brhc10031497

5.17 Cash Election. Acquirer may elect, in its sole discretion, to pay the entire Merger Consideration in cash (a “Cash Election”) by delivering a notice to the Company at any time prior to five (5) Business Days before the Closing Date.

ARTICLE VI

Conditions to the Merger

6.1 Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of each party hereto to consummate the Transactions shall be subject to the satisfaction or waiver in writing at or prior to the Closing of each of the following conditions:

(a) Company Stockholder Approval. The Company Stockholder Approval shall have been duly and validly obtained.

(b) Illegality. No Order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger on the terms contemplated herein shall be in effect, and no action shall have been taken by any Governmental Entity seeking any of the foregoing, and no Law or Order shall have been enacted, entered, enforced or deemed applicable to the Merger that makes the consummation of the Merger illegal.

6.2 Additional Conditions to Obligations of the Company. The obligations of the Company to consummate the Transactions shall be subject to the satisfaction or waiver at or prior to the Closing of each of the following conditions (it being understood and agreed that each such condition is solely for the benefit of the Company and may be waived by the Company in writing in its sole discretion without notice or Liability to any Person):

(a) Representations and Warranties. The representations and warranties made by Acquirer and Merger Sub in Section 3.1 (Organization and Standing) and Section 3.2(a) (Authority) shall be true and correct in all respects on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date or dates, which representations and warranties shall be so true and correct with respect to such specified date or dates), and the other representations and warranties made by Acquirer and Merger Sub herein shall be true and correct in all respects (without giving effect to any limitation as to “materiality,” “material,” “in all material respects,” or “Material Adverse Effect,” or other similar terms set forth therein) on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such dates (except for representations and warranties that address matters only as to a specified date or dates, which representations and warranties shall be true and correct with respect to such specified date or dates), other than where the circumstances causing such failures to be so true and correct have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect with respect to Acquirer.

(b) Covenants. Acquirer shall have performed and complied in all material respects with all covenants, agreements and obligations herein required to be performed and complied with by Acquirer at or prior to the Closing.

6.3 Additional Conditions to the Obligations of Acquirer. The obligations of Acquirer and Merger Sub to consummate the Transactions shall be subject to the satisfaction or waiver at or prior to the Closing of each of the following conditions (it being understood and agreed that each such condition is solely for the benefit of Acquirer and Merger Sub and may be waived by Acquirer (on behalf of itself and/or Merger Sub) in writing in its sole discretion without notice or Liability to any Person):

(a) Representations and Warranties.

(i) The Specified Representations (excluding, for purposes of this Section 6.3(a)(i), Section 2.2 (the “Company Capitalization Representations”) and the Tax Representations) shall be true and correct in all respects on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such dates (except for representations and warranties that address matters only as to a specified date or dates, which representations and warranties shall be so true and correct with respect to such specified date or dates).

(ii) The representations and warranties of the Company set forth the Company Capitalization Representations shall be true and correct in all respects as of the date of this Agreement and shall be true and correct in all respects on and as of the Closing Date with the same force and effect as if made on and as of such date, except, in each case, (x) for such inaccuracies which are de minimis, individually or in the aggregate or (y) for those representations and warranties which address matters only as of a particular date (which representations and warranties shall have been true and correct in all respects, subject to the qualifications as set forth in the preceding clause (x), as of such particular date).

(iii) All other representations and warranties of the Company herein shall be true and correct in all respects (without giving effect to any limitation as to “materiality,” “material,” “in all material respects,” or “Material Adverse Effect,” or other similar terms set forth therein) on and as of the Agreement Date and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties that address matters only as to a specified date or dates, which representations and warranties shall be so true and correct with respect to such specified date or dates), other than where the circumstances causing such failures to be so true and correct have not had and would not reasonably be expected to have, a Material Adverse Effect with respect to the Company.

(b) Covenants. The Company shall have performed and complied in all material respects with all covenants, agreements and obligations herein required to be performed and complied with by the Company at or prior to the Closing.

(c) No Material Adverse Effect. Since the Agreement Date, there shall not have occurred a Material Adverse Effect with respect to the Company.

(d) Written Consents; Joinders; Lock-Up Agreements. The Company shall have received, and delivered to Acquirer, fully executed (i) Written Consents from Company Stockholders holding, in the aggregate, not less than [***] of the aggregate number of shares of Company Capital Stock outstanding as of immediately prior to the Effective Time which constitute an effective waiver of such Company Stockholders’ appraisal rights; (ii) Joinder Agreements and AIQ from Company Stockholders holding not less than [***] of the aggregate number of shares of Company Capital Stock outstanding immediately prior to the Effective Time; and (iii) Lock-Up Agreements from 100% of the Company Stockholders receiving shares of Acquirer Common Stock.

(e) Appraisal Rights. Company Stockholders holding, in the aggregate, no more than [***] percent [***] of the aggregate number of shares of Company Capital Stock shall not have waived their appraisal or dissenters’ rights immediately prior to the Effective Time.

***Certain Confidential Information Omitted

(f) Audited Financial Statements. The Company shall have delivered to Acquirer audited financial statements for the fiscal year ended December 31, 2020 and, if the Closing shall occur after November 15, 2021, interim financial statements for the nine (9) month period ended September 30, 2021 and any other financial statements of Company required to be filed by Acquirer with the SEC in connection with the Transaction or Resale Registration Statement (the “Required Financials”), each in a form that will allow Acquirer to disclose such Required Financials as required pursuant to Rule 3-05 of Regulation S-X of the Securities Act at least 20 days prior to Closing and the Company shall have complied with its obligations in Section 5.15 with respect to the preparation of pro forma financial statements.

(g) Auditor Consent. The Company shall have delivered to Acquirer the consent of the Company’s independent auditors, Grossman Yanak & Ford LLP, in a form reasonably acceptable to Acquirer, to the inclusion of the Required Financials and such auditors’ written report thereon, in any report required to be filed by Acquirer with the SEC for any filing to be made within five business days of Closing.

(h) Employees. (i) Each of the Key Employees shall have remained continuously employed from the Agreement Date through the Closing and shall have signed an Offer Letter, each of which shall continue to be in full force and effect, and no action shall have been taken by such individual to rescind any such agreements and (ii) [***] of all Company Employees and independent contractors of the Company who are Company Employees or independent contractors of the Company as of the Agreement Date shall be Continuing Employees or shall continue as independent contractors of the Surviving Corporation, Acquirer or one of its Affiliates.

(i) Section 280G Matters. The Company shall have delivered to Acquirer the notification and evidence required by Section 5.14.

(j) Third Party Consents. The Company shall have received all necessary consents, waivers and approvals of third parties under any Contract with respect to the Merger as described in Schedule 6.3(j) of the Company Disclosure Letter.

(k) Other Deliveries. Acquirer will have received from the Company each of the items set forth in Section 1.2(b).

ARTICLE VII

Termination

7.1 Termination. At any time prior to the Closing, this Agreement may be terminated, and the Merger abandoned by authorized action taken by the terminating party, whether before or after the Company Stockholder Approval is obtained:

(a) by mutual written consent of Acquirer and the Company;

(b) by either Acquirer or the Company, by written notice to the other, if the Closing shall not have occurred on or before November 30, 2021 (the “Termination Date”); provided that the right to terminate this Agreement shall not be available to any party whose breach of any covenant, agreement or obligation hereunder is the principal cause of, or directly resulted in, the failure of the Closing to occur on or before such date; provided, further, that if the Closing has not occurred by the Termination Date due to the failure of the conditions in Section 6.3(f) or Section 6.3(e) to be satisfied, then the Termination Date shall be automatically extended by thirty (30) days for up to two 30-day extensions;

***Certain Confidential Information Omitted

(c) by either Acquirer or the Company, by written notice to the other, if any Order of a Governmental Entity of competent authority preventing the consummation of the Merger shall have become final and non-appealable;

(d) by Acquirer, by written notice to the Company, if (i) upon a breach of any covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become inaccurate, in either case such that the condition set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate; provided that if such breach or inaccuracy is curable within [***] days (but not later than the Termination Date) by the Company, then Acquirer may not terminate this Agreement pursuant to this Section 7.1(d) for [***] days (or until the Termination Date) after delivery of written notice from Acquirer to the Company of such breach or inaccuracy (it being understood that Acquirer may not terminate this Agreement pursuant to this Section 7.1(d) if such breach or inaccuracy is cured during such period, or (ii) the Company shall have materially breached Section 5.1 or Section 5.2;

(e) by the Company, by written notice to Acquirer, upon a breach of any covenant or agreement on the part of Acquirer set forth in this Agreement, or if any representation or warranty of Acquirer shall have become inaccurate, in either case such that the condition set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become inaccurate; provided that if such breach or inaccuracy is curable within [***] days (but not later than the Termination Date) by Acquirer, then the Company may not terminate this Agreement pursuant to this Section 7.1(e) for [***] days (or until the Termination Date) after delivery of written notice from the Company to Acquirer of such breach or inaccuracy (it being understood that the Company may not terminate this Agreement pursuant to this Section 7.1(e) if such breach or inaccuracy is cured during such period); and

(f) by the Acquirer, if the Written Consent is not delivered within one (1) hour of the execution of this Agreement.

7.2 Effect of Termination. In the event of termination of this Agreement as provided in Section 7.1, this Agreement shall forthwith become void and there shall be no Liability on the part of Acquirer, Merger Sub, the Company, the Stockholders’ Agent or their respective officers, directors, stockholders or Affiliates; provided that (i) Section 5.3 (Confidentiality; Public Disclosure), Section 5.9 (Expenses), this Section 7.2 (Effect of Termination), Article IX (General Provisions) and any related definition provisions in or referenced in Exhibit A and the Confidentiality Agreement shall remain in full force and effect and survive any termination of this Agreement and (ii) nothing herein shall relieve any party hereto from Liability in connection with any Fraud by or on behalf of, or a willful breach of any covenant, agreement or obligation of, such party herein.

ARTICLE VIII

Indemnification

8.1 Indemnification by Company Stockholders. Subject to the other provisions of this Article VIII, following the Closing, the Company Stockholders shall severally and not jointly indemnify Acquirer and the Surviving Corporation, their respective Affiliates, and each of their respective officers, directors, employees, stockholders, agents, other representatives, successors and permitted assigns (each a “Acquirer Indemnified Party”) in respect of, and hold them harmless against, any Damages suffered, incurred or sustained by any Acquirer Indemnified Party resulting from or arising out of:

(a)	any inaccuracy in or breach of any representation or warranty made by the Company in Article II of this Agreement as of the Agreement Date and as if made on the Closing Date;

***Certain Confidential Information Omitted

(b) any breach or nonfulfillment by the Stockholders’ Agent of any of its covenants, obligations or agreements contained in this Agreement;

(c) any proceeding in respect of Dissenting Shares and any payments to any Person that was a holder of Company Capital Stock immediately prior to the Effective Time in respect of such Person’s Dissenting Shares, to the extent such payments exceed the amount to which such Person would have been entitled pursuant to Section 1.3(b) in respect of such Dissenting Shares if such Person had not exercised appraisal or dissenters rights in respect thereof;

(d) any Pre-Closing Taxes;

(e) any claims by (A) any current or former Company Stockholder or alleged current or former holder of any interest or security of the Company (including any Person alleged to hold Company Options), relating to or arising out of (x) this Agreement or the transactions, including the allocation, misallocation, miscalculation or inaccuracy of the Merger Consideration, any Earnout Payments and/or Escrow Distributions amongst the Company Stockholders, including as a result of any inaccuracy or error in the Spreadsheet and/or the Earnout Payment Schedule, if applicable or (y) such Person’s status or alleged status as an equity holder or ownership of interests or securities in the Company at any time at or prior to the Closing, whether for breach of fiduciary duty or otherwise, or (B) any Person to the effect that such Person is entitled to any interest or security or any payment in connection with the transactions contemplated by this Agreement other than as specifically provided for in this Agreement;

(f) any claim by a current or former holder of Company Capital Stock or Company Options or any other Person, seeking to assert, or based upon: (A) ownership or rights to ownership of any shares of capital stock or other equity securities of the Company, including any claims for breaches of fiduciary duties owed to such Person in such capacity; or (B) any rights of a stockholder or other equity holder (other than in the case of clauses “(A)” and “(B)” claims based on the rights of any such Person to receive a portion of the payments contemplated to be made to such Person hereby as and to the extent set forth herein), including any option, preemptive rights or rights to notice or to vote;

(g) any inaccuracies or errors in or omissions from the Spreadsheet or the Estimated Closing Statement, including errors in the calculations of the Company Cash, the Company Debt, the Unpaid Company Transaction Expenses, the Closing Working Capital, the Aggregate Exercise Amount or any of their respective constituent parts, to the extent not fully discharged at Closing or taken into account in the calculation of the Merger Consideration (as adjusted pursuant to Section 1.6);

(h) any claim, Liabilities or obligations under Section 5.18 or the matters covered thereby, including any claim under any Indemnification Agreement; and

(i) any Reimbursement Obligations.

For the avoidance of doubt, the parties hereby expressly agree that Acquirer and the other Acquirer Indemnified Parties may (but are not obligated to) recover amounts under this Section 8.1 by recourse against the then remaining Indemnity Escrow Funds held in the Escrow Account and by offset against any Earnout Payment or claims against the Company Securityholders.

8.2 Indemnification by Acquirer. Subject to the other provisions of this Article VIII, following the Closing, Acquirer shall indemnify the Company Securityholders, their respective Affiliates, and each of their respective officers, directors, employees, stockholders, members, managers, partners, agents, other representatives, successors and permitted assigns (each, a “Company Securityholder Indemnified Party”) in respect of, and hold them harmless against, any Damages suffered, incurred or sustained by any Acquirer Indemnified Party resulting from or arising out of:

(a) any breach or inaccuracy of any representation or warranty of Acquirer contained in Section 3 of this Agreement; and

(b) any breach, failure to perform or nonfulfillment of any covenant, agreement or other obligation of Parent or Merger Sub under this Agreement.

8.3 Third-Party Claims. In the event that any Acquirer Indemnified Party or Company Securityholder Indemnified Party (each, an “Indemnified Party”) becomes aware of a third-party claim (including any action or proceeding commenced or threatened to be commenced by any third-party) that such Indemnified Party reasonably believes may result in an indemnification by the Company Securityholders pursuant to Section 8.1 if the Indemnified Party is an Acquirer Indemnified Party or by Acquirer pursuant Section 8.2 if the Indemnified Party is a Company Indemnified Party (any such claim, a “Third-Party Claim” and the Persons providing indemnification in such case the “Indemnifying Party”), the Indemnified Party shall promptly notify the Indemnifying Party in writing of such Third-Party Claim (such notice, the “Claim Notice”). The Claim Notice shall be accompanied by copies of any relevant and material documentation submitted by the third party making such Third-Party Claim and shall describe in reasonable detail (to the extent known by the Indemnified Party) the facts constituting the basis for such Third-Party Claim and the amount of the claimed Damages; provided, however, that no delay or failure on the part of the Indemnified Party in delivering a Claim Notice shall relieve the Indemnifying Party from any liability hereunder except and only to the extent they shall have been actually and materially prejudiced as a result of such delay or failure. Within 20 days after receipt of any Claim Notice, the Indemnifying Party may, upon written notice thereof to Indemnified Party (which written notice shall include an acknowledgement by the Indemnifying Party that the Indemnified Party shall be responsible for all Damages relating to such Third-Party Claim (subject to the limitations contained in this Article VIII)), assume control of the defense of the Third-Party Claim referred to therein at the Indemnifying Party’s sole cost and expense) with counsel reasonably satisfactory to the Indemnified Party. Notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be entitled to assume or control the investigation, defense or prosecution of such Third-Party Claim if (A) such Third-Party Claim seeks non-monetary, equitable or injunctive relief or alleges any violation of criminal Law, (B) the Indemnifying Party (including the Company Securityholders in the case of the Stockholders’ Agent) also is a party to such Third-Party Claim and the Indemnified Party determines in good faith after consultation with counsel that joint representation would be inappropriate, (C) such Third-Party Claim relates to or arises in connection with any criminal or regulatory proceeding, action, indictment, allegation or investigation (including, for the avoidance of doubt, any audit or other proceeding relating to Taxes or Tax Returns), (D) a vendor, supplier, licensor, licensee or service provider of Acquirer, the Company or any of their respective Affiliates is a party to such Third-Party Claim, or (E) with respect to any Third-Party Claim against an Acquirer Indemnified Party, the Damages set forth in the Third-Party Claim is more than or equal to the amount then actually available Indemnity Escrow Funds. The party not controlling the defense of such Third-Party Claim (the “Non-Controlling Party”) may participate therein at its own expense. The Indemnifying Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Indemnified Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnified Party shall not be required with respect to any such settlement or judgment if (A) such settlement or judgment (1) involves no admission of wrongdoing by the Indemnified Party or its Affiliates, (2) the sole relief provided is monetary damages and (B) the Indemnified Party agrees in writing to pay or cause to be paid any amounts payable pursuant to such settlement or judgment (net of the applicable deductible amount specified in Section 8.6(b)) and such settlement or judgment includes a complete release of the Indemnified Party and its Affiliates, directors, stockholders, members, managers, partners, officers, employees, and representatives from further liability and has no other adverse effect on the Indemnified Party. If the Indemnifying Party does not elect to defend any Third-Party Claims or is precluded from doing so by any of the exception to the Indemnifying Party’s right to defend such Third-Party Claim set forth above and the Indemnified Party accordingly defends itself against such Third-Party Claim, the Indemnified Party shall not agree to any settlement of, or the entry of any judgment arising from, any such Third-Party Claim without the prior written consent of the Indemnifying Party, which shall not be unreasonably withheld or delayed; provided, however, that the consent of the Indemnifying Party shall not be required with respect to any such settlement or judgment if the Indemnified Party agrees in writing to pay or cause to be paid any amounts payable pursuant to such settlement or judgment. For purposes of this Section 8.3, if the Company Stockholders, collectively, comprise the Indemnified Party or Indemnifying Parties, then in each such case all references to such Indemnified Party or Indemnifying Parties, as the case may be, (except for provisions relating to an obligation to make or a right to receive any payments) shall be deemed to refer to the Stockholders’ Agent acting on behalf of such Indemnified Person or Indemnifying Person, as applicable.

8.4 Indemnification Mechanics

(a) In order to seek indemnification under this Article VIII, an Indemnified Party shall deliver a written notice (an “Indemnification Demand”) to the Indemnifying Party which contains (i) a description and the amount of any Damages incurred or reasonably expected to be incurred by the Indemnified Party (to the extent then known) and (ii) a statement that the Indemnified Party is entitled to indemnification under Section 8.1 or Section 8.2 (as the case may be) for such Damages and a reasonable explanation of the basis therefor (to the extent then known).

(b) Upon reasonable request, the Indemnified Party shall furnish the Indemnifying Party with any information to the extent that such information is reasonably necessary in order to evaluate the Indemnification Demand. If the Indemnifying Party in good faith objects to any claim made by the Indemnified Party in the Indemnification Demand, then the Indemnifying Party shall deliver a written notice (an “Indemnification Dispute Notice”) to the Indemnified Party within [***] days following receipt by the Indemnifying Party of an Indemnification Demand from such Indemnified Party. The Indemnification Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any claim made by the Indemnified Party in the Indemnification Demand. If the Indemnifying Party fails to deliver an Indemnification Dispute Notice prior to the expiration of such [***] period, then the indemnity claim set forth in the Indemnification Demand shall be conclusively determined in the Indemnified Party’s favor for purposes of this Article VIII, and the Indemnified Party shall be indemnified for the amount of the Damages stated in such Indemnification Demand (or, in the case of any notice in which the Damages (or any portion thereof) are estimated, the amount of such Damages (or such portion thereof) as finally determined) on demand or, in the case of any notice in which the Damages (or any portion thereof) are estimated, on such later date when the amount of such Damages (or such portion thereof) becomes finally determined, in either case, subject to the limitations of this Article VIII.

(c) If the Indemnifying Party delivers an Indemnification Dispute Notice, then the Indemnified Party and the Indemnifying Party shall attempt in good faith to resolve any such objections raised by the Indemnifying Party in such Indemnification Dispute Notice. If the Indemnified Party and the Indemnifying Party agree to a resolution of such objection, then a memorandum setting forth the matters conclusively determined by the Indemnified Party and the Indemnifying Party shall be prepared and signed by both parties, and shall be binding and conclusive upon the parties hereto.

(d) If no such resolution can be reached during the [***] period following the Indemnified Party’s receipt of a given Indemnification Dispute Notice, then upon the expiration of such 30-day period (or such longer period as may be mutually agreed), the Indemnified Parties shall be entitled to pursue all remedies available to them under this Agreement or otherwise at law or in equity with respect to such claims (in each case subject to the terms and limitations set forth in this Agreement).

***Certain Confidential Information Omitted

8.5 Survival of Representations and Warranties. All representations and warranties contained in this Agreement shall (a) survive the Closing and remain in full force and effect and (b) expire at 5:00 p.m. Pacific time on the date that is [***] after the Closing Date; provided, however, that (i) the Specified Representations shall survive the Closing and remain in full force and effect until 5:00 pm. Pacific time on the [***] of the Closing Date and (ii) the Tax Representations shall survive the Closing and remain in full force and effect until [***]; provided, further, that, with respect to any claim as to which an Acquirer Indemnified Party shall have, on or prior to such date, delivered an Indemnification Demand, the indemnification obligations hereunder with respect to the claim asserted in such Indemnification Demand, shall survive until such time as such claim is fully and finally resolved and payment in respect thereof, if any is required to be made under the terms of this Agreement, shall have been made. All covenants and agreements of the Company contained in this Agreement (A) that are to be performed at the Closing shall survive the Closing and remain in full force and effect until the date that is [***] after the Closing Date and (B) that are to be performed following the Closing shall continue in effect and expire in accordance with their respective terms. The representations and warranties of Acquirer and Merger Sub set forth in this Agreement, the Transaction Documents or in any certificate or other instrument delivered pursuant to this Agreement shall terminate on the Closing Date. It is the express intent of the parties that, if an applicable survival period as contemplated by this Section 8.4 is shorter than the statute of limitations that would otherwise have been applicable, then, by contract, the applicable statute of limitations shall be reduced to the shortened survival period contemplated hereby. The parties further acknowledge that the time periods set forth in this Section 8.4 (Survival of Representations and Warranties) for the assertion of claims under this Agreement are the result of arms’-length negotiation among the parties and that they intend for the time periods to be enforced as agreed by the parties.

8.6 Threshold and Limitations.

(a) The Acquirer Indemnified Parties’ sole and exclusive sources of recovery for indemnification claims under Section 8.1(a) (except with respect to such claims related to breaches or inaccuracies of Specified Representations or Tax Representations) shall be [***].

(b) Notwithstanding anything to the contrary contained in this Agreement, no Indemnified Party shall be entitled to recover any Damages under Section 8.1(a) unless and until the aggregate Damages for which they would otherwise be entitled to indemnification under Section 8.1(a) or Section 8.2(b) exceed $[***] (the “Indemnity Deductible”) at which point such Indemnified Party shall be entitled for indemnification for all Damages in excess of $[***]; provided, however, that the Indemnity Deductible shall not apply to (x) any claims for Fraud, or (y) any Damages related to the inaccuracy in or breach of any of the Specified Representations or the Tax Representations.

***Certain Confidential Information Omitted

(c) In no event shall (x) any Company Stockholder’s aggregate liability to the Acquirer Indemnified Parties or (y) Acquirer’s aggregate liability to the Company Securityholder Indemnified Parties for indemnification claims pursuant to this Article VIII exceed an amount equal to the aggregate consideration paid by Acquirer to the Company Stockholders under this Agreement [***], other than for Fraud.

(d) Notwithstanding anything contained in this Agreement or elsewhere to the contrary, “material” and “Material Adverse Effect” or similar materiality type qualifications contained in the representations and warranties of the Company set forth in this Agreement shall be ignored under this Article VIII for purposes of determining whether or not a breach or inaccuracy of a representation or warranty has occurred and for purposes of determining the amount of any Damages.

(e) The representations, warranties and covenants of the Company and the Stockholder Agent, and any Acquirer Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of any Acquirer Indemnified Party (including by any of its representatives) or by reason of the fact that any Acquirer Indemnified Party or any of its representatives knew or should have known that any such representation or warranty is, was or might be inaccurate.

(f) Notwithstanding anything to the contrary (express or implied) herein, there shall be no maximum liability for Damages caused by Fraud by any party who committed, participated in or had actual knowledge of such Fraud.

(g) Payments by an Indemnifying Party pursuant to Section 8.1 or Section 8.2 in respect of any Damages shall be net of any insurance proceeds or third party indemnity or contribution payments actually received by the Indemnified Party in respect of such Damages less any deductibles, costs and expenses incurred in connection with making any claim or pursuing or obtaining such insurance proceeds or third party indemnity or contribution payments, and related increases in insurance premiums or other chargebacks; provided, however, that no Indemnified Party has any obligation to seek to recover any insurance proceeds or third party indemnity or contribution payments or to pursue or obtain any insurance claims or third party indemnity or contribution payments.

8.7 No Right of Contribution. The Indemnifying Party waives, and acknowledges and agrees that such party shall not have and shall not exercise or assert (or attempt to exercise or assert), any right of contribution, indemnity, subrogation, reimbursement, or advancement of expenses with respect to any Damages, against the Indemnified Party, or its successors or assigns, in connection with any indemnification obligation under this Agreement.

8.8 Manner of Payment; Release of Escrow.

(a) The Indemnity Escrow Amount shall be available to indemnify, compensate and reimburse the Acquirer Indemnified Parties for any Damages for which they entitled to recover in accordance with the terms of this Article VIII, which will occur through the forfeiture of the applicable portion of the Indemnity Escrow Amount in accordance with the terms of this Section 8.8(a). Each claim that is to be satisfied through the forfeiture of any portion of the Indemnity Escrow Amount pursuant to this Article VIII shall be satisfied by forfeiture on behalf of the indemnifying parties of the Indemnity Escrow Amount with a value equal to the applicable Damages.

(b) Any payment that the Company Stockholders are obligated to make to any Acquirer Indemnified Parties pursuant to this Article VIII shall be made, first (i) to the extent there are sufficient Indemnity Escrow Funds, by release of such Indemnity Escrow Funds to the Acquirer

***Certain Confidential Information Omitted

Indemnified Parties from the applicable Escrow Account by the Escrow Agent within two Business Days after the date written notice of any sums due and owing is delivered to the Escrow Agent pursuant to the Escrow Agreement by the joint instructions of the Stockholders’ Agent and Acquirer, and then (ii) either (x) directly by the Company Stockholders in accordance with their Pro Rata Shares (subject to the limitations set forth in this Article VIII) or (y) in accordance with Section 8.9.

(c) Each delivery of any portion of the Indemnity Escrow Amount to Company Stockholders pursuant to Section 8.8(b) shall be made in proportion to the Company Stockholders’ respective Pro Rata Share of the Indemnity Escrow Amount being delivered.

(d) On the [***] anniversary of the Closing Date, the Escrow Agent shall release the then remaining Indemnity Escrow Funds (to the extent such funds have not been utilized to pay the Acquirer Indemnified Parties for any indemnification claims under this Article VIII) to the Company Stockholders in accordance with Section 1.3 and the Escrow Agreement; provided that the Escrow Agent shall retain an amount (up to the total amount of the then remaining Indemnity Escrow Funds) equal to the amount of any claims for indemnification asserted prior to the [***] anniversary of the Closing Date in accordance with the terms of Section 8.4(a) but which are not yet resolved (including any claims for which the time period to deliver an Indemnification Dispute Notice pursuant to Section 8.4(b) has not yet expired) (each such claim, an “Unresolved Claim”). The amount of the Indemnity Escrow Funds retained for each Unresolved Claim shall be released (to the extent such funds are not utilized to indemnify any Acquirer Indemnified Party for such Unresolved Claim in accordance with the terms of this Agreement) by the Escrow Agent to the Company Stockholders or Acquirer, as applicable, in accordance with the prior sentence upon the final and binding resolution of such Unresolved Claim in accordance with this Article VIII (Indemnification) and the Escrow Agreement. Any amounts released pursuant to this Section 8.8 shall be referred to as “Escrow Distributions”)

8.9 Right to Satisfy Indemnification Claims by Reducing Earnout Payments.

(a) Acquirer is expressly authorized, but shall not be obligated, to set off up to 100% of any Damages for which it is entitled to indemnification hereunder (subject to the limitations set forth in Article VIII), following final resolution of the claims set forth in any Indemnification Demand pursuant to Section 8.4 or otherwise pursuant to a final non-appealable order or judgment by a court of competent jurisdiction, against any Earnout Payment or any other payments to be made to the Company Stockholders (directly or indirectly through the Company) following the Closing.

(b) Notwithstanding Section 1.7, if at the time any Earnout Payment is due and payable there shall be any outstanding Indemnification Demand delivered in accordance with Section 8.4(a), the amount of Damages with respect to which there has not been a final determination in accordance with this Article VIII, then Acquirer shall be entitled, but shall not be required, to withhold from such Earnout Payment the amount of Damages the Acquirer Indemnified Party reasonably estimates to be subject to such Indemnification Demand. If the final amount of Damages for such Indemnification Demand is determined in accordance with this Article VIII to be less than the amount withheld from such Earnout Payment, then Acquirer shall promptly, and in any event within five Business Days following the final determination of the amount of such Damages, deliver the difference to the Exchange Agent for distribution to the Company Stockholders pursuant to Section 1.4. If the final amount of Damages for such Indemnification Demand is determined in accordance with this Article VIII to exceed the amount by which such Earnout Payment was reduced for such claim, then Acquirer shall continue to be entitled to indemnification for the amount of such excess subject to the terms and conditions of this Article VIII.

***Certain Confidential Information Omitted

8.10 Tax Treatment of Payments. The parties hereto agree to treat any payments made pursuant to this Article VIII as adjustments to the consideration paid to the Company Stockholders under Section 1.3 for all Tax purposes to the maximum extent permitted by Law.

ARTICLE IX

General Provisions

9.1 Stockholders’ Agent.

(a) By the adoption of the Merger, and by receiving the benefits hereof, including any consideration payable hereunder, each Company Stockholder shall be deemed to have approved Shareholder Representative Services LLC as the Stockholders’ Agent as of Closing for all purposes in connection with this Agreement and any related agreements. The Stockholders’ Agent shall be the agent, representative and attorney-in-fact for and on behalf of the Company Stockholders to: (i) execute, as the Stockholders’ Agent, this Agreement and any agreement or instrument entered into or delivered in connection with the Transactions, (ii) following Closing, give and receive notices, instructions and communications permitted or required under this Agreement, or any other agreement, document or instrument entered into or executed in connection herewith, for and on behalf of any Company Stockholder, to or from Acquirer relating to this Agreement or any of the Transactions and any other matters contemplated by this Agreement or by such other agreement, document or instrument (except to the extent that this Agreement expressly contemplates that any such notice or communication shall be given or received by each Company Stockholder individually), (iii) pursuant to Section 1.6, review, negotiate, object to, accept or agree to Acquirer’s calculation of the Adjusted Cash Consideration, Closing Working Capital and/or Acquirer’s calculation of Net Revenue for FY22, (iv) review, negotiate and agree to and authorize Acquirer to reclaim an amount of cash from the Escrow Account pursuant to the terms of Section 1.6 or Article VIII hereof (including by not objecting to such claims), (iv) object to such claims pursuant to Section 1.6 or Article VIII, (v) consent or agree to, negotiate, enter into, or, if applicable, contest, prosecute or defend, settlements and compromises of, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to, such claims, resolve any such claims, take any actions in connection with the resolution of any dispute relating hereto or to the Transactions by arbitration, settlement or otherwise, and take or forego any or all actions permitted or required of any Company Stockholder or necessary in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing and all of the other terms, conditions and limitations of this Agreement, (vi) consult with legal counsel, independent public accountants and other experts selected by it, solely at the cost and expense of the Company Stockholders, (vii) following Closing, consent or agree to any amendment to this Agreement or to waive any terms and conditions of this Agreement providing rights or benefits to the Company Stockholders (other than with respect to the issuance of the Merger Consideration less the Escrow Amount) in accordance with the terms hereof and in the manner provided herein, and (ix) take all actions necessary or appropriate in the judgment of the Stockholders’ Agent for the accomplishment of the foregoing, in each case without having to seek or obtain the consent of any Person under any circumstance. Acquirer, Merger Sub and their respective Affiliates (including after the Effective Time, the Surviving Corporation) shall be entitled to rely on the appointment of Shareholder Representative Services LLC as the Stockholders’ Agent and treat such Stockholders’ Agent as the duly appointed attorney-in-fact of each Company Stockholder and as having the duties, power and authority provided for in this Section 9.1. The Company Stockholders shall be bound by all actions taken and documents executed by the Stockholders’ Agent under this Agreement, and Acquirer and Merger Sub shall be entitled to rely exclusively on any action or decision of the Stockholders’ Agent. The Person serving as the Stockholders’ Agent may be removed or replaced from time to time, or if such Person resigns from his, her or its position as the Stockholders’ Agent, then a successor may be appointed, by the holders of a majority in interest of the aggregate amount of cash then held in the Escrow Account (or, in the event that there is no cash then held in the Escrow Account by the Company

Stockholders collectively having a Pro Rata Share greater than 50%) upon not less than 30 days’ prior written notice to Acquirer. No bond shall be required of the Stockholders’ Agent.

(b) The Stockholders’ Agent will incur no liability in connection with its services pursuant to this Agreement and any related agreements except to the extent resulting from its gross negligence or willful misconduct. The Stockholders’ Agent shall not be liable for any action or omission pursuant to the advice of counsel. The Company Stockholders shall indemnify the Stockholders’ Agent against any reasonable, documented, and out-of-pocket losses, liabilities and expenses (“Representative Losses”) arising out of or in connection with this Agreement and any related agreements, in each case as such Representative Loss is suffered or incurred; provided, that in the event that any such Representative Loss is finally adjudicated to have been caused by the bad faith, gross negligence or willful misconduct of the Stockholders’ Agent, the Stockholders’ Agent will reimburse the Company Stockholders the amount of such indemnified Representative Loss to the extent attributable to such bad faith, gross negligence or willful misconduct. Representative Losses may be recovered by the Stockholders’ Agent from (i) the funds in the Expense Fund and (ii) any other funds that become payable to the Company Stockholders under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholders; provided, that while the Stockholders’ Agent may be paid from the aforementioned sources of funds, this does not relieve the Company Stockholders from their obligation to promptly pay such Representative Losses as they are suffered or incurred. In no event will the Stockholders’ Agent be required to advance its own funds on behalf of the Company Stockholders or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholders set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholders’ Agent hereunder. The foregoing indemnities will survive the Closing, the resignation or removal of the Stockholders’ Agent or the termination of this Agreement.

(c) Upon the Closing, the Company will wire US$ 200,000 (the “Expense Fund”) to the Stockholders’ Agent, which will be used for any expenses incurred by the Stockholders’ Agent. The Company Stockholders will not receive any interest or earnings on the Expense Fund and irrevocably transfer and assign to the Stockholders’ Agent any ownership right that they may otherwise have had in any such interest or earnings. The Stockholders’ Agent will hold these funds separate from its corporate funds and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholders’ Agent’s responsibilities, the Stockholders’ Agent will deliver any remaining balance of the Expense Fund to the Exchange Agent for further distribution to the Company Stockholders. For tax purposes, the Expense Fund will be treated as having been received and voluntarily set aside by the Company Stockholders at the time of Closing.

(d) After the Closing, any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholders’ Agent that is within the scope of the Stockholders’ Agent’s authority under Section 9.1(a) shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Company Stockholders and shall be final, binding and conclusive upon each such Company Stockholder; and each Acquirer Indemnified Party shall be entitled to rely exclusively upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Company Stockholder. Acquirer, Merger Sub and the Surviving Corporation are hereby relieved from any Liability to any Person for any acts done by them in accordance with such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of the Stockholders’ Agent.

9.2 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand, (b) upon transmission, if sent by electronic transmission (with receipt verified by electronic confirmation), or (c) one Business Day after being sent by courier or express delivery service, provided that in each case the notice or other communication is sent to the address or e-mail address set forth beneath the name of such party below (or to such other address or e-mail address as such party shall have specified in a written notice given to the other parties hereto):

(i) if to Acquirer or Merger Sub, to:

Castle Biosciences, Inc

505 S. Friendswood Drive, 4th Floor

Friendswood, TX 77546

Attention: Frank Stokes and Derek Maetzold

Email: [***] and [***]

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

Cooley LLP

4401 Eastgate Mall

San Diego, California 92121

Attention: Barbara L. Borden

E-mail: bordenbl@cooley.com

(ii) if to the Company, to:

Michael J. Hoerres

235 William Pitt Way

Pittsburgh PA 15238

Email: [***]

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

Metz Lewis Brodman Must O’Keefe LLC

535 Smithfield Street, Suite 800

Pittsburgh, PA 15222-2305

Attention: LeRoy L. Metz, Esq.

Email: LMetz@metzlewis.com

if to the Stockholders’ Agent, to:

Shareholder Representative Services LLC

950 17th Street, Suite 1400

Denver, CO 80202

Attention: Managing Director

Email: [***]

Telephone: [***]

***Certain Confidential Information Omitted

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

Wilson Sonsini Goodrich & Rosati, P.C.,

650 Page Mill Road

Palo Alto, CA 94304-1050

Attention: Michael Coke

Email: mcoke@wsgr.com

9.3 Interpretation. When a reference is made herein to Articles, Sections, subsections, Schedules or Exhibits, such reference shall be to an Article, Section or subsection of, or a Schedule or an Exhibit to this Agreement unless otherwise indicated. The headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation.” Where a reference is made to a Contract, instrument or Law, such reference is to such Contract, instrument or Law as amended, modified or supplemented, including (in the case of Contracts or instruments) by waiver or consent and (in the case of Law) by succession of comparable successor Law and references to all attachments thereto and instruments incorporated therein. Unless the context of this Agreement otherwise requires: (i) words of any gender include each other gender and neutral forms of such words, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) the terms “hereof,” “herein,” “hereto,” “hereunder” and derivative or similar words refer to this entire Agreement, (iv) references to clauses without a cross-reference to a Section or subsection are references to clauses within the same Section or, if more specific, subsection, (v) references to any person include the successors and permitted assigns of that person, (vi) references from or through any date shall mean, unless otherwise specified, from and including or through and including, respectively, (vii) the phrases “provide to” and “deliver to” and phrases of similar import mean that a true, correct and complete paper or electronic copy of the information or material referred to has been delivered to the party to whom such information or material is to be provided and (viii) the phrase “made available to” and phrases of similar import means, with respect to any information, document or other material of Acquirer or the Company, that such information, document or material was made available for review and properly indexed by the Company or Acquirer, respectively, and its Representatives in the virtual data room established by Acquirer or the Company, respectively, in connection with this Agreement at least 48 hours prior to the execution of this Agreement or actually delivered (whether by physical or electronic delivery) to the Company or Acquirer, respectively, or its Representatives at least 48 hours prior to the execution of this Agreement. The symbol “$” refers to United States Dollars. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends and such phrase shall not mean simply “if.” All references to “days” shall be to calendar days unless otherwise indicated as a “Business Day.” Unless indicated otherwise, all mathematical calculations contemplated by this Agreement shall be rounded to the tenth decimal place, except in respect of payments, which shall be rounded to the nearest whole United States cent.

9.4 Amendment. Subject to Law, the parties hereto may amend this Agreement by authorized action at any time prior to Closing pursuant to an instrument in writing signed on behalf of each of the parties hereto (except for the Stockholders’ Agent); provided that after the Company Stockholder Approval is obtained, no amendment shall be made to this Agreement that by Law requires further approval by the Company Stockholders without such further approval. To the extent permitted by Law, Acquirer and the Stockholders’ Agent may cause this Agreement to be amended at any time after the Closing by execution of an instrument in writing signed on behalf of Acquirer and the Stockholders’ Agent.

9.5 Extension; Waiver. At any time at or prior to the Closing, any party hereto (except for the Stockholders’ Agent) may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto owed to such party, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto and (iii) waive any breaches of any of the covenants, agreements, obligations or conditions for the benefit of such party contained herein. At any time after the Closing, Acquirer and the Stockholders’ Agent may, to the extent legally allowed, (A) extend the time for the performance of any of the obligations of the other owed to such party, (B) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto or (C) waive any breaches of any of the covenants, agreements, obligations or conditions for the benefit of such party contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing that is (I) prior to the Closing with respect to the Company and/or the Company Securityholders, signed by the Company, (II) after the Closing with respect to the Company Stockholders and/or the Stockholders’ Agent, signed by the Stockholders’ Agent and (III) with respect to Acquirer and/or Merger Sub, signed by Acquirer. Without limiting the generality or effect of the preceding sentence, no failure to exercise or delay in exercising any right under this Agreement shall constitute a waiver of such right, and no waiver of any breach or default shall be deemed a waiver of any other breach or default of the same or any other provision herein.

9.6 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto; it being understood and agreed that all parties hereto need not sign the same counterpart. The delivery by facsimile or by electronic delivery in PDF format of this Agreement with all executed signature pages (in counterparts or otherwise) shall be sufficient to bind the parties hereto to the terms and conditions set forth herein. All of the counterparts will together constitute one and the same instrument and each counterpart will constitute an original of this Agreement.

9.7 Entire Agreement; Parties in Interest. This Agreement and the documents and instruments and other agreements specifically referred to herein or delivered pursuant hereto, including all the exhibits attached hereto, the Schedules, including the Company Disclosure Letter, (a) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof, except for the Confidentiality Agreement, which shall continue in full force and effect, and shall survive any termination of this Agreement, in accordance with its terms and (b) are not intended to confer, and shall not be construed as conferring, upon any Person other than the parties hereto any rights or remedies hereunder (except that Section 5.17 is intended to benefit the Company Indemnified Parties).

9.8 Assignment. Neither this Agreement nor any of the rights and obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto, and any such assignment without such prior written consent shall be null and void, except that Acquirer and/or Merger Sub may assign its rights and delegate its obligations under this Agreement to any direct or indirect wholly owned subsidiary of Acquirer without the prior consent of any other party hereto; provided that notwithstanding any such assignment, Acquirer and/or Merger Sub, as applicable, shall remain liable for all of its obligations under this Agreement. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.

9.9 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement shall continue in full force and effect and shall be interpreted so as reasonably necessary to effect the intent of the parties hereto. The parties hereto shall use all reasonable efforts to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that shall achieve, to the greatest extent possible, the economic, business and other purposes of such void or unenforceable provision.

9.10 Remedies Cumulative; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party hereto shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party hereto of any one remedy shall not preclude the exercise of any other remedy and nothing herein shall be deemed a waiver by any party hereto of any right to specific performance or injunctive relief. The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof, this being in addition to any other remedy to which they are entitled at law or in equity, and the parties hereto hereby waive the requirement of any posting of a bond in connection with the remedies described herein. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that the other party has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity.

9.11 Governing Law. This Agreement, all acts and transactions pursuant hereto and all obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of Delaware without reference to such state’s principles of conflicts of law that would refer a matter to different jurisdiction. The parties hereto hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and the Federal courts of the United States of America located within the State of Delaware in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the Transactions and such documents, and hereby waive, and agree not to assert, as a defense in any Legal Proceeding for the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such Legal Proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such Legal Proceeding shall be heard and determined in such a Delaware State or Federal court. The parties hereto hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such Legal Proceeding in the manner provided in Section 9.2 or in such other manner as may be permitted by Law, shall be valid and sufficient service thereof.

9.12 Rules of Construction. The parties hereto have been represented by counsel during the negotiation, preparation and execution of this Agreement and, therefore, hereby waive, with respect to this Agreement, each Schedule and each Exhibit attached hereto, the application of any Law or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document.

9.13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES TO IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY LITIGATION.

[Signature Page Next]

IN WITNESS WHEREOF, Acquirer, Merger Sub, the Company and the Stockholders’ Agent have caused this Agreement and Plan of Merger to be executed and delivered by their respective officers thereunto duly authorized, all as of the date first written above.

	Castle Biosciences, Inc.

	By:	/s/ Derek Maetzold
	Name:	Derek Maetzold
	Title:	President and Chief Executive Officer

	Space Merger Sub, Inc.

	By:	/s/ Derek Maetzold
	Name:	Derek Maetzold
	Title:	President

[Signature Page to Agreement and Plan of Merger]

	Cernostics, Inc.

	By:	/s/ Michael J. Hoerres
	Name:	Michael J. Hoerres
	Title:	Chief Executive Officer

[Signature Page to Agreement and Plan of Merger]

	Shareholder Representative Services LLC

	By:	/s/ Sam Riffe
	Name:	Sam Riffe
	Title:	Managing Director

[Signature Page to Agreement and Plan of Merger]

EXHIBIT A

DEFINITIONS

As used herein, the following terms shall have the meanings indicated below:

“Accredited Securityholder” shall mean a Company Stockholder or Optionholder who has completed and delivered to the Company and Acquirer prior to the Closing Date a duly executed AIQ, in form and substance reasonably satisfactory to Acquirer, certifying that such Company Stockholder is an “accredited investor” (as such term is defined in Rule 501(a) under the Securities Act) or is determined by Acquirer in its reasonable discretion to be an “accredited investor” (as such term is defined in Rule 501(a) under the Securities Act).

“Acquirer Common Stock” means Common Stock, par value $0.001 per share, of Acquirer.

“Acquirer Stock Price” means $65.03 per share of Acquirer Common Stock.

“Adjusted Cash Consideration” means (i) the Initial Cash Amount plus (ii) the Estimated Company Cash minus (ii) the Estimated Company Debt minus (iv) the Estimated Unpaid Company Transaction Expenses plus (v) the amount (if any) by which Estimated Closing Working Capital exceeds Target Working Capital, minus (vi) the amount (if any) by which Target Working Capital exceeds Estimated Closing Working Capital.

“Adjustment Escrow Amount” means $[***].

“Adjustment Escrow Funds” means the Adjustment Escrow Amount, as the same may be increased by investment earnings or decreased by investment losses, payments made in satisfaction of the adjustment payments to Purchaser pursuant to Section 1.6(f) or Escrow Distributions.

“Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such Person, including any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management company with, such Person, in each case as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities or by Contract or otherwise.

“Aggregate Exercise Amount” means the aggregate exercise price of all Company Options outstanding as of immediately prior to the Effective Time, as set forth on the Estimated Closing Statement.

“AML Laws” mean all applicable laws, judgments, orders, executive orders, decrees, ordinances, directives, rules, regulations, statutes, case law or treaties concerning or related to terrorism financing or money laundering, including the Bank Secrecy Act, 31 U.S.C. §§ 5311 et seq., as amended by the USA PATRIOT Act, and its implementing regulations, the Money Laundering Control Act, 18 U.S.C. §§ 1956 and 1957, and any related or similar rules, regulations or guidelines, which in each case are issued, administered or enforced by any relevant Governmental Entity.

***Certain Confidential Information Omitted

A -1

“Anti-Corruption Law” means any Law relating to anti-bribery or anti-corruption (governmental or commercial), including the Foreign Corrupt Practices Act of 1977, as amended, and any other law that prohibits the corrupt payment, offer, promise or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any Person, including any Government Official.

“Bonus Agreements” shall mean the Retention Bonus Letters between the Company and each of [***] and [***] dated as of October 13, 2021 pursuant to which payments shall be made at the Closing to [***] and [***] (each a “Bonus Participant”) in the amounts and as otherwise set forth therein.

“Business” means the business of the Company as currently conducted including the development, marketing, sale and license of Company Products.

“Business Day” means a day (i) other than Saturday or Sunday and (ii) on which commercial banks are open for business in Galveston, Texas.

“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act.

“CLIA” shall mean the Clinical Laboratories Improvements Act of 1967 and Amendments of 1988 and the regulations, rules and guidance promulgated thereunder.

“Closing Working Capital” means the Net Working Capital as of 11:59 pm (Eastern Time) on the last Business Day immediately preceding the Closing Date.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commercially Reasonable Efforts” means [***].

“Company Capital Stock” means, collectively, the Company Common Stock and the Company Preferred Stock.

“Company Cash” means the aggregate amount of all unrestricted cash and cash equivalents (excluding security or similar deposits or cash collateral and marketable securities of the Company) determined in accordance with GAAP, in each case, including any cash resulting from “inbound” checks, wires, or drafts deposited by the Company or initiated for the benefit of an account of the Company, as applicable, prior to 11:59 P.M., Eastern Time, on the date immediately prior to the Closing Date that clear thereafter, but reduced by any cash on account of “outbound” checks, wires, or drafts issued by the Company or initiated by the Company for the benefit of an account of any other Person that is not the Company, as applicable, prior to 11:59 P.M., Eastern Time, on the date immediately prior to the Closing Date that clear thereafter.

***Certain Confidential Information Omitted

A -2

“Company Common Stock” means, collectively, the Common Stock, par value $0.001 per share, of the Company.

“Company Debt” means, without duplication: (i) all indebtedness of the Company for borrowed money, (ii) all indebtedness of the Company evidenced by bonds, debentures, notes, mortgages or similar instruments or debt securities, (iii) all deferred indebtedness of the Company for the payment of the purchase price of property or assets purchased (other than accounts payable incurred in the ordinary course of business), (iv) all obligations of the to pay rent or other payment amounts under a lease which is required to be classified as a capital lease in accordance with GAAP, (v) all outstanding reimbursement obligations of the Company with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of the Company, (vi) all obligations of the Company under any interest rate swap agreement, forward rate agreement, interest rate cap or collar agreement or other financial agreement or arrangement entered into for the purpose of limiting or managing interest rate risks, (vii) all obligations secured by any Encumbrance existing on property owned by the Company, whether or not indebtedness secured thereby will have been assumed, (viii) all premiums, penalties, termination payments, balloon payments, accrued interest, deferred interest, fees, expenses, breakage costs and change of control payments required to be paid or offered in respect of any of the foregoing on prepayment or repayment, as a result of the consummation of the Transactions or in connection with any lender consent or termination of Encumbrance, (ix) any Pre-Closing Taxes (other than Transaction Payroll Taxes), whether due prior to, on, or after the Closing, that have not been paid as of the 11:59 p.m. Eastern time on the day immediately prior to the Closing Date, (x) any Reimbursement Obligations and (xi) all guaranties, endorsements, assumptions and other contingent obligations of the Company in respect of, or to purchase or to otherwise acquire, any of the obligations and other matters of the kind described in any of the clauses (i) through (x) appertaining to third parties.

“Company Employee” or “Employee” means any and all employees of the Company, whether an employment agreement was signed with them or not and any Person with whom an employee-employer relationship may exist between such Person and the Company.

“Company Intellectual Property” means any and all Company-Owned Intellectual Property and any and all Third-Party Intellectual Property that is licensed to, used or held for use by the Company or otherwise used in the conduct of the Business.

“Company Option Plans” means, the Company’s 2010 Stock Plan and the Company’s 2021 Equity Incentive Plan.

“Company Optionholders” means (i) with respect to any time before the Effective Time, collectively, the holders of record of Company Options outstanding as of such time and (ii) with respect to any time at or after the Effective Time, collectively, the holders of record of Company Options outstanding as of immediately prior to the Effective Time.

“Company Options” means options to purchase shares of Company Capital Stock.

“Company-Owned Intellectual Property” means any and all Intellectual Property Rights that are owned or purported to be owned by, or that is exclusively licensed to, the Company.

“Company Preferred Stock” means, collectively, the Company Series A-1 Preferred Stock and the Company Series B-1 Preferred Stock.

“Company Products” means all products or services currently or at any time produced, developed, marketed, licensed, sold, distributed or performed by or on behalf of the Company and all products or services currently under development by the Company.

A -3

“Company Securityholders” means, collectively, the Company Stockholders and the Company Optionholders.

“Company Series A-1 Preferred Stock” means the Series A-1 Preferred Stock, par value $0.001 per share, of the Company.

“Company Series B-1 Preferred Stock” means the Series B-1 Preferred Stock, par value $0.001 per share, of the Company.

“Company Source Code” means, collectively, any software source code or database specifications or designs, or any material proprietary information or algorithm contained in or relating to any software source code or database specifications or designs, of any Company Intellectual Property or Company Products.

“Company Stockholders” means (i) with respect to any time before the Effective Time, collectively, the holders of record of shares of Company Capital Stock outstanding as of such time and (ii) with respect to any time at or after the Effective Time, collectively, the holders of record of shares of Company Capital Stock outstanding as of immediately prior to the Effective Time.

“Company Transaction Documents” means this Agreement and each other Transaction Document to which the Company is or will be a party.

“Company Transaction Expenses” means the following fees, expenses, costs and payments incurred in connection with or related to the Merger, this Agreement or the other Transactions and that have been paid or are payable by the Company, including any such fees, expenses, costs and payments incurred or payable by employees of the Company and/or Company Securityholders that are paid for or to be paid for by the Company based on arrangements made by the Company or any stockholder or employee of the Company prior to the Closing, whether or not billed or accrued prior to, at or after the Closing: (i) any fees, expenses and costs of legal counsel and accountants; (ii) the maximum amount of fees, expenses, costs and payments payable to underwriters, financial advisors, investment bankers, brokers, finders, consultants, other third party service providers and other advisors of the Company, notwithstanding any escrows or other contingencies; (iii) any change of control, bonus, severance, termination, management incentive plan payments (including pursuant to the Bonus Agreements or retention payments or obligations or similar amounts that become due and payable by the Company in connection with the entry into this Agreement and/or the consummation of the Merger, and amounts paid to employees in respect of any promised but not granted Company Options, (iv) Transaction Payroll Taxes, and (v) the amount of the premium payable with respect to the Tail Insurance Coverage.

“Confidential Information” means all confidential or non-public information of the Company (including trade secrets, know- how and other proprietary and confidential information, including software, source code and executable code, genomic, patient data and other databases, data compilations and collections, customer lists, supplier lists, schematics, ideas, algorithms and processes) or provided by any other Person to the Company or any of the Subsidiaries.

“Continuing Employees” means the full-time employees of the Company who are offered continued employment with Acquirer, the Surviving Corporation or one of their respective Subsidiaries and execute an Offer Letter prior to the Effective Time or are Existing Arrangement Employees, and, in each case, who accept employment with and/or remain employees of the Surviving Corporation or become employees of Acquirer or one of its subsidiaries as of immediately after the Effective Time.

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“Contract” means any written or oral legally binding contract, agreement, instrument, commitment or undertaking of any nature (including leases, subleases, licenses, mortgages, notes, guarantees, sublicenses, subcontracts, letters of intent and purchase orders) as of the Agreement Date or as may hereafter be in effect, including all amendments, supplements, exhibits and schedules thereto.

“Damages” shall mean losses, costs, Taxes, damages and expenses, including reasonable out-of-pocket attorneys’ fees and expenses and reasonable fees and expenses of other professionals and experts, that have been incurred or properly paid by an Acquirer Indemnified Party; provided, however, that “Damages” shall not include any speculative, special, indirect, exemplary, unforeseeable and punitive damages (in each case, except to the extent paid or payable by an Indemnified Party to a Third Party in connection with a Third-Party Claim).

“Delaware Law” means the General Corporation Law of the State of Delaware and the Delaware Limited Liability Company Act.

“Dissenting Shares” means any shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time and in respect of which appraisal rights shall have been perfected, and not waived, withdrawn or lost, in accordance with the Delaware Law in connection with the Merger.

“Earnout Acquirer Stock Price” means the volume weighted average price of Acquirer Common Stock for the fifteen (15) trading days ended December 30, 2022.

“Encumbrance” means, with respect to any asset, any mortgage, easement, encroachment, equitable interest, right of way, deed of trust, lien (statutory or other), pledge, charge, security interest, title retention device, conditional sale or other security arrangement, collateral assignment, claim, community property interest, adverse claim of title, ownership or right to use, right of first refusal, restriction or other encumbrance of any kind in respect of such asset (including any restriction on (i) the voting of any security or the transfer of any security or other asset, (ii) the receipt of any income derived from any asset, (iii) the use of any asset and (iv) the possession, exercise or transfer of any other attribute of ownership of any asset).

“Employee Options” means each In-the-Money Option (or portion thereof) that is held by a current or former employee of the Company.

“Environmental Laws” shall mean all Laws (including common laws), directives, guidance, rules, regulations, orders, treaties, statutes, and codes promulgated by any Governmental Entity relating to pollution, protection of the environment, protection of human health and safety, or which prohibit, regulate or control any Hazardous Substance or Hazardous Substance Activity.

“Escrow Amount” means the sum of the Adjustment Escrow Amount and the Indemnity Escrow Amount.

“Escrow Amount Per Share” means the Escrow Amount divided by the Participating Share Number.

“Estimated Closing Statement” means a certificate executed by the Chief Executive Officer of the Company, certifying the Company’s good faith estimate of: (i) the calculation of the aggregate amount of Company Cash as of immediately prior to the Effective Time (the “Estimated Company Cash”), (ii) the aggregate amount of outstanding Company Debt (the “Estimated Company Debt”) as of immediately prior to the Effective Time, including an itemized list of each such item of Company Debt with a description of the nature of such Company Debt and the Person to whom such Company Debt is owed, (iii) an itemized list of any Unpaid Company Transaction Expenses (the “Estimated Unpaid Company Transaction Expenses”) and the Persons to whom such Unpaid Company Transaction Expenses are owed, (iv) the calculation of Closing Working Capital (the “Estimated Closing Working Capital”), (v) the calculation of the Aggregate Exercise Amount (the “Estimated Aggregate Exercise Amount”), and (vi) the calculation of the Adjusted Cash Consideration, the Stock Consideration Value and the Total Closing Consideration Value (including each component of each of such calculations).

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“Equity Interests” means, with respect to any Person, any capital stock of, or other ownership, membership, partnership, joint venture or equity interest in, such Person or any indebtedness, securities, options, warrants, call, subscription or other rights or entitlements of, or granted by, such Person or any of its Affiliates that are convertible into, or are exercisable or exchangeable for, or giving any Person any right or entitlement to acquire any such capital stock or other ownership, partnership, joint venture or equity interest, in all cases, whether vested or unvested.

“Expense Fund Per Share” means the Expense Fund divided by the Participating Share Number.

“Indemnity Escrow Amount” means $[***].

“Indemnity Escrow Funds” means the Indemnity Escrow Amount, as the same may be increased by investment earnings or decreased by investment losses, the indemnification obligations owed to Acquirer Indemnified Parties from time to time or Escrow Distributions.

“Initial Cash Amount” means $20,000,000, or, if Acquirer has made a Cash Election, $30,000,0000.

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

“FDA” means the U.S. Food and Drug Administration.

“Fraud” means fraud under Delaware law with an element of scienter.

“Fully Diluted Company Capital Stock” means the sum, without duplication, of (i) aggregate number of shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time (on an as-converted to Company Common Stock basis), (ii) the aggregate number of shares of Company Common Stock that are issuable upon the exercise of Company Options (whether vested or unvested) but excluding any Company Options that are not In-the-Money Company Options, and (iii) the aggregate number of shares of Company Common Stock purchasable under or otherwise subject to any direct or indirect, vested or unvested, rights (other than Company Options) to acquire shares of Company Capital Stock on an as-converted-to-Company Common Stock basis (whether or not immediately exercisable) outstanding immediately prior to the Effective Time.

“GAAP” means United States generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, that are applicable to the circumstances of the date of determination, consistently applied.

“Government Contract” means any contract, task order, delivery order, purchase order, grant, or other binding commitment between the Company and a Governmental Entity. “Government Contract” also includes any subcontract, subgrant, reseller agreement, or other agreement (at any tier) of the Company (i) with another entity under a prime contract held by the Company and (ii) with another entity that holds either a prime contract or other agreement with such a governmental agency or a subcontract or other agreement (at any tier) under such a prime contract.

***Certain Confidential Information Omitted

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“Government Contract Bid” means any quotation, offer, bid or proposal made by the Company that, if accepted, would result in or lead to a Government Contract. For avoidance of doubt, the term Government Contract Bid includes only quotations, offers, bids or proposals that have not expired and for which award has not been made.

“Government Official” means (i) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Entity, (ii) any political party, political party official or candidate for political office, (iii) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a company, business, enterprise or other entity owned, in whole or in part, or controlled by any Governmental Entity or (iv) any official, employee, agent or representative of, or any Person acting in an official capacity for or on behalf of, a public international organization.

“Governmental Entity” means any supranational, national, state, municipal, local or foreign government, any court, tribunal, arbitrator, administrative agency, commission or other Government Official, authority or instrumentality, or any governmental regulatory authority involved in regulating any aspect of the market approval, sale, distribution or use of a Company Product, in each case whether domestic or foreign, any stock exchange or similar self-regulatory organization or any quasi-governmental or private body exercising any executive, legislative, judicial, regulatory, Tax Authority or other functions of, or pertaining to, government authority (including any governmental or political division, department, agency, commission, instrumentality, official, organization, unit, body or entity and any court or other tribunal).

“Group” has the meaning ascribed to such term under Section 13(d) of the Exchange Act, the rules and regulations thereunder and related case law.

“Hazardous Substance” shall mean any material, waste, emission, or substance that has been designated by Law (including federal, state, foreign and local Law), or by any Governmental Entity pursuant to authority provided by applicable federal, state or local Law to be radioactive, toxic, a pollutant, a contaminant, hazardous, or otherwise a danger to health, reproduction, or the environment.

“Hazardous Substance Activity” shall mean the transportation, transfer, recycling, storage, use, treatment, manufacture, removal, remediation, release, labeling, exposure of others to, sale, or distribution of any Hazardous Substance or any product or waste containing a Hazardous Substance, including any required payment of waste fees or charges (including so-called e-waste fees) and compliance with any recycling, product take-back or product content requirements (including RoHS, WEEE, and China RoHS) mandated by Law.

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“Health Laws” means all applicable laws pertaining to health care regulatory matters to the extent applicable to the Company’s business as currently conducted, including, but not limited to: (i) the Medicare statute (Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq.), the Medicaid statute (Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.), including the Medicare Advantage program and any other federal, state or local governmental health care programs, including applicable program requirements; (ii) any criminal Laws relating to health care, including all criminal false claims statutes (e.g., 18 U.S.C. Sections 287 and 1001) and the Eliminating Kickbacks in Recovery Act (18 U.S.C. § 220); (iii) the Civil Monetary Penalties Law, 42 U.S.C. §§ 1320a-7a and 1320a-7b; (iv) all applicable laws concerning the privacy and/or security of sensitive data, including the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d-1329d-8, as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. § 17921 et seq.) and state data breach notification Laws; (v) all applicable laws relating to health care fraud and abuse, including but not limited to the civil False Claims Act of 1863 (31 U.S.C. Section § 3729 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b) et seq.), and the Stark Act (42 U.S.C. § 1395nn); (vi) all federal and state self-referral prohibitions, state anti-kickback, illegal remuneration and provider conflict of interest Laws; (vii) the Exclusions Law (42 U.S.C. Section 1320a‑7); (viii) the CLIA; (ix) all applicable state Laws governing laboratory and laboratory personnel licensure; (x) the Federal Food, Drug, and Cosmetic Act, including the rules, regulations, and guidance promulgated thereunder (“FDCA”); (xi) the Public Health Service Act, and the rules, regulations, and guidance promulgated thereunder (“PHSA”); and (xii) all other applicable quality, safety certification and accreditation standards and requirements, including any law the purpose of which is to ensure the safety, efficacy and quality of medical, biotechnology, diagnostic and similar products by regulating the research, development, manufacturing and distribution of these products, including, but not limited to, Laws relating to good laboratory practices, good clinical practices, investigational use, product marketing authorization, manufacturing facilities compliance and approval, good manufacturing practices, labeling, advertising, promotional practices, safety surveillance, record keeping and filing of required reports.

“Intellectual Property Rights” means any and all of the following and all rights in, arising out of, or associated therewith, which may exist or be created under the laws of any and all jurisdictions throughout the world, in any and all media, for the entire duration of such rights: (a) patents, industrial property rights, utility models, industrial designs, and all applications therefor and all reissues, divisions, re-examinations, renewals, extensions, combinations, statutory invention registrations, provisionals, continuations and continuations-in-part thereof and equivalent or similar rights in, arising out of, or associated with inventions and discoveries anywhere in the world (whether or not patentable), including invention disclosures, improvements, concepts, methods, processes, protocols, specifications, designs, formulae, patterns, and techniques and other forms of technology; (b) rights in, arising out of, or associated with Confidential Information; (c) trade names, logos, trade dress, trademarks and service marks and other source identifiers, and all registrations and applications therefor, and any and all goodwill associated with and symbolized by the foregoing items; (d) Internet domain names, domain name applications and registrations, social media accounts, Internet and World Wide Web URLs or addresses and similar rights, and any and all goodwill associated with and symbolized by the foregoing items; (e) works of authorship and rights in, arising out of, or associated therewith, including copyrights, copyright registrations and applications therefor and all other rights corresponding thereto, software, source code and executable code (whether embodied in software, firmware or otherwise), programs, user interfaces, application programming interfaces, protocols, architectures, documentation, annotations, comments, files, records, schematics, data, data structures, databases, data compilations and collections, database rights, mask works, mask work rights, mask work registrations and applications therefor and any equivalent or similar rights in semiconductor masks, layouts, architectures or topology, genomic and/or patient data databases, and moral and economic rights of authors and inventors, however denominated; (f) rights of privacy and publicity; (g) all similar or equivalent rights to any and all of the foregoing in (a) through (f); (h) all tangible embodiments of the foregoing in (a) through (g) (including samples, summaries and studies); and (i) all rights to prosecute and perfect the same through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights to sue or seek other remedies arising from or relating to the foregoing.

“IRS” means the United States Internal Revenue Service.

“knowledge” means, with respect to any fact, circumstance, event or other matter in question, the knowledge, in the case of the Company, of Mike Hoerres, Rebecca Critchley-Thorne, Ahmad Algohary, Alicia Angelo, Jon Shuler, Ian Fladoos, Cheryl Swass, Lisa Bichsel and Stephanie Kitsko of such fact, circumstance, event or other matter after reasonable inquiry.

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“Law” means, with respect to any Person, any federal, state, foreign, local, municipal or other law, statute, constitution, legislation, principle of common law, resolution, ordinance, code, edict, decree, rule, directive, license, permit, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity and any Orders applicable to such Person or such Person’s Affiliates or to any of their respective assets, properties or businesses, including AML Laws, Health Laws, State Licensing Laws, OFAC Laws, Unclaimed Property Laws, data privacy laws, Tax laws and data security laws.

“Legal Proceeding” means any private or governmental action, inquiry, claim, counterclaim, proceeding, suit, hearing, litigation, audit or investigation, in each case whether civil, criminal, administrative, judicial or investigative, or any appeal therefrom.

“Liabilities” (and, with correlative meaning, “Liability”) means all debts, liabilities, commitments and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, liquidated or unliquidated, asserted or unasserted, known or unknown, whenever or however arising, including those arising under Law or any Legal Proceeding or Order of a Governmental Entity and those arising under any Contract, regardless of whether such debt, liability, commitment or obligation would be required to be reflected on a balance sheet prepared in accordance with GAAP or disclosed in the notes thereto.

“Lock-Up Restriction” means a lock-up arrangement, to be implemented through instructions by Acquirer to its transfer agent, legends and any other procedures deemed reasonably appropriate by Acquirer, which prevents the sale, transfer or other disposition of any shares of Acquirer Common Stock issued pursuant to the Merger, or any interest therein, for a period of ninety (90) days following the Closing Date.

“Material Adverse Effect” with respect to any Person, means any change, event, development, state of facts, violation, inaccuracy, circumstance or effect (each, an “Effect”) that, individually or taken together with all other Effects, and regardless of whether such Effect constitutes an inaccuracy in the representations or warranties made by, or a breach of the covenants, agreements or obligations of, such Person herein, (i) has had or would reasonably be expected to have a material adverse effect on the business, financial condition, assets (including intangible assets), operations or results of operations of such Person and its subsidiaries, taken as a whole, except to the extent (and only to the extent) that any such Effect results from: (A) general economic conditions (or changes in such conditions) in the United States or any other country or region in the world, or conditions in the global economy generally, (B) conditions in the securities markets, capital markets, credit markets, currency markets or other financial markets in the United States or any other country or region in the world, including (1) changes in interest rates in the United States or any other country or region in the world and changes in exchange rates for the currencies of any countries and (2) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world, (C) changes in the molecular diagnostic industry in which such Person operates, (D) changes in Law or (or the interpretation thereof) or changes in GAAP or other accounting standards (or the interpretation thereof), (E) the effect of any change arising in connection with earthquakes, fires, hurricanes, tsunamis, tornadoes, floods, mudslides and other similar destructive natural events, or any epidemics or pandemics (including COVID-19), (F) political conditions in the United States or the effect of any change arising in connection with acts of war, sabotage or terrorism or military actions, sabotage, curfews, riots, demonstrations or public disorders or any worsening or escalation of the foregoing, (G) the announcement of this Agreement or the pendency or consummation of the transactions contemplated hereby, or (H) any failure by such Person to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures, unless such changes or failures would otherwise be excepted from this definition); except, in the case of clauses (A) through (F), to the extent that any of such Effects affect such Person disproportionately as compared to other molecular diagnostics companies in the United States; or (ii) materially and adversely affects, or would reasonably be likely to materially and adversely affect, such Person’s ability to perform or comply with the material covenants, agreements or obligations of such Person herein or to consummate the Transactions in accordance with this Agreement and Law.

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“Maximum Earnout Value” means an amount equal to $50,000,000.

“Merger Consideration” means, collectively, the cash and Acquirer Common Stock to which holders of Company Capital Stock and In-the-Money Company Options shall become entitled pursuant to pursuant to Section 1.3(b)(i), Section 1.3(b)(ii) and Section 1.3(b)(iii), which, for the avoidance of doubt, excludes any Earnout Payments (if and when earned) pursuant to Section 1.7.

“Nasdaq” means the NASDAQ Global Market.

“Net Revenue” shall mean the amounts, determined in accordance with GAAP and Acquirer’s revenue recognition policies, that Acquirer and its Affiliates recognize for providing TissueCypher Tests for customers during the relevant period [***], reduced only by the following amounts to the extent allocable to such sales of the TissueCypher Test to third parties and to the extent consistent with Acquirer’s practices for products of like character: [***]. When calculating the Net Revenue for any period, the amount of such sales in foreign currencies shall be converted into United States dollars pursuant to the foreign exchange rate used by Acquirer in its financial reporting in accordance with GAAP for such period.

“Net Working Capital” means, as of any time of determination, the aggregate amount of current assets of the Company as of such time, minus the aggregate amount of current liabilities of the Company as of such time, in each case determined on a consolidated basis in accordance with GAAP. “Net Working Capital” shall (a) not include any amounts with respect to Unpaid Company Transaction Expenses, Company Debt, or Closing Cash and (b) not include any amounts with respect to Tax assets.

“Non-Employee Option” means each Company Option that is not an Employee Option.

“OFAC Laws” means all laws (1) administered and enforced in whole or in part by the Office of Foreign Assets Control of the United States Department of the Treasury or (2) otherwise relating to the enforcement of economic and trade sanctions based on United States foreign policy and national security goals, including, but not limited to, the following (together with their implementing regulations, in each case, as amended from time to time): the International Security and Development Cooperation Act (ISDCA) (22 U.S.C. §23499aa-9 et seq.); the Trading with the Enemy Act (TWEA) (50 U.S.C. §5 et seq.); the International Emergency Economic Powers Act (50 U.S.C. §1701 et seq.); the Antiterrorism and Effective Death Penalty Act (8 U.S.C. §1189 et seq.); and the United Nations Participation Act (22 U.S.C. §287c et seq.).

***Certain Confidential Information Omitted

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“Option Consideration” means, for any In-the-Money Company Option: an amount in cash, without interest, equal to the product of (i) the Spread Value of such In-the-Money Company Option multiplied by (ii) the number of shares of Company Common Stock that were subject to such In-the-Money Company Option immediately prior to the Effective Time.

“Order” means any judgment, writ, decree, stipulation, determination, decision, award, corporate integrity agreement, deferred prosecution agreement, settlement agreement, rule, preliminary or permanent injunction, temporary restraining order or other order.

“ordinary course of business” means any action taken by a Person if: (i) such action is consistent with such Person’s past practice, (ii) is taken in the ordinary course of such Person’s normal day-to-day operations and (iii) such action is not required under Law or the organizational documents of such Person to be authorized by such Person’s stockholders, board of directors or any committee thereof and does not require any other separate or special authorization pursuant to any Contract or Law.

“Pandemic Response Laws” means the CARES Act, the Families First Act, the COVID-related Tax Relief Act of 2020, the Payroll Tax Executive Order, and any other similar or additional federal, state, local, or foreign Law, or administrative guidance intended to benefit taxpayers in response to the COVID-19 pandemic and associated economic downturn.

“Participating Share Number” means the sum, without duplication, of (i) aggregate number of shares of Company Capital Stock that are issued and outstanding immediately prior to the Effective Time (on an as-converted to Company Common Stock basis) and (ii) the aggregate number of shares of Company Common Stock purchasable under or otherwise subject to any direct or indirect, vested or unvested, rights (other than Company Options) to acquire shares of Company Capital Stock on an as-converted-to-Company Common Stock basis (whether or not immediately exercisable) outstanding immediately prior to the Effective Time (excluding any Company Options that are not In-the-Money Company Options).

“Payroll Tax Executive Order” means the Presidential Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, as issued on August 8, 2020 and including any administrative or other guidance published with respect thereto by any Governmental Entity (including IRS Notice 2020-65).

“Per Share Cash Percentage” means (i) with respect to shares of Company Capital Stock held by Unaccredited Securityholders, 100% and (ii) with respect to shares of Company Capital Stock held by Accredited Securityholders, the percentage resulting from dividing (i) the Adjusted Cash Consideration by (ii) the sum of (A) the Adjusted Cash Consideration plus (B) the Stock Consideration Value.

“Per Share Closing Consideration” means, for any share of Company Capital Stock, (i) an amount in cash, without interest, equal to the product of (A) the Per Share Closing Total Value multiplied by (B) the Per Share Cash Percentage and (ii) a number of shares of Acquirer Common Stock equal to the quotient of (A) the product of (x) the Per Share Closing Total Value multiplied by (y) the Per Share Stock Percentage divided by (B) the Acquirer Stock Price.

“Per Share Earnout Payment” shall mean for each Earnout Payment that becomes payable the quotient of (i) the Earnout Payment amount, divided by (ii) the Fully Diluted Company Capital Stock.

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“Per Share Excess Amount” shall mean an amount in cash equal to the quotient of (i) the Excess Amount divided by (ii) the Fully Diluted Company Capital Stock.

“Per Share Stock Percentage” means the percentage equal to (i) 100% minus (ii) the Per Share Cash Percentage.

“Per Share Closing Total Value” means an amount equal to the quotient of (i) the sum of (A) the Total Closing Consideration Value plus (B) the Estimated Aggregate Exercise Amount divided by (ii) the Fully Diluted Company Capital Stock.

“Permitted Encumbrances” means: (i) statutory liens for Taxes that are not yet due and payable or liens for Taxes being contested in good faith by any appropriate proceedings for which adequate reserves have been established on the face of the Company Balance Sheet in accordance with GAAP, (ii) statutory liens to secure obligations to landlords, lessors or renters under leases or rental agreements, (iii) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by Law, (iv) statutory liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies and other like liens, and (v) liens in favor of customs and revenue authorities arising as a matter of Law to secure payments of customs duties in connection with the importation of goods.

“Person” means any natural person, company, corporation, limited liability company, general partnership, limited partnership, limited liability partnership, trust, estate, proprietorship, joint venture, business organization or Governmental Entity.

“Personal Data” means (A) any information relating to an identified or identifiable natural person or household including, without limitation, names, email addresses, phone numbers, job titles, employee identification numbers, location information, ZIP codes, Social Security Numbers, driver’s license numbers, government identification numbers, birthdates, addresses, resumes, health information (as defined in 45 CFR § 160.103), credit or debit card numbers, financial account numbers, MAC addresses, IP addresses, unique device identifiers, Unique Identifier Headers (UDIH), serial numbers, account or authentication credentials, passwords and to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person or any other piece of information that allows the identification of a natural person or household is otherwise considered personally identifiable information, personal information, nonpublic personal information, individually identifiable health information or other analogous term under Law; (B) any information or data collected in relation to on-line, mobile or other electronic activities or communications that can reasonably be associated with a particular Person, household, user, computer, mobile or other device, or instance of any application or mobile application; (C) any information or data collected in relation to off-line activities or communications that can reasonably be associated with or that derives from a particular Person, household, user, computer, mobile or other device or instance of any application or mobile application, (D) any device ID, device activity data or data collected from a networked physical object, and (E) any of the foregoing data that is aggregated, anonymized or de-identified.

“PPP” means the Paycheck Protection Program administered by the SBA.

“Pre-Closing Tax Period” shall mean any taxable period or portion thereof ending on or prior to the Closing Date, including the portion of any Straddle Tax Period ending on and including the Closing Date.

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“Pre-Closing Taxes” shall mean any and all Taxes (i) of the Company relating or attributable to any Pre-Closing Tax Period, including any Taxes that are not yet due and payable (including any deferred payroll taxes), (ii) of any member of an affiliated, consolidated, combined or unitary group of which the Company (or any predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local or non-U.S. Law or regulation, (iii) of any Person other than the Company imposed on the Company as a transferee or successor, by Contract or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, and/or (iv) arising in connection with any payment required pursuant to, or arising as a result of, the transactions contemplated by this Agreement or any other Transaction Document, including any Transaction Payroll Taxes and the Company Stockholders’ share of Transfer Taxes pursuant to Section 5.13(c); provided, however, that Pre-Closing Taxes shall not include Acquirer’s share of Transfer Taxes pursuant to Section 5.13(c). For this purpose, in the case of Taxes based on income, sales, proceeds, profits, receipts, wages, compensation or similar items and all other Taxes that are not imposed on a periodic basis, the amount of such Taxes that have accrued through the Closing Date for a Straddle Tax Period shall be deemed to be the amount that would be payable if the taxable year or period ended at the end of the day on the Closing Date based on an interim closing of the books (and in the case of any Taxes attributable to the ownership of any equity interest in any partnership or other “flowthrough” entity or “controlled foreign corporation” (within the meaning of Section 957(a) of the Code or any comparable state, local or non-U.S. Law), as if the taxable period of such partnership or other “flowthrough” entity or “controlled foreign corporation” ended as of the end of the Closing Date), except that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions, other than with respect to property placed in service after the Closing), shall be allocated on a per diem basis. In the case of any other Taxes that are imposed on a periodic basis for a Straddle Tax Period, the amount of such Taxes that have accrued through the Closing Date shall be the amount of such Taxes for the relevant period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period) multiplied by a fraction the numerator of which shall be the number of calendar days from the beginning of the period up to and including the Closing Date and the denominator of which shall be the number of calendar days in the entire period.

“Pro Rata Share” means, with respect to each Company Stockholder, a percentage equal to (i) the portion of the Merger Consideration such Company Stockholder is entitled receive pursuant to Section 1.3(a), Section 1.3(b)(i), Section 1.3(b)(ii) and/or Section 1.3(b)(iii) divided by (ii) the aggregate Merger Consideration all Company Stockholders are entitled to receive pursuant to Section 1.3(a), Section 1.3(b)(i), Section 1.3(b)(ii) and/or Section 1.3(b)(iii), in each such case, valuing all shares of Acquirer Common Stock issuable pursuant to Section 1.3(b)(i), Section 1.3(b)(ii) and/or Section 1.3(b)(iii) at the Acquirer Stock Price.

“Process” or “Processing” means, with respect to data, any operation or set of operations such as collection, receipt, recording, organization, safeguarding, security, structuring, storage, adaptation, enhancement, enrichment or alteration, ingestion, compilation, combination, retrieval, consultation, analysis, use, disclosure by transmission, sharing, transfer, dissemination or otherwise making available, alignment or combination, restriction, de-identification, erasure or destruction.

“Registered” means registered with or the subject of a pending application before any Governmental Entity or Internet domain name registrar.

“Reimbursement Condition” means (i) the Medicare Clinical Laboratory Fee Schedule (“CLFS”) rate for the TissueCypher Test is at least $[***] per claim for all of FY 2022 and [***]% of Medicare claims for TissueCypher Tests in FY 2022 are paid at [***]% or higher of the $[***] per claim rate; (ii) no more than [***]% of Medicare claims for the TissueCypher Test in FY 2022 are rejected for payment; and (iii) the Surviving Corporation does not receive from [***] a local coverage decision denying coverage for the TissueCypher Test for FY 2022 or any other communication

***Certain Confidential Information Omitted

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from [***] during the period from the Closing Date until [***], indicating that reimbursement or payment for TissueCypher Tests will be denied or limited.

“Reimbursement Obligations” shall have the meaning set forth on Schedule 8.1(i).

“Representatives” means, with respect to a Person, such Person’s officers, directors, Affiliates, stockholders or employees, or any investment banker, attorney, accountant, auditor or other advisor or representative retained by any of them.

“Sanctions” means any and all economic sanctions, trade sanctions, financial sanctions, sectoral sanctions, trade embargoes, anti-terrorism laws and other sanctions laws, regulations or embargoes, including those imposed, administered or enforced from time to time by (i) the United States of America, including those administered by OFAC, the U.S. Department of State, the U.S. Department of Commerce, or through any existing executive order, (ii) the United Nations Security Council, (iii) the European Union or any European Union member state, (iv) Her Majesty’s Treasury of the United Kingdom, or (v) any other relevant Governmental Entity.

“Sanctions Target” means any Person (i) that is the subject or target of any Sanctions, (ii) named in any Sanctions-related list maintained by OFAC, the U.S. Department of State, the U.S. Department of Commerce or the U.S. Department of the Treasury, including the OFAC list of “Specially Designated Nationals and Blocked Persons”, (iii) operating, organized or resident in a country or territory that is itself the subject of territory-wide sanctions, (iv) with which any party is prohibited from dealing or otherwise engaging in any transaction by any Sanctions or (v) owned or controlled by any such Person or Persons described in the foregoing clauses (i)-(v).

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

“SEC” means the United States Securities and Exchange Commission.

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

“Senior Non-U.S. Political Figure” means (i) a senior official in the executive, legislative, administrative, military, or judicial branches of a non-U.S. government (whether elected or not), (ii) a senior official of a major non-U.S. political party, (iii) a senior executive of a non-U.S. government-owned corporation or (iv) any corporation, business, or other entity that has been formed by, or for the benefit of, any individual described in clauses (i), (ii), or (iii) of this definition.

“Series A-1 Closing Per Share Consideration” means, for any share of Company Capital Stock, (i) an amount in cash, without interest, equal to the product of (A) the Series A-1 Closing Per Share Value multiplied by (B) the Per Share Cash Percentage, and (ii) a number of shares of Acquirer Common Stock equal to the quotient of (A) the product of (x) the Series A-1 Closing Per Share Value multiplied by (y) the Per Share Stock Percentage divided by (B) the Acquirer Stock Price.

“Series A-1 Closing Per Share Value” means an amount equal to (i) the Series A-1 Liquidation Preference Per Share plus (ii) the Per Share Closing Consideration.

“Series A-1 Liquidation Preference Per Share” means $0.384615.

“Series B-1 Closing Per Share Consideration” means, for any share of Company Capital Stock, (i) an amount in cash, without interest, equal to the product of (A) the Series B-1 Closing Per Share Value multiplied by (B) the Per Share Cash Percentage, and (ii) a number of shares of Acquirer Common Stock equal to the quotient of (A) the product of (x) the Series B-1 Closing Per Share Value multiplied by (y) the Per Share Stock Percentage divided by (B) the Acquirer Stock Price.

***Certain Confidential Information Omitted

A -14

“Series B-1 Closing Per Share Value” means an amount equal to (i) the Series B-1 Liquidation Preference Per Share plus (ii) the Per Share Closing Consideration.

“Series B-1 Liquidation Preference Per Share” means $1.807503.

“Software” means all computer software, the tangible media on which it is recorded (in any form) and all supporting documentation, including, without limitation, input and output format, program listings, narrative descriptions, source code, object code, executable code, algorithms, logic and development tools, operating instructions, construction and design specifications, training materials and user manuals, and data and databases, including those pertaining to the design, operation, maintenance, support, development, performance, and configuration of such software, together with all translations, adaptations, modifications, derivations, combinations and derivative works thereof.

“Specified Representations” means, collectively, the representations and warranties set forth in Section 2.1, Section 2.2, Section 2.3(a), Section 2.3(b) and Section 2.3(e), the first sentence of Section 2.5, Section 2.10, Section 2.14, Section 2.18, Section 3.1, Section 3.2(a) and Section 3.7.

“Spread Value” means, with respect to any In-the-Money Company Option, an amount equal to (i) the Per Share Closing Total Value less (ii) the per share exercise price of such In-the-Money Company Option.

“Stock Consideration Value” means $10,000,000, provided that if a Cash Election has been made, the Stock Consideration Value shall be $0.

“Straddle Tax Period” shall mean any taxable period beginning on or before and ending after the Closing Date.

“Takeover Inquiry” means, with respect to the Company, an inquiry, indication of interest or request for information (other than an inquiry, indication of interest or request for information made or submitted by the Company to Acquirer) that would reasonably be expected to lead to an Takeover Proposal.

“Takeover Proposal” shall mean an offer, proposal or indication of interest involving the Company and any third party relating to any transaction or series of related transactions involving (i) any acquisition or purchase by any third party, directly or indirectly, of any class of outstanding voting or equity securities of the Company, or any tender offer (including a self-tender) or exchange offer that, if consummated, would result in any third party beneficially owning 15% or more of the outstanding voting or equity securities of the Company, (ii) any merger, acquisition, amalgamation, consolidation, business combination, joint venture or other similar transaction involving the Company, the business of which constitutes 15% or more of the net revenues, net income or assets of the Company, or (iii) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of the Company, the business of which constitutes 15% or more of the net revenues, net income or assets of the Company, in each case other than any such transaction with Acquirer or any of its Affiliates; provided, however, that a “Takeover Proposal” shall not include (or take into account) any securities issued pursuant to the exercise, exchange or conversion of securities outstanding on the date of this Agreement.

“Target Working Capital” means an amount equal to $0.

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“Tax” shall mean (i) any net income, alternative or add-on minimum tax, gross income, estimated, gross receipts, sales, use, ad valorem, value added, transfer, franchise, fringe benefit, capital stock, profits, license, registration, withholding, payroll, social security (or equivalent), employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible or intangible), environmental or windfall profit tax, custom duty or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest or any penalty, addition to tax or additional amount (whether disputed or not) imposed by any Tax Authority, (ii) any Liability for the payment of any amounts of the type described in clause (i) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any Taxable period and (iii) any Liability for the payment of any amounts of the type described in clause (i) or (ii) of this sentence as a result of being a transferee of or successor to any Person or as a result of any express or implied obligation to assume such Taxes or to indemnify any other Person.

“Tax Representations” means the representations and warranties set forth in Section 2.12

“Tax Return” means any return, statement, report or form (including estimated Tax returns and reports, withholding Tax returns and reports, any schedule or attachment or amendment thereto, and information returns and reports) filed or required to be filed with respect to Taxes.

“Third-Party Intellectual Property” means any and all Intellectual Property Rights owned or purported to be owned by a third party.

“TissueCypher Technology” means the spatial analytics platform developed and owned by the Company as of the Agreement Date, including the Company’s Intellectual Property, that integrate the expression results of multiple biomarkers and morphology from small tissue biopsies with proprietary algorithms to produce automated diagnostic and prognostic results.

“TissueCypher Test” means molecular diagnostic and prognostic tests performed with the Company’s TissueCypher Technology.

“Total Company Series A-1 Preferred Stock” means the sum, without duplication, of the aggregate number of shares of Company Series A-1 Preferred Stock that are issued and outstanding immediately prior to the Effective Time.

“Total Company Series B-1 Preferred Stock” means the sum, without duplication, of the aggregate number of shares of Company Series B-1 Preferred Stock that are issued and outstanding immediately prior to the Effective Time.

“Total Closing Consideration Value” means the sum of (i) the Adjusted Cash Consideration plus (ii) the Stock Consideration Value minus (iii) the Total Liquidation Preference.

“Total Series A-1 Liquidation Preference” means the product of (i) the Series A-1 Liquidation Preference Per Share multiplied by (ii) the Total Company Series A-1 Preferred Stock.

“Total Series B-1 Liquidation Preference” means the product of (i) the Series B-1 Liquidation Preference Per Share multiplied by (ii) the Total Company Series B-1 Preferred Stock.

“Total Liquidation Preference” means the sum of (i) the Total Series A-1 Liquidation Preference plus (ii) the Total Series B-1 Liquidation Preference.

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“Transaction Document” means, collectively, this Agreement and each other agreement, certificate or other document to be entered into in connection with the Transactions.

“Transaction Payroll Taxes” shall mean the employer portion of payroll, employment or similar Taxes incurred in connection with any Option Consideration payable to employees of the Corporation, Bonus Payments, bonus, severance or other termination payments, change-in-control payments, or any other compensatory payment of the Company made in connection with the Transactions, whether payable prior to, on or after the Closing Date, and whether payable by Acquirer, the Company or any of their Affiliates.

“Unclaimed Property Laws” means all laws that may be enforced by any Governmental Entity relating to unclaimed property, abandoned property and escheat, including travelers checks, wire transfers, stored value cards, money orders and other payment instruments, whether or not negotiable.

“Unaccredited Securityholder” shall mean a Company Stockholder who is not an Accredited Securityholder.

“Unpaid Company Transaction Expenses” means the Company Transaction Expenses that remain unpaid as of immediately prior to the Closing, including any contingent payments that become payable in connection with any Earnout Payments.

Other capitalized terms used herein and not defined in this Exhibit A shall have the meanings assigned to such terms in the following Sections:

Term	Section
280G Stockholder Approval	5.14
401(k) Plan	1.2(b)(iv)
Accounts Receivable	2.4(e)
Acquirer	Preamble
Acquirer Adjustment Calculations	1.6(b)
Acquirer Adjustment Statement	1.6(b)
Acquirer Financial Statements	3.4(a)
Acquirer Indemnified Party	8.1
[***]	5.10(b)
Acquirer Records	1.7(b)(i)
Acquirer Prepared Returns	5.13(b)
Acquirer SEC Documents	3.3(a)
Agreement	Preamble
Agreement Date	Preamble
AIQ	Recitals
Applicable Privacy Laws	2.11(a)
Author	2.10(h)
Automatic Resale Registration Statement	5.15(a)
Bonus Payment	1.3(a)
Business Day	9.3
Bylaws	1.2(b)(ii)
Cash Election	5.18
Certificate of Incorporation	1.2(b)(ii)
Certificate of Merger	1.1(d)
Claim Notice	8.2

***Certain Confidential Information Omitted

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Term	Section
Closing	1.1(c)
Closing Date	1.1(c)
COBRA	2.13(c)
Company	Preamble
Company Authorization	2.8(b)
Company Balance Sheet	2.4(b)
Company Balance Sheet Date	2.4(b)
Company Board	Recitals
Company Capitalization Representations	6.3(a)(i)
Company Disclosure Letter	Article II
Company Employee Plans	2.13(a)
Company Indemnification Provisions	5.17(a)
Company Indemnified Parties	5.17(a)
Company Securityholder Indemnified Party	8.2
Company Software	2.10(j)
Company Stockholder Approval	2.3(b)
Company Voting Debt	2.2(e)
Confidentiality Agreement	5.3(a)
COVID-19 Measures	2.13(j)
Data Agreements	2.11(a)(ii)
Designated Employees	5.10(a)
Earnout Payment	1.7(a)
Earnout Payment Schedule	1.7(b)(ii)
Effective Time	1.1(d)
e-Privacy Directive	2.11(a)(i)
ERISA	2.13(a)
ERISA Affiliate	2.13(a)
Escrow Account	1.4(c)
Escrow Agent	1.4(c)
Escrow Agreement	1.2(a)(ii)
Escrow Distributions	8.7(d)
Escrow Fund	1.4(c)
EU	2.11(a)(i)
Excess Amount	1.6(f)(ii)
Exchange Agent	1.4(a)(i)
Exchange Agent Agreement	1.2(a)(iii)
Exchange Documentation	1.4(a)(i)
Existing Arrangement Employees	5.10(a)
Existing Equity Documents	2.2(b)
Expense Fund	9.1(c)
Federal Health Care Programs	2.8(f)
Final Adjusted Cash Consideration	1.6(f)
Financial Statements	2.4(a)
Form 8-K/A	5.15(a)
FY 2022	1.7(a)(i)
GDPR	2.11(a)(i)
Government Contract	2.17(a)(xxiv)
HIPAA	2.11(a)(i)

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Term	Section
Indemnification Demand	8.4(a)
Indemnification Dispute Notice	8.4(b)
Indemnified Party	8.3
Indemnifying Party	8.3
Indemnity Deductible	8.6(b)
In-the-Money Company Option	1.3(b)(iv)
Joinder Agreement	Recitals
Key Employee(s)	Recitals
Key Employee Agreements	Recitals
Letter of Transmittal	1.4(a)(i)
Lock-Up Agreements	Recitals
Material Contracts	2.17(a)
Merger	Recitals
Merger Sub	Preamble
Net Revenue Earnout Payment	1.7(a)(i)
Net Revenue Report	1.7(b)(ii)
New Litigation Claim	5.6
Non-Controlling Party	8.2
Notice of Objection	1.6(c)
Offer Letter	Recitals
Payment Programs	2.8(g)
Parachute Payment Waiver	1.2(b)(xii)
Permitted Issuances	4.2(e)
Pre-Closing Period	4.1
Registered Intellectual Property Assets	2.10(f)
Reimbursement Condition Earnout Payment	1.7(a)(ii)
Reporting Information	5.15(a)
Required Financials	6.3(f)
Resale Registration Statement	5.15(a)
Reviewing Accountant	1.6(e)
Bonus Payment	1.3(a)
Section 280G Payments	5.14
Security Breach	2.11(d)
Shortfall Amount	1.6(f)(i)
Significant Originator	2.21(c)
Significant Payor	2.21(a)
Significant Supplier	2.21(b)
Software In-Licenses	2.10(j)
Specified Stockholders	Recitals
Spreadsheet	5.8
Statement of Expenses	5.9(b)
Stock Certificates	1.4(a)(i)
Stockholder Notice	5.1(c)
Stockholders’ Agent	Preamble
Surviving Corporation	1.1(a)
Tail Insurance Coverage	5.17(b)
Termination Date	7.1(b)
Third-Party Claim	8.2
Transactions	Recitals
Transfer Taxes	5.13(c)
United States real property holding corporation	2.12(q)
Unresolved Claim	8.7(d)
WARN Act	2.13(t)
Written Consent	5.1(a)

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EXHIBIT B

FORM OF JOINDER AGREMENT

EXHIBIT C

FORM OF ACCREDITED INVESTOR QUESTIONNAIRE

EXHIBIT D

FORM OF LOCK-UP AGREEMENT

EXHIBIT E

FORM OF CERTIFICATE OF MERGER

EXHIBIT F

FORM OF ESCROW AGREEMENT

EXHIBIT G

FORM OF EXCHANGE AGENT AGREEMENT

EXHIBIT H

FORM OF PARACHUTE PAYMENT WAIVER

EXHIBIT I

FORM OF LETTER OF TRANSMITTAL

EXHIBIT J

FORM OF WRITTEN CONSENT

ANNEX A

KEY EMPLOYEES

[***]

***Certain Confidential Information Omitted

ANNEX B

SPECIFIED STOCKHOLDERS

[***]

***Certain Confidential Information Omitted

Schedule 8.1(i)

“Reimbursement Obligations” means any refunds or other amounts owed by the Company to any Federal Health Care Program as a result of directly or indirectly billing any Federal Health Care Program for tests that are not reimbursable under such Federal Health Care Program, including any penalties, fines or other Liabilities resulting from such billing.

FIRST AMENDMENT TO

AGREEMENT AND PLAN OF MERGER

This First Amendment to Agreement and Plan of Merger (this “Amendment”) is made and entered into as of November 29, 2021, by and among Castle Biosciences, Inc., a Delaware corporation (“Acquirer”), Space Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Acquirer (“Merger Sub”), Cernostics, Inc., a Delaware corporation (the “Company”) and Michael J. Hoerres. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Merger Agreement (as defined below).

RECITALS

A. Acquirer, Merger Sub, the Company and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the representative, agent and attorney in fact of the Company Stockholders (the “Stockholders’ Agent”), previously entered into that certain Agreement and Plan of Merger dated October 18, 2021 (the “Merger Agreement”); and

B. Section 9.4 of the Merger Agreement provides that the parties thereto may amend the Merger Agreement by authorized action at any time prior to Closing pursuant to an instrument in writing signed on behalf of each of the parties thereto (except for the Stockholders’ Agent).

C. The parties to this Amendment desire to amend the Merger Agreement as set forth in this Amendment.

AGREEMENT

The parties to this Amendment, intending to be legally bound, agree as follows:

ARTICLE I Additional Party. By execution of this Amendment, Michael J. Hoerres is hereby added as a party to the Merger Agreement for purposes of Section 5.15(a) and Section 5.15(e), as amended.

ARTICLE II Section 1.7(a)(iii). Section 1.7(a)(iii) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

“(iii) Acquirer may, in its sole discretion satisfy any Earnout Payment in cash or through the issuance of a number of shares of Acquirer Common Stock equal to the quotient of (A) the Earnout Payment divided by (B) the Earnout Acquirer Stock Price; provided that only cash will be paid to any Unaccredited Securityholders; provided further that the total number of shares of Acquirer Common Stock that may be issued under this Agreement, including any shares of Acquirer Common Stock issued as Merger Consideration, shall not exceed 5,034,653 shares of Acquirer Common Stock (subject to adjustment for any stock dividend, stock split, stock combination or other similar transaction), which limit is equal to 19.9% of the outstanding shares of Acquirer Common Stock as of the date of this Agreement.”

ARTICLE III Release of Escrow.

3.1. Exhibit A. Exhibit A of the Merger Agreement is hereby amended by adding a new definition of “Escrow Pro Rata” to read as follows:

“Escrow Pro Rata Share” means the number of shares of Company Capital Stock held by a Company Stockholder divided by the total Participating Share Number.

3.2. Section 8.8(c). Section 8.8(c) is hereby deleted in its entirety and replaced with the following:

“(c) Each delivery of any portion of the Indemnity Escrow Amount to Company Stockholders pursuant to Section 8.8(b) shall be made in proportion to the Company Stockholders’ respective Escrow Pro Rata Share of the Indemnity Escrow Amount being delivered.”

ARTICLE IV Audited Financial Statements; Auditor Consent.

4.1. Section 6.3(f). Section 6.3(f) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

“(f) Audited Financial Statements. The Company shall have delivered to Acquirer audited financial statements for the fiscal year ended December 31, 2020 and, if the Closing shall occur after November 15, 2021, interim financial statements for the nine (9) month period ended September 30, 2021 and any other financial statements of Company required to be filed by Acquirer with the SEC in connection with the Transaction or Resale Registration Statement (the “Required Financials”), each in a form that will allow Acquirer to disclose such Required Financials as required pursuant to Rule 3-05 of Regulation S-X of the Securities Act and the Company shall have complied with its obligations in Section 5.15 with respect to the preparation of pro forma financial statements.”

4.2. Section 5.15(e). Section 5.15 of the Merger Agreement is hereby amended by adding new subsection (e) to read as follows:

“(e) If the condition to Closing set forth in Section 6.3(g) is waived by Acquirer prior to Closing, then after the Closing, Michael J. Hoerres shall cooperate with Acquirer to obtain the consent of the Company’s independent auditors, Grossman Yanak & Ford LLP, in a form reasonably acceptable to Acquirer, to the inclusion of the Required Financials and such auditors’ written report thereon, in any report required to be filed by Acquirer with the SEC for any filing to be made with respect to the Merger, provided that the obligations of Michael J. Hoerres under this Section 5.15(e) shall survive from and after the Closing Date for 180 days.”

ARTICLE V Resale Registration Statement. Section 5.15(a) is hereby deleted in its entirety and replaced with the following:

“(a) Each of Acquirer and Michael J. Hoerres shall cooperate with respect to the preparation and filing with the SEC of a registration statement of Acquirer registering the resale by Company Securityholders holding shares of Acquirer Common Stock issued hereunder following Closing (the “Resale Registration Statement”). If Acquirer is eligible to file a Resale Registration Statement on Form S-3 pursuant to Rule 462(e) under the Securities Act (an “Automatic Resale Registration Statement”) registering the resale by the Company Securityholders holding shares of Acquirer Common Stock issued hereunder, Acquirer shall prepare such Automatic Resale Registration Statement and the Form 8-K/A attaching the Required Financials (the “Form 8-K/A”), with the cooperation of Michael J. Hoerres, and, subject to Acquirer’s timely receipt of the Reporting Information and the Company’s performance and compliance with its covenants set forth in this Section 5.15, Acquirer shall use its reasonable best efforts to have such Form 8-K/A and Automatic Resale Registration Statement ready for filing with the SEC within a reasonable period following the Closing, provided that Acquirer shall only be obligated to file the Resale Registration Statement (x) during an “open trading window” as determined by Acquirer’s insider trading policies and (y) no sooner than 20 days after Acquirer’s receipt of the Reporting Information. Acquirer will cause the Resale Registration Statement to comply as to form in all material respects with the applicable provisions of the Securities Act and the rules and regulations thereunder. The Company and, after the Closing, Michael J. Hoerres, shall use its commercially reasonable efforts to: (a) deliver prior to Closing the Required Financials, (b) upon Acquirer’s request, assist Acquirer and its Representatives in the preparation of any pro forma financial statements of the Company that may be required in connection with Acquirer’s SEC reporting obligations related to this Agreement or any of the Transactions or the filing of the Resale Registration Statement, (c) promptly furnish such information as Acquirer may reasonably request in connection with such financial statements, the Resale Registration Statement, or the performance of Acquirer’s SEC reporting obligations relating to this Agreement or any of the Transactions, (d) complete, execute, acknowledge and deliver, or use their reasonable best efforts to cause to be completed, executed, acknowledged and delivered by the appropriate representatives of the Company or Company Securityholders, in each case, such questionnaires and other documents, certificates and instruments as may be reasonably requested by the Acquirer in connection with the filing of the Resale Registration Statement or the financial statements or the performance of Acquirer’s SEC reporting obligations relating to this Agreement or any of the Transactions and (e) cause the Company’s auditors to deliver any consent required to file the Required Financials to comply with Acquirer’s SEC reporting obligations or file the Resale Registration Statement (the Required Financials, together with the information in (b), (c), and (d), the “Reporting Information”). Subject to Acquirer’s timely receipt of the Reporting Information and the Company’s and Michael J. Hoerres’ performance and compliance with their respective covenants set forth in this Section 5.15, Acquirer shall use its reasonable best efforts to file the Form 8-K/A with the SEC as soon as reasonably practicable following its preparation. Notwithstanding any other provision of this Section 5.15(a) to the contrary, the obligations of Michael J. Hoerres under this Section 5.15(a) shall survive from and after the Closing Date for 180 days.”

ARTICLE VI No Further Amendment or Waiver. Except as expressly provided in this Amendment, all of the terms and conditions of the Merger Agreement remain unchanged and continue in full force and effect.

ARTICLE VII Effect of Amendment. This Amendment shall form a part of the Merger Agreement for all purposes, and each party to this Amendment and to the Merger Agreement shall be bound by this Amendment.

ARTICLE VIII Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without reference to such state’s principles of conflicts of law that would refer a matter to different jurisdiction.

ARTICLE IX No Waiver. Except as specifically set forth herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of the parties under the Merger Agreement nor shall it constitute a waiver of any provision of the Merger Agreement.

ARTICLE X Entire Agreement; Counterparts. This Amendment, the Merger Agreement (as amended by this Amendment) and the documents and instruments and other agreements specifically referred to in the Merger Agreement or delivered pursuant thereto set forth the entire understanding of the parties hereto and thereto relating to the subject matter hereof and thereof and supersede all prior agreements and understandings among or between any of the parties relating to the subject matter hereof and thereof. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto; it being understood and agreed that all parties hereto need not sign the same counterpart. The delivery by facsimile or by electronic delivery in PDF format of this Amendment with all executed signature pages (in counterparts or otherwise) shall be sufficient to bind the parties hereto to the terms and conditions set forth herein. All of the counterparts will together constitute one and the same instrument and each counterpart will constitute an original of this Amendment.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.

	Castle Biosciences, Inc.

	By:	/s/ Derek Maetzold
	Name:	Derek Maetzold
	Title:	President and Chief Executive Officer

	Space Merger Sub, Inc.

	By:	/s/ Derek Maetzold
	Name:	Derek Maetzold
	Title:	President

IN WITNESS WHEREOF, the parties to this Amendment have caused this Amendment to be executed and delivered as of the date first set forth above.

	Cernostics, Inc.

	By:	/s/ Michael J. Hoerres
	Name:	Michael J. Hoerres
	Title:	Chief Executive Officer

	Michael J. Hoerres

	/s/ Michael J. Hoerres

Exhibits
Exhibit A	-	Certain Definitions
Exhibit B	-	Form of Joinder Agreement
Exhibit C	-	Form of Accredited Investor Questionnaire
Exhibit D	-	Form of Lock-Up Agreement
Exhibit E	-	Form of Certificate of Merger
Exhibit F	-	Form of Escrow Agreement
Exhibit G	-	Form of Exchange Agent Agreement
Exhibit H	-	Form of Parachute Payment Waiver
Exhibit I	-	Form of Letter of Transmittal
Exhibit J	-	Form of Written Consent

Annexes

Annex A	-	Key Employees
Annex B	-	Specified Stockholders

			Page
ARTICLE I THE MERGER			2
	1.1	The Merger	2
	1.2	Closing Deliveries	2
	1.3	Effect on Capital Stock, Options and Warrants	5
	1.4	Payment and Exchange Procedures	7
	1.5	No Further Ownership Rights in the Company Capital Stock and Company Options	10
	1.6	Purchase Price Adjustment	10
	1.7	Earnout Consideration	11
	1.8	Tax Consequences	14
	1.9	Withholding Rights	14
	1.10	Taking of Necessary Action; Further Action	14
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY			14
	2.1	Organization, Standing, Power and Subsidiaries	14
	2.2	Capital Structure	15
	2.3	Authority; Non-contravention	16
	2.4	Financial Statements; No Undisclosed Liabilities	18
	2.5	Absence of Changes	19
	2.6	Litigation	19
	2.7	Restrictions on Business Activities	19
	2.8	Compliance with Laws; Governmental Permits	19
	2.9	Title to, Condition and Sufficiency of Assets; Real Property	21
	2.10	Intellectual Property	22
	2.11	Data Privacy and Security	25
	2.12	Taxes	26
	2.13	Employee Benefit Plans and Employee Matters	30
	2.14	Interested-Party Transactions	34
	2.15	Insurance	34

			Page
	2.16	Books and Records	34
	2.17	Material Contracts	34
	2.18	Brokers	37
	2.19	Anti-Corruption Law, Sanctions and Anti-Money Laundering Compliance	37
	2.20	Environmental Laws	37
	2.21	Significant Payors, Suppliers and Originators	37
	2.22	Stockholder Notice	38
	2.23	Compliance with Regulation D	38
	2.24	No Other Representations	38
ARTICLE III REPRESENTATIONS AND WARRANTIES OF ACQUIRER AND MERGER SUB			39
	3.1	Organization and Standing	39
	3.2	Authority; Non-contravention	39
	3.3	SEC Filings	40
	3.4	Financial Statements	40
	3.5	NASDAQ Compliance	40
	3.6	Litigation	40
	3.7	Merger Consideration	40
	3.8	No Prior Merger Sub Operations	40
	3.9	Brokers	40
	3.10	No Other Representations	40
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME			41
	4.1	Conduct of the Business; Notices	41
	4.2	Restrictions on Conduct of the Business	41
ARTICLE V ADDITIONAL AGREEMENTS			44
	5.1	Board Recommendation, Stockholder Approval and Stockholder Notice	44
	5.2	No Solicitation	45
	5.3	Confidentiality; Public Disclosure	46
	5.4	Reasonable Best Efforts	47
	5.5	Third-Party Consents; Notices	47
	5.6	Litigation	47
	5.7	Access to Information	47
	5.8	Spreadsheet	48
	5.9	Expenses	49
	5.10	Employees	49
	5.11	Termination of Benefit Plans	51

			Page
	5.12	Certain Closing Certificates and Documents	51
	5.13	Tax Matters	51
	5.14	280G Stockholder Approval	52
	5.15	Resale Registration Statement	52
	5.16	Director and Officer Indemnification	53
	5.17	Cash Election	54
ARTICLE VI CONDITIONS TO THE MERGER			54
	6.1	Conditions to Obligations of Each Party to Effect the Merger	54
	6.2	Additional Conditions to Obligations of the Company	54
	6.3	Additional Conditions to the Obligations of Acquirer	55
ARTICLE VII TERMINATION			56
	7.1	Termination	56
	7.2	Effect of Termination	57
ARTICLE VIII INDEMNIFICATION			57
	8.1	Indemnification by Company Stockholders	57
	8.2	Indemnification by Acquirer	58
	8.3	Third-Party Claims	59
	8.4	Indemnification Mechanics	60
	8.5	Survival of Representations and Warranties	61
	8.6	Threshold and Limitations	61
	8.7	No Right of Contribution	62
	8.8	Manner of Payment; Release of Escrow	62
	8.9	Right to Satisfy Indemnification Claims by Reducing Earnout Payments	63
	8.10	Tax Treatment of Payments	64
ARTICLE IX GENERAL PROVISIONS			64
	9.1	Stockholders’ Agent	64
	9.2	Notices	66
	9.3	Interpretation	67
	9.4	Amendment	67
	9.5	Extension; Waiver	68
	9.6	Counterparts	68
	9.7	Entire Agreement; Parties in Interest	68
	9.8	Assignment	68
	9.9	Severability	68
	9.10	Remedies Cumulative; Specific Performance	69
	9.11	Governing Law	69
	9.12	Rules of Construction	69
	9.13	WAIVER OF JURY TRIAL	69