CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY [***], HAS BEEN OMITTED BECAUSE EXAGEN INC. HAS DETERMINED THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD LIKELY CAUSE COMPETITIVE HARM TO EXAGEN INC. IF PUBLICLY DISCLOSED.
AMENDMENT NO. SIX TO ASSET PURCHASE AGREEMENT
This Amendment No. Six is made as of this 16th day of February, 2017, by and among Royalty Pharma Collection Trust, a Delaware statutory trust, as successor to both Cypress Bioscience, Inc. (Seller) and Proprius, Inc. (Subsidiary), and Exagen Diagnostics, Inc., a Delaware corporation (Purchaser and, collectively with Seller and Subsidiary, the Parties), the parties to that certain Asset Purchase Agreement, dated as of October 8, 2010, by and among the Parties, as amended by Amendment No. One thereto dated March 10, 2011, Amendment No. Two thereto dated August 21, 2012, Amendment No. Three thereto dated February 6, 2013, Amendment No. Four thereto dated October 8, 2013 and Amendment No. Five thereto dated January 26, 2016 (the Agreement). Capitalized terms used but not defined herein shall have the respective meanings given to such terms in the Agreement.
WHEREAS, pursuant to the terms of the Agreement, at the Closing, Purchaser purchased the Diagnostic Business from Seller and Subsidiary;
WHEREAS, in order to better align the payment obligations with the potential economic opportunities of the CB-CAPS Product, the parties wish to amend certain provisions of the Agreement to restructure the payments required to be made to Seller;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Deletion of Section 1.3(d)(iii). Section 1.3(d)(iii) of the Agreement is hereby amended by deleting $1,000,000 and inserting in its place:
$100,000 (the CB-CAPS Monitoring Assay Royalty Prepayment). In addition, from the date of the First Commercial Sale of the first CB-CAPS Monitoring Assay in any country through December 31, 2023, Purchaser shall pay to Seller royalties of two and one-half percent (2.5%) of the Net Sales of all CB-CAPS Monitoring Assays anywhere in the world (the CB- CAPS Monitoring Assay Royalty). The Royalty Prepayment shall be fully creditable against the CB-CAPS Monitoring Assay Royalty. The obligation of Purchaser to pay the CB-CAPS Monitoring Assay Royalty shall expire and shall be of no further effect upon the earlier of (A) the date on which cumulative payments of the CB-CAPS Monitoring Assay Royalty are equal to at least $1,200,000 or (B) January 1, 2024;