Nasdaq and comply with Nasdaq's reporting, filing, and other obligations[155] 7.6 Sale of Shares. - During the 180-day period from the agreement date (the “Restricted Period”), investors and their affiliates may not directly or indirectly sell, transfer, or otherwise dispose of shares without the company's prior consent[156] - Investors may freely sell or transfer shares to another investor within the Restricted Period, free from this restriction[156] 7.7 Blue Sky. - The company will take necessary actions to obtain exemptions or qualifications under applicable state securities or “Blue Sky” laws for the sale of shares to investors and the subsequent resale of registrable securities by investors[157] - The company is not required to register its business, incur general taxation, or submit a general consent to service of process in any jurisdiction as a result[157] 7.8 Registration Rights. - The company will use commercially reasonable efforts to file a shelf registration statement covering the resale of all registrable securities with the SEC within 180 days after closing and have it declared effective as soon as practicable[158][159][160] - If the shelf registration statement ceases to be effective during its term, the company will promptly re-effect it or file a subsequent shelf registration statement[161] - Investors must provide the company with information about themselves, their securities, and disposition methods, and execute relevant documents to assist with registration[162] - The company will assist investors in registering or qualifying registrable securities for sale in various jurisdictions, but is not required to register its business or incur general taxation unnecessarily[163] - The company will notify investors when the registration statement becomes effective, when a stop order is issued, when qualification is suspended, or when modifications to the registration statement are required[165] - The company will pay registration and filing fees, securities law compliance fees, company legal fees, and accounting fees; investors will bear other selling expenses, such as brokerage fees and their own legal fees[166][167] 7.9 Samsung Electronics. - Samsung Electronics will take all necessary actions to ensure its wholly-owned subsidiary, Samsung Electronics Singapore, fulfills its obligations under the transaction documents[168] 8. Registration Indemnification. This chapter defines the indemnification liabilities of the company and investors for misstatements or omissions in registration statements, including procedures for claims, defense, and settlement - The company will indemnify investors and their controlling persons for losses arising from any misrepresentation or omission in the registration statement, preliminary prospectus, or final prospectus[169] - Company indemnification does not apply to losses arising from information provided by investors, corrected prospectuses, or settlements made without the company's written consent[169][170] - Investors will indemnify the company and its directors, officers, and controlling persons for losses arising from any misrepresentation or omission in the registration statement, preliminary prospectus, or final prospectus, based on information provided in writing by investors and approved for use in the registration statement[171] - Investors' indemnification liability amount shall not exceed the net proceeds received from the sale of registrable securities[171] - The indemnified party must promptly notify the indemnifying party of any claim, and the indemnifying party has the right to participate in and control the defense, but the indemnified party may retain its own counsel if a conflict of interest exists[172] - The indemnifying party may not settle or consent to judgment without the indemnified party's consent, unless the settlement or judgment imposes no liability or obligation on the indemnified party, includes a full and unconditional release, and contains no admission of fault[173] - Indemnification will be made through periodic payments, and the indemnification agreement is an additional right; if not prohibited or limited by law, the indemnifying party will contribute to the maximum extent permitted by law[174][175][176][177] 8.1 Registration Indemnification. - The company will indemnify investors and their controlling persons for losses arising from any misrepresentation or omission in the registration statement, preliminary prospectus, or final prospectus[169] - Investors will indemnify the company and its directors, officers, and controlling persons for losses arising from any misrepresentation or omission in the registration statement, preliminary prospectus, or final prospectus, based on information provided in writing by investors and approved for use in the registration statement[171] - The indemnified party must promptly notify the indemnifying party of any claim, and the indemnifying party has the right to participate in and control the defense, but the indemnified party may retain its own counsel if a conflict of interest exists[172] - Indemnification will be made through periodic payments, and the indemnification agreement is an additional right; if not prohibited or limited by law, the indemnifying party will contribute to the maximum extent permitted by law[174][175][176][177] 9. Termination. This chapter outlines the conditions for pre-closing termination of the agreement, including mutual written consent, governmental prohibitions, and material breach by either party, and specifies the effects of such termination - The agreement may be terminated before closing by: mutual written consent; any governmental authority issuing a law or order prohibiting the transaction; or any party's material breach not cured within 10 business days[178] - Upon termination, except for Section 8 (Indemnification), Section 9.2 (Effect of Termination), and Section 10 (Miscellaneous), the agreement will become void, and no party will have liability, but liability or damages caused by any party's breach will not be affected[179][180] 9.1 Termination. - The agreement may be terminated before closing by: mutual written consent; any governmental authority issuing a law or order prohibiting the transaction; or any party's material breach not cured within 10 business days[178] 9.2 Effect of Termination. - Upon termination, except for Section 8 (Indemnification), Section 9.2 (Effect of Termination), and Section 10 (Miscellaneous), the agreement will become void, and the parties will have no liability[180] - Any party's liability or damages caused by breach will not be affected by termination[180] 10. Miscellaneous. This chapter contains general provisions of the agreement, covering succession, governing law, notices, expenses, amendments, publicity, severability, entire agreement, headings, arm's length negotiations, and counterparts - The agreement may not be assigned without prior written consent from the company, Samsung Electronics, or each investor, but investors and Samsung Electronics may assign their rights and obligations to affiliates[181] - The agreement is governed by the internal laws of New York State, and any disputes will be resolved in New York State courts, with parties waiving jury trial rights[182][183] - All notices must be in writing and sent via personal delivery, overnight courier, email, or registered mail to specified addresses[183][184][185] - Each party will pay its own costs and expenses, but the company will pay all transfer agent fees related to the sale and issuance of shares[186] - Any provision of the agreement may only be amended or waived with the written consent of the company, Samsun