Amended and Restated Supply Agreement



  
 Exhibit 10.26

 [*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions. 
 AMENDED AND RESTATED 

SUPPLY AGREEMENT 
 THIS AMENDED AND RESTATED SUPPLY AGREEMENT, together with exhibits attached hereto
(“Agreement”) is entered into as of April 11, 2010 (the “Restatement Date”) by and between DIADEXUS, INC., organized under the laws of Delaware and having its principal
place of business at 343 Oyster Point Boulevard, South San Francisco, California 94080 (“diaDexus”), and BIOCHECK, INC., organized under the laws of California and having its principal
place of business at 323 Vintage Park Drive, Foster City, CA 94404 (“BioCheck”). diaDexus and BioCheck may each be referred to herein individually as a “Party” or, collectively, as “Parties.” 

RECITALS 
 WHEREAS, diaDexus and BioCheck are parties to that certain Supply Agreement dated [*] ([*] the “Original Agreement”); and 

WHEREAS, diaDexus has technology and intellectual property related to certain
analyte specific reagents and diagnostic test kits; and 
 WHEREAS,
BioCheck has expertise in the manufacture of diagnostic assays, including without limitation [*] in vitro diagnostic test kits for diaDexus; and 
 WHEREAS, diaDexus and BioCheck wish to enter into an agreement under which BioCheck will manufacture and supply diaDexus, or its designees, with certain diagnostic
test kits, calibrators and controls as set forth in more detail herein. 
 NOW,
THEREFORE, in consideration of the promises and undertakings set forth herein, the Parties agree as follows: 
 ARTICLE 1 
 DEFINITIONS 

Capitalized terms not otherwise defined herein will have the meaning set forth below: 

1.1    “Certificate of Nonconformance” shall mean a certificate of analysis signed
and dated by a diaDexus employee qualified and duly authorized to certify that the results of assays conducted on an indicated shipment of Products hereunder do not conform to the Specifications therefor and indicating the reason(s) for
non-conformance. The Certificate of Nonconformance shall include without limitation a description of the pertinent assay(s) conducted, the date on which it was (they were) conducted, and the results of the assay(s). 

1.2    “Confidential Information” shall mean any proprietary information, technical
data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other business information disclosed by the disclosing party directly or indirectly in writing, orally, or by drawings. 

  

					
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1.3    “Effective Date” shall mean April 16, 2003. 

1.4    “Lot” means a particular manufacturing run used to make Products. 

1.5    “Products” shall mean the items set forth on Exhibit A, as may be amended
from time to time in writing by the parties, to be supplied by BioCheck under this Agreement. 

1.6    “Specification” means the written specifications for the Products to be
manufactured and supplied under this Agreement, as set forth in Exhibit B, as such specifications are modified solely by mutual written agreement of the Parties in accordance with this Agreement. 

1.7    “Term” shall have the meaning set forth in Section 6.1. 

1.8    “Transfer Price” shall mean with respect to each Product, including
manufacture, kitting, storage and shipment of Product, the price set forth in Exhibit C, as subsequently modified solely in accordance with this Agreement. 
 ARTICLE 2 
 SUPPLY 

2.1    Terms and Conditions.  All supply of Products by BioCheck to diaDexus or its
designees shall be subject to the terms and conditions of this Agreement. ANY TERMS OR CONDITIONS OF ANY PURCHASE ORDER OR INVENTORY RELEASE ORDER OR ACKNOWLEDGMENT GIVEN OR RECEIVED WHICH ARE ADDITIONAL TO OR INCONSISTENT WITH THIS AGREEMENT SHALL
HAVE NO EFFECT AND SUCH TERMS AND CONDITIONS ARE HEREBY EXCLUDED AND REJECTED. 

2.2    Supply. 

(a)    diaDexus Manufacturing Materials.  diaDexus shall supply BioCheck
with a quantity of manufacturing materials set forth in Exhibit D (the “diaDexus Manufacturing Materials”) that diaDexus, in its sole good faith estimation, believes will be sufficient to meet BioCheck’s needs under this Agreement.
BioCheck shall request supplies of diaDexus Manufacturing Materials in writing from diaDexus with enough lead time to fulfill diaDexus’ orders for Products. If diaDexus fails to receive a notice from BioCheck of deficiencies or defects in such
diaDexus Manufacturing Materials within thirty (30) days after BioCheck’s receipt of diaDexus Manufacturing Materials, then such diaDexus Manufacturing Materials shall be conclusively deemed acceptable for use by BioCheck in the
manufacture of Products under this Agreement, and BioCheck shall have no recourse or other remedy against diaDexus arising from any failure, deficiency, or defect, of any kind or nature, relating to such diaDexus Manufacturing Materials. Any such
notice of defects of deficiency shall include, without limitation, a detailed description of such deficiencies or defects and the identity of the specific diaDexus Manufacturing Materials with such deficiencies or defects. BioCheck shall use any and
all such diaDexus Manufacturing Materials solely in the supply by BioCheck of Products under this Agreement, and shall keep written records of the amounts used for each Lot. diaDexus shall have the right to audit BioCheck’s use of diaDexus
Manufacturing Materials supplied under this Agreement. 

  

					
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(b)    BioCheck Manufacturing Materials.  BioCheck shall supply all materials
and components required to meet BioCheck’s obligations under this Agreement that are not diaDexus Manufacturing Materials (the “BioCheck Manufacturing Materials”). BioCheck shall stock supplies of BioCheck Manufacturing Materials in
sufficient quantities to fulfill diaDexus’ orders for Products. Upon receipt by BioCheck of BioCheck Manufacturing Materials, BioCheck shall perform sufficient incoming quality control (“iQC”) procedures on such BioCheck Manufacturing
Materials to evaluate their suitability for use by BioCheck under this Agreement. BioCheck shall use protocols for iQC standard operating procedures provided by diaDexus. If there are any deficiencies or defects in such BioCheck Manufacturing
Materials, BioCheck shall notify diaDexus in writing with an iQC notice including, without limitation, a detailed description of such deficiencies or defects and the identity of the specific BioCheck Manufacturing Materials with such deficiencies or
defects. BioCheck shall at its own expense replace such BioCheck Manufacturing Materials within three (3) business days after discovery of such deficiencies or defects. BioCheck shall have no recourse or other remedy against diaDexus arising
from any failure, deficiency, or defect, of any kind or nature, relating to BioCheck Manufacturing Materials. diaDexus shall have the right to audit BioCheck’s use of BioCheck Manufacturing Materials under this Agreement. 

(c)    Products.  Subject to the terms and conditions of this Agreement,
BioCheck shall supply Products to diaDexus or its designees. All such Products shall comply with all applicable Specifications. 
 2.3    Forecasts.  diaDexus shall provide BioCheck with a written [*] forecast updated [*] (“Forecast”) of the quantities of each
Product estimated by diaDexus to be ordered from BioCheck under this Agreement. 

2.4    Orders. 

(a)    Purchase Orders.  During the Term diaDexus shall, from time to time,
place its firm purchase orders with BioCheck for the manufacture and production of Products (a “Purchase Order”). Such Purchase Order shall be placed with sufficient lead time [*] for BioCheck to complete an order by the due date
and shall set forth the number of Products to be manufactured/kitted and placed in storage in anticipation of shipment. BioCheck shall accept such Purchase Order from diaDexus for each Product, subject to the remaining terms and conditions of this
Agreement. BioCheck shall notify diaDexus within three (3) business days from receipt of a Purchase Order of its ability or inability to fill any amount(s) or anticipated shipment or delivery date(s) of such Purchase Order, provided that such
notice will not waive any of the supply obligations of BioCheck hereunder. 

(b)    Inventory Release Orders.  During the Term diaDexus shall, from time
to time, place its firm inventory order with BioCheck, setting forth number of Products, trade units, delivery dates and shipping instructions with respect to each shipment of Product (an “Inventory Release Order”). BioCheck shall accept
such Inventory Release Order from diaDexus, subject to the remaining terms and conditions of this Agreement. All of diaDexus’ Inventory Release Orders shall provide for shipment in compliance with Section 2.6. BioCheck shall notify
diaDexus within one (1) business day from receipt of a Inventory Release Order of its ability or inability to fill any amount(s) and delivery date(s) of such Inventory Release Order, provided that such notice will not waive any of the supply
obligations of BioCheck hereunder. 
 [*] Certain information in this document has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 

  

					
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(c)    Specifications.  The Parties may amend the Specifications for any
particular Product hereunder from time to time by mutual written agreement. 

(d)    Miscellaneous Services.  From time-to-time, at the written request of
diaDexus, BioCheck may perform miscellaneous services as described in Exhibit C (“Miscellaneous Services”) to assist diaDexus with other administrative activities related to the Products. These services will be performed by BioCheck
on a time and materials basis at the rates specified in Exhibit C. 
 2.5    Transfer
Prices.  diaDexus shall pay to BioCheck the Transfer Price for each Product supplied by BioCheck under this Agreement, as set forth in Article 3. 
 2.6    Delivery.  All diaDexus Manufacturing Materials and Product delivered pursuant to the terms of this Agreement shall be suitably packed for shipment in
accordance with the applicable Specifications, marked for shipment to the destination point indicated in the Inventory Release Order, and [*]. Such packing, and the manner of shipment, shall be sufficient to prevent damage, contamination, or
degradation during shipment and during unpacking at the destination. All freight, insurance and other shipping expenses from the point of shipment shall be borne by [*]. The carrier shall be selected by diaDexus. BioCheck shall use all
reasonable commercial efforts to ship quantities of Product for delivery on the dates specified in the applicable Inventory Release Order submitted in accordance with this Agreement. 

2.7    Invoicing.  BioCheck shall submit monthly invoices to diaDexus, in accordance
with applicable Transfer Prices and fees, for (i) completed Purchase Orders (ii) completed Inventory Release Orders and (iii) Miscellaneous Services performed during such month. All invoices shall be sent to diaDexus’ address for
notices hereunder or such other address as designated by diaDexus in writing, and each such invoice shall state the aggregate and unit prices for the Products shipped, and shall separately itemize any insurance, taxes or other costs incident to the
transfer or shipment initially paid by BioCheck but to be borne by diaDexus hereunder. 

2.8    Product Inspection. 

(a)    Specifications.    diaDexus shall, prior to any shipment of
any Product by BioCheck, analyze each Product for conformity to the applicable Specifications. Upon a determination by diaDexus that such Product complies with such Specifications (the “Compliance Determination”), then [*]. BioCheck
shall have no right to ship any Products unless and until diaDexus determines that the Lot from which such Product was made is compliance with the applicable Specifications. 

(b)    Storage.  BioCheck shall store all Lots and Products under proper
conditions to maximize the life span and prevent spoilage, including, without limitation, any storage criteria set forth in the Specifications, until such time as such Lots or Products expire or are shipped, whichever occurs earlier. 

(c)    Replacement Product.  If either BioCheck or diaDexus determine,
pursuant to Section 2.8(a), that a Lot or Product does not comply with the applicable Specifications, then BioCheck shall replace such Lot or Product at no cost or expense to diaDexus; provided, however, that if a Product that has been properly
stored by BioCheck expires before shipment, diaDexus shall pay the cost of replacing it if it desires to do so. 
 [*]
Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. 

  

					
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(d)    Labeling.    BioCheck shall clearly label, in accordance
with the Specifications, each Product for supply hereunder with a unique Lot number, part number, description of contents and other identifying information, as applicable. 

(e)    Good Manufacturing Practices.    BioCheck shall manufacture
Products for supply hereunder in accordance with applicable current Good Manufacturing Practices, as defined by the United States Food and Drug Administration. 

(f)    Inspection of BioCheck Facilities.  diaDexus shall have the right, at
reasonable times during normal business hours and upon request made upon reasonable prior notice to BioCheck, not more than three (3) times per calendar year, inspect BioCheck’s specific facilities used for manufacturing the Products for
diaDexus, and BioCheck’s batch records, work-in-progress, raw materials, and production records for the Products supplied to diaDexus under this Agreement. BioCheck shall cooperate in good faith with all requests for inspection or information
from the United States Food and Drug Administration. 
 (g)    Technical
Contacts.  Within thirty (30) days of the Effective Date, each Party shall notify the other Party in writing of the names, telephone number, fax numbers, and e-mail addresses of at least one person to serve as the Party’s
technical contact under this Agreement and at least one person to serve as the Party’s business contact under this Agreement. A Party may change its business or technical contacts at any time with written notice to the other Party. 

2.9    Inspection and Rejection. 

(a)    Warranties.  Subject to the terms and conditions of this Agreement,
BioCheck warrants that the Products supplied by BioCheck hereunder will conform to the applicable Specifications at the time of delivery of the Products by BioCheck to the carrier. Subject to the terms and conditions of this Agreement, BioCheck
further represents and warrants that title to all Product supplied by BioCheck hereunder shall pass to diaDexus or its designee free and clear of all security interests, liens and other encumbrances. 

(b)    Non-Conforming Shipments.  If within thirty (30) days from
receipt of a shipment of Product, diaDexus or its customer finds that the Product does not comply with the applicable Specifications, diaDexus or its customer shall provide BioCheck with a Certificate of Nonconformance for said shipment, such
Certificate of Nonconformance to include a written statement specifying the nature and basis for the claim. diaDexus or its customer shall also return such non-conforming Product in accordance with BioCheck’s reasonable instructions, at
BioCheck’s expense; provided that diaDexus or its customer may retain a reasonable sample thereof solely for further testing, including for example, testing pursuant to Section 2.9(d). BioCheck shall cooperate to solve such a claim in good
faith as quickly as possible. 
 (c)    Third Party
Verification.  If, within a period of thirty (30) days after BioCheck’s receipt of a Certificate of Nonconformance, BioCheck is unable to verify that the applicable Product failed to conform to the Specifications at the time
of original delivery by BioCheck to the carrier, then the matter shall be submitted to and be finally decided by a nationally recognized independent testing laboratory if requested by either Party. This laboratory shall be selected by BioCheck and
approved in writing by diaDexus, such approval not to be unreasonably withheld and not to be delayed more than ten (10) days, if not otherwise agreed in writing by both parties within five (5) days of either Party’s request.

 (d)    Third Party Testing.  diaDexus or its designee shall send
a sample of the non-conforming shipment and a copy of the Certificate of Nonconformance to said testing laboratory within ten (10) days of 

  

					
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either Party’s written request. Said testing laboratory shall be requested by the Parties to complete its testing and to render its written decision, supported by its description of
procedures and basis for its findings within thirty (30) days after being engaged to perform said testing. Each Party, at its own expense, shall reasonably assist and cooperate with such laboratory in performing such testing by making available
such documentation, facilities, reagents and other materials as the laboratory may request of the Party. The Parties agree that the written decision of said testing laboratory shall be accepted as final and binding. In case the laboratory test
proves that the relevant Product did not comply with the Specifications at the time of delivery by BioCheck to the carrier, then all cost and expense of transportation, shipping, insurance, and the like related to the testing shall be paid by
BioCheck. 
 (e)    Credit or Refund.  In the event that Products
supplied by BioCheck under the terms of this Agreement is determined to be non-conforming Product, BioCheck shall reimburse diaDexus for the full purchase paid to BioCheck, if any, for such non-conforming Product. 

2.10    Process Guidelines.  BioCheck shall comply with guidelines for various
processes as set forth in Exhibit E. 
 ARTICLE 3 
 PAYMENT PROVISIONS 

3.1    Payment.  diaDexus shall make full payment to BioCheck for all Products and
Miscellaneous Services within thirty (30) days after date of invoice subject to the Compliance Determination for such Product by diaDexus pursuant to Section 2.8(a). 

3.2    Mode of Payment.  All payments shall be made by check or direct wire transfer
of United States Dollars in immediately available funds in the requisite amount to such bank account as BioCheck may from time to time designate by written notice to diaDexus. 

3.3    Late Payment.  Any payments or portions thereof due hereunder which are not
paid when due shall bear interest equal to the lesser of the prime rate as reported by the Chase Manhattan Bank, New York, New York, on the date such payment is due, plus an additional two percent (2%), or the maximum rate permitted by law,
calculated on the number of days after BioCheck provides diaDexus with written notice that the payment is past due. This Section 3.3 shall in no way limit any other remedies available to either Party. 

ARTICLE 4 

CONFIDENTIALITY 
 4.1    Confidentiality Obligations.  Each Party agrees that, for the term of this Agreement and for five (5) years thereafter, such Party will keep, and will
ensure that its officers, directors, employees and agents keep, completely confidential and will not publish or otherwise disclose and will not use for any purpose except as permitted hereunder any Confidential Information furnished to it by the
other Party pursuant to this Agreement (including, without limitation, know-how of the disclosing Party). The foregoing obligations will not apply to any information to the extent that it can be established by such receiving Party that such
information: 
 (a)    was already known to the receiving Party as evidenced by its
written records, other than under an obligation of confidentiality, at the time of disclosure; 

  

					
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(b)    was generally available to the public or was otherwise part of the public domain at the
time of its disclosure to the receiving Party; 
 (c)    became generally available
to the public or otherwise becomes part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement; 

(d)    was subsequently lawfully disclosed to the receiving Party by a Third Party other than
in contravention of a confidentiality obligation of such Third Party to the disclosing Party; or 

(e)    was developed or discovered by employees of the receiving Party or its affiliates who
had no access to the Confidential Information of the disclosing Party. 

4.2    Permitted Disclosures.  Each Party may disclose the other’s Confidential
Information to the extent such disclosure is reasonably necessary in filing or prosecuting patent applications, prosecuting or defending litigation, advising investors and the investment community of the results of the activities hereunder (subject
to the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed), complying with applicable governmental regulations, granting a permitted sublicense hereunder or conducting clinical trials or otherwise in
performing its obligations or exercising its rights hereunder. If a Party is required to make any such disclosure of the other Party’s Confidential Information, it will give reasonable advance notice to that other Party of such disclosure
requirement, will cooperate with the other Party in its efforts to secure confidential treatment of such Confidential Information prior to its disclosure, and, save to the extent inappropriate in the case of patent applications, will use all
reasonable efforts to secure confidential treatment of such information prior to its disclosure (whether through protective orders or confidentiality agreements or otherwise. 
 ARTICLE 5 
 REPRESENTATIONS AND
WARRANTIES 
 5.1    Representations by
BioCheck.  BioCheck represents and warrants that as of the Effective Date: (i) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter
into this Agreement; (ii) it has taken all corporate actions necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement; and (iii) the performance of its obligations
under this Agreement do not conflict with, or constitute a default under its charter documents, any contractual obligation of BioCheck or any court or administrative order. 

5.2    Representations by diaDexus.  diaDexus represents and warrants that, as of
the Effective Date: (i) it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full corporate power and authority to enter into this Agreement; (ii) it has taken all corporate actions
necessary to authorize the execution and delivery of this Agreement and the performance of its obligations under this Agreement; and (iii) the performance of its obligations under this Agreement do not conflict with, or constitute a default
under its charter documents, any contractual obligation of diaDexus or any court order. 

5.3    Disclaimer of Warranties.  EXCEPT AS SPECIFICALLY SET FORTH IN THIS ARTICLE 5
OR SECTION 2.9(a), NO PARTY MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, AND ANY OTHER STATUTORY WARRANTY. 

  

					
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5.4    Insurance.  BioCheck shall carry sufficient insurance (no less than
$1,000,000) for Products and diaDexus Manufacturing Materials in BioCheck inventory to cover a complete loss of value to all diaDexus inventory at BioCheck. 
 ARTICLE 6 
 TERM AND
TERMINATION 
 6.1    Term.  This Agreement will
commence upon the Effective Date and, unless earlier terminated, shall [*] (the “Term”). 
 6.2    Termination for Convenience.  diaDexus shall have the right, upon thirty (30) days written notice to BioCheck, to terminate this Agreement for any reason
or no reason. 
 6.3    Termination for Cause.  Either party shall have the
right to terminate this Agreement if the other party has materially breached the Agreement. Such terminating party shall notify the breaching party in writing of such breach and, if such breach remains uncured thirty (30) days after the date
such notice was sent, the breaching party shall have a right to terminate the Agreement immediately by sending a written termination notice to the breaching party. 

6.4    Consequences of Termination or Expiration. 

(a)    Return of Materials.  Upon termination or expiration of this
Agreement each Party will promptly return all records and materials in its possession or control containing or comprising the other Party’s know-how or other Confidential Information to which the former Party does not expressly retain rights
hereunder or under the License Agreement. 
 (b)    Accrued
Liability.  Termination or expiration of this Agreement for any reason shall not release either Party hereto from any liability which at the time of such termination or expiration has already accrued to the other Party prior to such
time. Such termination or expiration will not relieve a Party from accrued payment obligations or from obligations which are expressly indicated in this Agreement to survive termination or expiration of this Agreement. 

(c)    Survival.  The following Articles and Sections of this Agreement
shall survive its termination or expiration: Articles 1, 4 (as set forth therein), 5, and 7 and Section 6.4. 
 ARTICLE 7

 GENERAL PROVISIONS 

7.1    Relationship of the Parties.  The Parties are independent contractors.
Nothing in this Agreement is intended or will be deemed to constitute a partnership, agency or employer-employee relationship between the Parties. Neither Party will incur any debts or make any commitments for the other Party. 

[*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions. 

  

					
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7.2    Assignments.  Except as expressly provided herein, neither this Agreement nor
any interest hereunder will be assignable, nor any other obligation delegable, by a Party without the prior written consent of the other Party; provided, however, that a Party shall have the right to assign and otherwise transfer this
Agreement as a whole without consent to any successor that acquires all or substantially all of the business or assets of such Party by way of merger, consolidation, other business reorganization, or the sale of stock or assets, provided that the
assigning Party notifies the other Party in writing of such assignment. This Agreement shall be binding upon successors and permitted assigns of the Parties. Any assignment not in accordance with this Section 7.2 will be null and void.

 7.3    Force Majeure.  Except with respect to payment of money, no Party
shall be liable to the other for failure or delay in the performance of any of its obligations under this Agreement for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, terrorist acts, strike,
flood, or governmental acts or restriction, or other cause that is beyond the reasonable control of the respective Party. The excused Party shall be excused for a time period reasonably sufficient to remedy the effects of such an event. The Party
affected by such force majeure will provide the other Party with full particulars thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities), and will use
commercially reasonable efforts to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable. If the performance of any such obligation under this Agreement is delayed owing to such a force majeure
for any continuous period of more than one hundred eighty (180) days, the Parties hereto will consult with respect to an equitable solution, including the possibility of the mutual termination of this Agreement. 

7.4    Entire Agreement of the Parties; Amendments.  This Agreement constitutes and
contains the entire understanding and agreement of the Parties respecting the subject matter hereof and cancels and supersedes any and all prior and contemporaneous negotiations, correspondence, understandings and agreements between the Parties,
whether oral or written, regarding such subject matter. No waiver, modification or amendment of any provision of this Agreement will be valid or effective unless made in writing and signed by the Parties. 

7.5    Captions.  The captions to this Agreement are for convenience only, and are
to be of no force or effect in construing or interpreting any of the provisions of this Agreement. 

7.6    Governing Law; Dispute Resolution.  This Agreement will be governed by and
interpreted in accordance with the laws of the State of California, applicable to contracts entered into and to be performed wholly within the State of California, excluding conflict of laws principles. Any and all disputes related to this Agreement
shall be heard in the Superior Court of California, County of San Mateo, or in the United States District Court for the Northern District of California. 
 7.7    Notices and Deliveries.  Any notice, request, delivery, approval or consent required or permitted to be given under this Agreement will be in writing and will
be deemed to have been sufficiently given if delivered in person, transmitted by telecopier (receipt verified) or by express courier service (signature required) or five (5) days after it was sent by registered letter, return receipt requested
(or its equivalent), provided that no postal strike or other disruption is then in effect or comes into effect within two (2) days after such mailing, to the Party to which it is directed at its address or facsimile number shown below or such
other address or facsimile number as such Party will have last given by notice to the other Party. 

  

					
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 If to
BioCheck, addressed to: 
 BioCheck, Inc. 

323 Vintage Park Drive 
 Foster City, CA 94404 
 Attn.: Chief Executive Officer 

Fax:      (650) 259-8427 

If to diaDexus, addressed to: 
 diaDexus, Inc. 
 343 Oyster Point Boulevard 

South San Francisco, California 94080 

Attn.: Chief Executive Officer 
 Fax:      (650) 246-6499 

7.8    No Consequential Damages.    EXCEPT WITH RESPECT TO UNAUTHORIZED
EXPLOITATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF CONFIDENTIALITY OR THE INDEMNITY OBLIGATIONS UNDER SECTION 7.9, IN NO EVENT WILL ANY PARTY OR ANY OF ITS RESPECTIVE AFFILIATES BE LIABLE TO THE ANY OTHER PARTY OR ANY OF
ITS AFFILIATES FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE OR CLAIMS OF
CUSTOMERS OF ANY OF THEM OR OTHER THIRD PARTIES FOR SUCH DAMAGES. 

7.9    Indemnity.  BioCheck shall indemnify, defend and hold diaDexus and its
affiliates, agents, employees, officers and directors (the “diaDexus Indemnitees”) harmless from and against any and all liability, damage, loss, cost or expense (including reasonable attorneys’ fees) arising out of third party claims
or suits related to: (i) BioCheck’s performance of, or failure to perform, its obligations under this Agreement; (ii) breach by BioCheck of any of its representations and warranties under this Agreement; and (iii) product
liability claims arising from Product produced pursuant to this Agreement; provided, however, that BioCheck’s obligations pursuant to this Section 7.9 will not apply to the extent such claims or suits result from the gross
negligence or willful misconduct of any of the diaDexus Indemnitees. 

7.10    Waiver.  A waiver by any Party of any of the terms and conditions of this
Agreement in any instance will not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach hereof. All rights, remedies, undertakings, obligations and agreements contained in this Agreement will be
cumulative and none of them will be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. 
 7.11    Severability.  When possible, each provision of this Agreement will be interpreted in such manner as to be effective, valid, and enforceable under applicable
law. The Parties will make a good faith effort to replace the applicable provision with a valid one, which the Parties agree has effect that is consistent with the original provision. 

7.12    Compliance with Laws.  Notwithstanding anything to the contrary contained
herein, all rights and obligations of diaDexus and BioCheck are subject to prior compliance with, and each Party shall comply 

  

					
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with, all United States and foreign export and import laws, regulations, and orders, and such other United States and foreign laws, regulations, and orders as may be applicable, including
obtaining all necessary approvals required by the applicable agencies of the governments of the United States and foreign jurisdictions. 
 7.13    Counterparts.  This Agreement may be executed simultaneously in any number of counterparts, any one of which need not contain the signature of more than one
Party but all such counterparts taken together will constitute one and the same agreement. 

IN WITNESS WHEREOF, the Parties have caused this
Agreement to be executed by their respective duly authorized officers as of the Effective Date, each copy of which will for all purposes be deemed to be an original. 
  

											
	DIADEXUS, INC.	 		 	BIOCHECK, INC.	 	
						
	By:	 	         /s/ P. Plewman
	 		 	By:	 	         /s/ John Chen
	 	
				
	Name:  P. Plewman	 		 	Name:  John Chen	 	
			
	Title:  President & CEO	 	Title:  CEO/President	 	
				
	Date:  6/15/10	 		 	Date:  06-11-2010	 	


  

					
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EXHIBIT A 
 PRODUCTS 
  

			
	  
 PRODUCT
	 	COMPONENTS
	 [*]
	 	
        [*]


 [*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions. 

  

					
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EXHIBIT B 
 [*] 
 [*] Two pages have been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portion. 

  

					
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EXHIBIT C 
 TRANSFER PRICES 
 Product manufacture and kitting 

Table 1 
 [*] 

Table 2. 
 [*] 

Product Shipping 
 Table 3. Cost for
shipment of Products in Table 1 above. 
 [*] 
 Miscellaneous Services 
 From time-to-time, BioCheck may be requested to perform
miscellaneous services that are within the scope of this Agreement which may include: 
 [*] 

Miscellaneous Services will be billed on a time & materials basis at [*]. 

[*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission.
Confidential treatment has been requested with respect to the omitted portions. 

  

					
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EXHIBIT D 
 DIADEXUS MANUFACTURING MATERIALS 
 [*] 

[*] Two pages have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portion. 

  

					
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EXHIBIT E 
 PROCESS GUIDELINES 
 Inventory Management 

Inventory will be Work in Process (WIP) labeled bottles that have been quality control released and ready to be kitted for shipment to customers.

  

	1.	BioCheck shall implement the process of: 

  

	 	a.	Receiving the Certificate of Analysis and Inventory Release Order from diaDexus. 


 

	 	b.	Managing diaDexus inventory of diaDexus Manufacturing Materials and diaDexus Manufacturing Materials (e.g. labels, package inserts, boxes, etc.)


  

	 	c.	Kitting the entire Lot of Product [*] of receipt of Release Order from diaDexus. 


 

	 	d.	Preparation for shipment including generating copies of relevant manufacturing protocols provided by diaDexus. 


 

	2.	BioCheck shall provide an inventory update to diaDexus [*] to diaDexus’ Materials group of what has been shipped and what remains in inventory by Lot and
expiration date. 

  

	3.	Inventory shall be [*] with appropriate temperature control and backup (generator or other method to insure [*]). 


Shipping 
  

	4.	Upon receipt of an Inventory Release Order for diaDexus via fax or other agreed means, BioCheck shall drop ship Products to customers the same day for such orders
received [*]. 

  

	5.	Inventory Release Orders received [*]. 

  

	6.	Products shall be drop shipped [*], in all cases per diaDexus instructions within the Inventory Release Order. 


 

	7.	diaDexus shall supply appropriate freight carrier information including shipping number to BioCheck. 


 

	8.	BioCheck shall over-pack the Products with the appropriate quantity of frozen ice packs within an insulated shipping carton as outlined in the diaDexus shipping SOP.


  

	9.	Over-packing shall be sufficient enough to remain intact and functional during the transport to customers. 


 

	10.	BioCheck shall follow this shipping sequence: 

  

	 	a.	Type packing list. 

  

	 	b.	Schedule a shipment pick-up by carrier. 

 [*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted
portions. 

  

					
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	 	c.	Generate shipping documents (For international shipments: BioCheck shall prepare appropriate FedEx labels). 


 

	 	d.	Upon shipment, provide diaDexus via email, confirmation and tracking of shipment. 


 

	11.	BioCheck shall supply all BioCheck materials required for shipping. 

 Miscellaneous 
  

	12.	BioCheck shall comply with Good Manufacturing Practice provisions for all activities under this agreement. 


 

	13.	All manufacturing procedures and SOPs for receiving diaDexus Manufacturing materials, inventory management, kitting and shipping Products shall be provided by diaDexus.


  

	14.	All sales, marketing and technical support for Products shall solely be managed by diaDexus. 


  

					
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