CALDERWOOD & HARKNESS LLP 600 Lexington Avenue New York, New York 10022
MEMORANDUM — PRIVILEGED & CONFIDENTIAL / ATTORNEY WORK PRODUCT
TO: Victoria Chambers, Responsible Partner Howard Quinn, Billing Partner
FROM: Leonard Ashford, Of Counsel, Emerging Companies & Venture Capital
DATE: November 8, 2023
RE: Staffing Plan — Skybridge Fintech Ltd. Convertible Bridge Financing
MATTER NO.: 1009-00001
CLIENT: Skybridge Fintech Ltd.
This memorandum is a confidential attorney work product prepared in connection with the representation of Skybridge Fintech Ltd. It is intended solely for internal use by the attorneys and staff of Calderwood & Harkness LLP assigned to Matter No. 1009-00001. This memorandum is protected by the attorney-client privilege and the work product doctrine. Do not distribute, copy, or disclose this memorandum outside of the firm without the express prior authorization of the Responsible Partner.
1. Introduction and Purpose
The purpose of this memorandum is to set forth the proposed team composition, role assignments, and anticipated allocation of responsibilities for Calderwood & Harkness LLP's ("C&H" or the "Firm") representation of Skybridge Fintech Ltd. ("Skybridge" or "SBF") in connection with its proposed $60,000,000 convertible promissory note bridge financing (the "Bridge Financing" or the "Transaction"). This staffing plan has been designed to ensure comprehensive legal coverage across all anticipated workstreams while operating within the budgetary constraints agreed upon with the client.
The engagement for this matter was formally opened on November 6, 2023, and the engagement letter was executed by the client on the same date. The Firm's representation encompasses all legal services necessary to effectuate the issuance and sale of convertible promissory notes to a syndicate of institutional investors, as well as all related ancillary documentation, due diligence, regulatory filings, board and stockholder approval processes, and closing deliverables.
The principal client contact points for this engagement are as follows:
• Arjun Mehta — Chief Executive Officer & Co-Founder
• David Lindstrom — Chief Financial Officer
• Priya Ramanathan — General Counsel (designated day-to-day client contact)
• Marcus Tillman — Vice President, Corporate Development
The Transaction involves the issuance by Skybridge of convertible promissory notes (the "Notes") in the aggregate principal amount of $60,000,000, bearing interest at the rate of 6.00% per annum (600 basis points), to a syndicate of existing and new investors led by Ridgeline Ventures Fund IV, L.P. ("Ridgeline" or the "Lead Investor"). The notes will contain customary conversion mechanics, including an automatic conversion feature triggered upon the occurrence of a Qualified Financing, as more fully described in Section 2 below.
Calderwood & Harkness LLP has been engaged to represent the issuer/company side of the Transaction. The investor syndicate is separately represented by Whitfield, Pratt & Soo LLP, with Graham Whitfield serving as lead partner and Danielle Kwon serving as the working associate on the matter. Whitfield, Pratt & Soo LLP is based in Boston, Massachusetts at One Federal Street, 26th Floor, Boston, MA 02110.
The engagement is subject to a negotiated fee cap of $275,000 plus disbursements, against a retainer of $75,000 anticipated to be received on or about November 15, 2023. This staffing plan has been specifically designed to operate within this budget constraint, ensuring that the allocation of personnel and the division of labor maximize efficiency while maintaining the quality of legal services expected of the Firm. All team members should be aware of this budget ceiling in managing their time and should consult with the undersigned or the Responsible Partner before undertaking any work that may cause actual fees to approach or exceed the cap.
For a detailed breakdown of the budget allocation across workstreams and phases of the Transaction, reference should be made to the Fee Estimate & Budget Memorandum dated November 6, 2023, prepared by the undersigned and distributed to Victoria Chambers and Howard Quinn concurrent with the opening of the engagement.
2. Transaction Overview
2.1 Description of the Transaction
The Transaction contemplates the issuance and sale by Skybridge of convertible promissory notes in the aggregate principal amount of $60,000,000 to an investor syndicate consisting of four institutional investors. The Notes will be convertible into equity securities of the Company upon the occurrence of certain triggering events, as described below. The Bridge Financing is intended to provide Skybridge with interim growth capital in advance of a planned Series D equity financing round that the Company currently anticipates commencing in Q3–Q4 2024.
2.2 Key Commercial Terms Requiring Legal Attention
The following commercial terms of the Transaction have been communicated to the Firm by the client and will require careful legal drafting, analysis, and negotiation:
• Conversion discount: 20% discount to the per-share price paid by investors in a Qualified Financing
• Valuation Cap: $750,000,000 pre-money valuation cap, applicable to the conversion of the Notes
• Maturity: 24 months from the date of issuance
• Interest Rate: 6.00% per annum, simple interest, accruing from the date of issuance
• Automatic Conversion: The Notes shall automatically convert into equity securities upon the closing of a Qualified Financing, defined as a bona fide equity financing in which the Company raises at least $80,000,000 in new equity capital (exclusive of the conversion of the Notes)
• Change of Control Premium: 2.0x the outstanding principal and accrued but unpaid interest upon a Change of Control (as to be defined in the Notes)
• Most Favored Nation Provision: MFN clause entitling Note holders to the benefit of any more favorable terms granted by the Company in connection with subsequent convertible debt issuances prior to conversion or repayment of the Notes
• Subordination: The Notes will be subordinated to the existing venture debt facility with Kelvantis Lending Corp., as evidenced by that certain Loan and Security Agreement, dated August 15, 2022, by and between Skybridge Fintech Ltd. and Kelvantis Lending Corp. (the "Kelvantis Facility"), in the outstanding principal amount of $15,000,000, maturing August 15, 2025. A Subordination Agreement will be required among the Company, the Purchasers, and Kelvantis as the senior lender.
2.3 Investor Syndicate Composition
The investor syndicate consists of the following institutional investors:
Ridgeline Ventures Fund IV, L.P. will serve as lead investor and is expected to negotiate the principal terms of the Transaction on behalf of the syndicate. Northstar Innovation Fund II, L.P. is a new investor to the Skybridge capitalization table, which will require additional attention with respect to joinder to existing investor agreements (the Amended and Restated Investors' Rights Agreement and the Right of First Refusal and Co-Sale Agreement) and the potential need for a separate or bifurcated closing if its investment committee approval is delayed.
2.4 Anticipated Workstreams
The Firm anticipates the following principal workstreams in connection with the Transaction:
(i) Preliminary Analysis and Strategy Memoranda. Preparation of internal and client-facing memoranda addressing deal structure, Delaware corporate law considerations, federal securities law analysis (Regulation D / Section 4(a)(2) of the Securities Act of 1933), review of the Company's existing organizational documents (Restated Certificate of Incorporation, Bylaws, Investors' Rights Agreement, Right of First Refusal and Co-Sale Agreement), and analysis of the interaction between the MFN provision and existing anti-dilution protections.
(ii) Term Sheet Review and Negotiation. Review and negotiation of the term sheet for the Bridge Financing, including advising the client on the legal implications of each economic and governance term.
(iii) Due Diligence. Comprehensive issuer-side due diligence across the following categories: corporate formation and governance, intellectual property, material contracts (including the Kelvantis Facility), regulatory and compliance matters (including FinCEN/BSA, state money transmitter licensing, and PCI-DSS considerations), pending or threatened litigation, employment and benefits matters, and insurance coverage.
(iv) Drafting and Negotiation of Definitive Transaction Documents. Preparation, revision, and negotiation of the Note Purchase Agreement, the form of Convertible Promissory Note, the Subordination Agreement (with Kelvantis Lending Corp.), Amendment No. 1 to the Amended and Restated Investors' Rights Agreement, Amendment No. 1 to the Right of First Refusal and Co-Sale Agreement, the Escrow Agreement (with Granite Trust Company, N.A.), a Joinder Agreement (for Northstar Innovation Fund II, L.P., if the final closing is bifurcated), the Schedule of Purchasers, and the Company Disclosure Schedule.
(v) Board and Stockholder Approval Processes. Preparation of board consent resolutions, stockholder written consent(s) (as required), and delivery of the Section 228 notice to non-consenting stockholders.
(vi) Closing Mechanics and Deliverables. Preparation of closing checklist, officer's certificates, secretary's certificate, funds flow memorandum, wire transfer instructions, escrow release instructions, and coordination of all closing logistics.
(vii) Securities Law Filings. Preparation and filing of Form D with the Securities and Exchange Commission (initial filing following the Initial Closing, and an amendment following the Final Closing if applicable), and identification, preparation, and submission of applicable blue sky / state notice filings (Delaware, Massachusetts, Illinois, California, and Washington).
(viii) Legal Opinion. Drafting and finalization of the legal opinion of Calderwood & Harkness LLP addressed to the Purchasers, covering customary matters including due organization, due authorization, enforceability, non-contravention, and securities law exemptions.
2.5 Estimated Timeline
The anticipated timeline for the Transaction is as follows:
• Term Sheet Execution: Targeted for early December 2023
• Circulation of Initial Drafts: Targeted for mid-December 2023
• Diligence Phase: Mid-November through late December 2023
• Negotiation of Definitive Documents: Late December 2023 through early January 2024
• Board Approval and Closing: Targeted for mid-January 2024
• Post-Closing Filings and Deliverables: Late January 2024
The Bridge Financing is being undertaken in advance of a planned Series D equity financing round that Skybridge currently anticipates initiating in Q3–Q4 2024. The Bridge Financing is intended to provide the Company with sufficient operating capital through the anticipated closing of the Series D round while avoiding the need to price an equity round in the current market environment.
3. Staffing Assignments
Set forth below are the detailed role descriptions, responsibilities, and anticipated time commitments for each member of the C&H team assigned to the engagement. The team has been assembled to balance transactional depth and subject-matter specialization while maintaining budgetary discipline consistent with the $275,000 fee cap.
3.1 Victoria Chambers — Responsible Partner
Title: Partner, White Collar & Investigations (Responsible Partner for the Engagement)
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Overall engagement oversight and client relationship management.
Responsibilities:
• Serve as the primary point of contact with Skybridge senior leadership — specifically Arjun Mehta (CEO & Co-Founder) and Priya Ramanathan (General Counsel) — on strategic matters, significant issues, and matters requiring partner-level involvement.
• Review and approve all key deliverables produced by the engagement team, including the definitive Note Purchase Agreement, the form of Convertible Promissory Note, the Subordination Agreement, and the Company Disclosure Schedule, with particular attention to representations and warranties, indemnification provisions, and risk allocation.
• Provide final sign-off on the legal opinion of Calderwood & Harkness LLP to be issued to the Purchasers at closing. As the Responsible Partner, Victoria Chambers will be the signing partner on the opinion letter, and accordingly will need to be satisfied as to all factual and legal predicates underlying the opinions delivered.
• Exercise oversight of engagement economics and ensure compliance with the $275,000 fee cap throughout the duration of the engagement. Victoria Chambers will coordinate with Howard Quinn on billing matters and will serve as the decision-maker on any requests for scope adjustments that may impact budget.
• Serve as the escalation point for any significant issues arising during the due diligence process, the negotiation of transaction documents, or client communications. Issues warranting escalation include, without limitation, material diligence findings, disputed negotiation points involving economic terms or indemnification, and any potential conflicts of interest.
• Participate in key client calls and meetings as appropriate, including the anticipated board presentation summarizing the terms of the Transaction.
Estimated Time Commitment: Moderate. Victoria Chambers's involvement will be primarily supervisory and review-oriented. She will be available as needed for client communications, escalation of material issues, and opinion review and execution. The bulk of day-to-day substantive work will be managed by Leonard Ashford as substantive corporate lead, with Victoria Chambers providing oversight at key milestones.
3.2 Howard Quinn — Billing Partner
Title: Partner, White Collar & Investigations (Billing Partner for the Engagement)
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Billing oversight and financial management of the engagement.
Responsibilities:
• Manage monthly billing against the $75,000 retainer (anticipated to be received on or about November 15, 2023), ensuring that invoices are prepared in a timely fashion and that retainer drawdowns are properly accounted for.
• Monitor all time entries and work-in-progress ("WIP") against the $275,000 fee cap (plus disbursements), and promptly flag to Victoria Chambers and Leonard Ashford any instances where actual or projected fees approach critical budget thresholds (see Section 6 below).
• Coordinate with Victoria Chambers on budget adherence, including evaluation of any requests for additional resources or scope expansion that may impact the fee cap.
• Review and approve all invoices to Skybridge prior to transmission, ensuring accuracy and compliance with the engagement letter terms and the Firm's billing policies.
• Monitor the Company's reimbursement obligations under the Note Purchase Agreement, including (a) Skybridge's obligation to reimburse the fees and expenses of investor counsel, Whitfield, Pratt & Soo LLP, up to a maximum of $125,000, and (b) the Granite Trust Company, N.A. escrow fee of $7,500. While these expenses are not counted against the C&H fee cap, Howard Quinn will track them as part of the overall engagement cost profile for client reporting purposes.
• Ensure that all time entries are recorded against Matter No. 1009-00001 and that task codes and phase codes are applied consistently across the team.
Estimated Time Commitment: Limited. Howard Quinn's involvement will consist of periodic billing review and administrative oversight. His substantive involvement in the Transaction will be minimal.
3.3 Leonard Ashford — Of Counsel, ECVC (Substantive Corporate Lead)
Title: Of Counsel, Emerging Companies & Venture Capital
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Substantive lead for all corporate, transactional, and venture capital aspects of the engagement. Leonard Ashford will serve as the day-to-day substantive lead throughout the life of the Transaction.
Responsibilities:
Leonard Ashford will bear primary responsibility for the legal substance and execution quality of the engagement. His specific responsibilities include the following:
Drafting and Negotiation of Transaction Documents
Leonard Ashford will serve as lead drafter and lead negotiator for all definitive transaction documents, including:
• Note Purchase Agreement — the principal agreement governing the sale and purchase of the Notes, containing representations and warranties of the Company and the Purchasers, conditions to closing, indemnification provisions, covenants, and miscellaneous provisions.
• Form of Convertible Promissory Note — the instrument evidencing each Purchaser's note, containing the economic terms (principal amount, interest rate, maturity date, conversion mechanics, Change of Control premium, MFN provision, and subordination provisions).
• Subordination Agreement — the agreement among Skybridge, the Purchasers, and Kelvantis Lending Corp. as the senior lender, establishing the subordination of the Notes to the Kelvantis Facility and setting forth intercreditor terms.
• Amendment No. 1 to Amended and Restated Investors' Rights Agreement — amendments necessary to extend information rights, registration rights, or other applicable rights to the Purchasers (or to certain Purchasers meeting a specified investment threshold).
• Amendment No. 1 to Right of First Refusal and Co-Sale Agreement — amendments necessary to add the Purchasers (or applicable Purchasers) as parties to the existing ROFR/Co-Sale Agreement.
• Escrow Agreement — the agreement among Skybridge, the Purchasers, and Granite Trust Company, N.A., as escrow agent, governing the deposit and release of escrowed funds (if any portion of the purchase price is held in escrow pending satisfaction of post-closing conditions or a bifurcated closing).
• Joinder Agreement — for use by Northstar Innovation Fund II, L.P. (and any other investor closing at a subsequent closing) to accede to the Note Purchase Agreement, the Investors' Rights Agreement, and the ROFR/Co-Sale Agreement.
• Schedule of Purchasers — setting forth the name, address, commitment amount, and wire transfer instructions of each Purchaser.
• Company Disclosure Schedule — the schedule of exceptions to the Company's representations and warranties in the Note Purchase Agreement, to be prepared in consultation with Priya Ramanathan and Marcus Tillman.
Opposing Counsel Interface
Leonard Ashford will serve as the primary interface with opposing counsel: Graham Whitfield (lead partner) and Danielle Kwon (associate) at Whitfield, Pratt & Soo LLP, One Federal Street, 26th Floor, Boston, MA 02110. All substantive negotiations, mark-up exchanges, and issue discussions with investor counsel will be led by or coordinated through Leonard Ashford. Nina Reyes is authorized for working-level document exchanges with Danielle Kwon, as described in Section 3.4 below.
Preliminary Analysis and Strategy Memoranda
Leonard Ashford will prepare or oversee the preparation of the following preliminary analysis and strategy memoranda for internal and/or client use:
• Deal structure memorandum — analyzing the structure of the Bridge Financing and identifying key legal considerations
• Delaware law considerations memorandum — addressing board fiduciary duties in the context of bridge financing, stockholder approval requirements, Section 228 written consent mechanics, and any charter-level restrictions
• Securities law memorandum — analyzing the applicability of Regulation D (Rule 506(b)) and Section 4(a)(2) of the Securities Act of 1933, accredited investor qualification, integration issues, and general solicitation restrictions
• Review of existing organizational documents — Restated Certificate of Incorporation, Bylaws, Amended and Restated Investors' Rights Agreement, Right of First Refusal and Co-Sale Agreement, and Voting Agreement — to identify any consent requirements, preemptive rights, anti-dilution triggers, or other provisions implicated by the Transaction
• MFN and anti-dilution interaction analysis — examining the interplay between the MFN provision in the Notes and the existing weighted-average anti-dilution protections held by existing preferred stockholders
Lender and Escrow Agent Coordination
• Coordination with Kelvantis Lending Corp. — specifically Theodore "Ted" Marsh, Relationship Manager, at 350 Park Avenue, 18th Floor, New York, NY 10022 — for the purpose of obtaining lender consent to the Transaction and, if required, a waiver of any covenant restrictions in the Loan and Security Agreement that may be triggered by the issuance of the Notes or the subordination of the Notes to the Kelvantis Facility.
• Coordination with Granite Trust Company, N.A. — specifically Angela Petrov, at 100 Summer Street, Boston, MA 02110 — for the purpose of establishing escrow arrangements and finalizing the Escrow Agreement.
Board and Stockholder Approval
Leonard Ashford will oversee the board and stockholder approval process, including:
• Drafting of board consent resolutions approving the Transaction, the issuance of the Notes, and the execution of all transaction documents
• Drafting of stockholder written consent(s), to the extent stockholder approval is required under the Restated Certificate of Incorporation or applicable law
• Preparation of the Section 228 notice to non-consenting stockholders (to be filed with the Company's minute books and distributed in accordance with Delaware General Corporation Law Section 228(e))
• Preparation of a board presentation and summary of transaction terms for the Company's Board of Directors
Legal Opinion
Leonard Ashford will prepare the initial and subsequent drafts of the legal opinion of Calderwood & Harkness LLP to be addressed to the Purchasers. The opinion is anticipated to cover customary matters, including due organization and good standing, due authorization, enforceability, non-contravention of charter documents and material agreements, and availability of the federal securities law exemption. The draft opinion will be submitted to Victoria Chambers for final review and execution as Responsible Partner.
Supervision and Coordination
• Supervision of Nina Reyes on all ECVC/corporate workstreams, including review of her work product, direction on assignments, and coordination of her interactions with the client and opposing counsel.
• Provision of regular status updates to Victoria Chambers and to the client team (with Priya Ramanathan as day-to-day client contact, and copies to David Lindstrom and Marcus Tillman as appropriate).
• Review of the corporate diligence memorandum, material contracts diligence memorandum, and due diligence summary/risk assessment prepared by Nina Reyes.
• Review of the closing checklist, officer's certificates, secretary's certificate, and all closing deliverables.
• Coordination of funds flow mechanics and closing logistics, including the preparation and distribution of the funds flow memorandum and wire transfer instructions.
Estimated Time Commitment: Heavy. This is the most time-intensive role on the engagement. Leonard Ashford will serve as the day-to-day substantive lead throughout the entire life of the Transaction, from preliminary analysis through closing and post-closing deliverables. His hours are expected to represent the largest single allocation of partner/of counsel time on the engagement.
3.4 Nina Reyes — Senior Associate, ECVC
Title: Senior Associate, Emerging Companies & Venture Capital
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Primary associate support for corporate and transactional workstreams; secondary drafter and negotiation support. Nina Reyes will work under the direct supervision of Leonard Ashford on all ECVC/corporate workstreams.
Responsibilities:
Transaction Document Drafting
• Assist Leonard Ashford in drafting, revising, and blacklining all definitive transaction documents, including the Note Purchase Agreement, form of Convertible Promissory Note, Subordination Agreement, IRA and ROFR/Co-Sale Agreement amendments, and all ancillary documents.
• Serve as initial drafter for certain ancillary documents, including the Escrow Agreement, the Joinder Agreement, the Schedule of Purchasers, and supporting schedules and exhibits.
Corporate Due Diligence
• Lead the corporate due diligence workstream, including review of entity formation documents (Certificate of Incorporation, as restated, and all certificates of amendment), certificates of good standing (Delaware and any foreign qualification jurisdictions), corporate governance documents (Bylaws, board and committee charters, board minutes and consents, stockholder minutes and consents), and capitalization records.
• Conduct a comprehensive capitalization review, coordinating with Skybridge's records and verifying the Company's fully diluted capitalization. Based on preliminary information provided by the client, the Company has approximately 48,500,000 shares outstanding on a fully diluted basis (inclusive of all outstanding options and warrants) immediately prior to the Bridge Financing. The capitalization review will encompass all prior financing rounds:
• Series A: Led by Crestpoint Seed Partners
• Series B: Led by Halcyon Growth Equity, L.P.
• Series C: Led by Ridgeline Ventures Fund III, L.P. and Beacon Hill Capital Partners, LLC (closed July 2021; post-money valuation of approximately $620,000,000)
• Prepare the corporate diligence memorandum summarizing findings, identifying any issues or discrepancies, and recommending remedial actions.
Due Diligence Coordination
• Manage the master due diligence request list and track responses from the client.
• Collect, organize, and index all data room materials, working in coordination with Priya Ramanathan and Marcus Tillman at Skybridge.
• Serve as the primary point of contact with the client on all day-to-day diligence matters and document requests.
Material Contracts and Lending Facility Review
• Review and analyze material contracts identified by the Company, with particular focus on change of control provisions, assignment restrictions, consent requirements, and termination triggers that may be implicated by the Transaction.
• Conduct a detailed review of the Kelvantis Loan and Security Agreement, dated August 15, 2022, for covenant restrictions, consent triggers, change of control provisions, negative pledge clauses, and limitations on indebtedness that may require lender consent or waiver in connection with the Bridge Financing. Nina Reyes will serve as the primary drafter of the Kelvantis Covenant Analysis Memorandum, to be reviewed by Leonard Ashford.
Tax Considerations
• Provide drafting support for the tax considerations memorandum, addressing federal income tax treatment of the convertible notes (including original issue discount analysis, imputed interest, and constructive dividend implications) and Delaware franchise tax considerations.
Securities Law Filings
• Prepare and file Form D with the Securities and Exchange Commission (initial filing to be made within 15 days after the Initial Closing; amendment to be filed after the Final Closing, if applicable).
• Prepare the blue sky / state notice filings memorandum, identifying all required state notice filings in connection with the Bridge Financing. Based on preliminary analysis of investor domiciles and the Company's principal places of business, filings are anticipated in the following jurisdictions: Delaware, Massachusetts, Illinois, California, and Washington. Nina Reyes will track all applicable deadlines for state-level filings.
Closing Mechanics
• Manage the closing checklist from initial preparation through the final closing, ensuring that all conditions precedent, deliverables, and post-closing obligations are tracked and fulfilled.
• Draft closing correspondence, including wire transfer instructions, escrow release instructions, and the funds flow memorandum.
• Prepare officer's certificates, secretary's certificate, and other closing deliverables as assigned by Leonard Ashford.
Opposing Counsel Communication
• Conduct working-level communications with Danielle Kwon at Whitfield, Pratt & Soo LLP on day-to-day document exchange matters, scheduling, and resolution of working-level issues (e.g., MFN scope clarifications, information rights provisions, mechanics of investor accreditation questionnaires). All substantive negotiations and issues involving material legal or economic terms will be coordinated through Leonard Ashford.
Stockholder Consent and Post-Closing
• Prepare the Section 228 notice to non-consenting stockholders.
• Track all post-closing obligations of the Company and the Purchasers and compile the closing binder (both physical and electronic) upon completion of the Transaction.
Estimated Time Commitment: Heavy. Nina Reyes will be the primary working associate on all ECVC/corporate workstreams throughout the engagement. Her hours are expected to represent the largest single allocation of associate time on the engagement. She will work closely with Leonard Ashford on a daily basis during the active phases of the Transaction.
3.5 Peter Vassiliev — Lead Associate, intellectual Property
Title: Lead Associate, intellectual Property
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Lead on all intellectual property due diligence workstreams in connection with the Transaction.
Responsibilities:
IP Due Diligence Review
• Lead the intellectual property due diligence review for Skybridge's core technology platform — a cloud-based SaaS payments orchestration and embedded lending platform with an annualized gross payment volume ("GPV") of approximately $4.2 billion. The IP diligence review will encompass the full scope of the Company's intellectual property portfolio and technology assets.
• Prepare the intellectual Property Diligence Memorandum, summarizing findings, identifying material IP risks and issues, and providing recommended actions for remediation or disclosure.
IP Ownership and Assignment Analysis
• Prepare a comprehensive IP Ownership & Assignment Analysis, including:
• Review of IP assignment agreements executed by co-founders Arjun Mehta and Elena Vasquez at or around the time of the Company's formation
• Review of employee IP assignment agreements (Proprietary Information and Inventions Assignment Agreements or equivalent) across the Company's engineering and product teams
• Review of contractor and consultant IP assignment agreements, including agreements with any third-party development firms engaged by the Company
• Identification of any gaps in the chain of assignment and recommended remedial actions (e.g., confirmatory assignments, retroactive agreements)
IP Portfolio Review
• Review and catalog the Company's patent portfolio, including issued patents, pending patent applications, and any patent prosecution matters
• Review and catalog trademark registrations and pending trademark applications (including federal, state, and international filings)
• Review copyright registrations, if any
• Assess the Company's trade secret protection protocols, including confidentiality agreements, access controls, and documentation of trade secret identification procedures
• Review domain name registrations and identify any cybersquatting or infringement concerns
Open-Source Software Compliance
• Analyze the Company's use of open-source software components within its platform, including identification of all open-source licenses in use, assessment of copyleft and permissive license compliance requirements, and evaluation of any risk of license contamination affecting the Company's proprietary codebase.
Transaction Document Input
• Review and provide input on all IP-related representations and warranties in the Note Purchase Agreement and the corresponding sections of the Company Disclosure Schedule
• Ensure that appropriate notice is included in IP-related provisions of the transaction documents in compliance with the federal Defend Trade Secrets Act ("DTSA"), 18 U.S.C. § 1836 et seq., including the required immunity notice under 18 U.S.C. § 1833(b)
Supervision and Coordination
• Coordinate with Wendy Schultz on all IP diligence tasks, including delegation of document review, research, and drafting assignments
• Coordinate with Leonard Ashford and Nina Reyes to ensure that IP diligence findings are appropriately reflected in the transaction documents and the Company Disclosure Schedule
Scope
The scope of the IP due diligence workstream was formally added to the engagement pursuant to an Engagement Letter Amendment dated December 1, 2023. The IP diligence work is to be performed within the existing $275,000 fee cap and does not represent an incremental budgetary commitment.
Estimated Time Commitment: Moderate. Peter Vassiliev's involvement will be concentrated during the diligence phase of the Transaction, which is anticipated to run from approximately mid-November through late December 2023. His time commitment will taper following the delivery of the IP Diligence Memorandum and IP Ownership & Assignment Analysis, with limited involvement during the closing phase for review of IP-related provisions in final transaction documents.
3.6 Wendy Schultz — Working Associate, intellectual Property
Title: Working Associate, intellectual Property
Office: Calderwood & Harkness LLP, 600 Lexington Avenue, New York, NY 10022
Role: Support associate for intellectual property due diligence, working under the direction and supervision of Peter Vassiliev.
Responsibilities:
• Assist Peter Vassiliev with IP due diligence document review and analysis across all categories of the Company's intellectual property portfolio.