SECRETARY'S CERTIFICATE OF GENOME DX THERAPEUTICS INC.
Delivered Pursuant to Section 6.01(e) of the Note Purchase Agreement dated April 9, 2024
April 22, 2024
The undersigned, Priya Raghunathan, J.D., hereby certifies that she is the duly appointed, qualified, and acting General Counsel and Corporate Secretary of Genome Dx Therapeutics Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and in such capacity is authorized to execute and deliver this certificate on behalf of the Company.
This Secretary's Certificate (this "Certificate") is delivered in connection with, and pursuant to the closing conditions set forth in, that certain Note Purchase Agreement dated as of April 9, 2024 (the "Purchase Agreement"), by and among the Company and the purchasers listed on the signature pages thereto, namely: Pinnacle BioVentures Fund III, L.P., Cormorant Health Capital Partners, L.P., and Alder Creek Life Sciences Fund II, L.P. (collectively, the "Purchasers"). The Purchase Agreement provides for the issuance and sale by the Company of Forty Million Dollars ($40,000,000) in aggregate principal amount of senior unsecured convertible promissory notes (the "Notes") to the Purchasers on the terms and subject to the conditions set forth therein.
Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Purchase Agreement.
This Certificate is delivered pursuant to the closing conditions set forth in Section 6.01(e) of the Purchase Agreement in connection with the closing of the transactions contemplated thereby on the date hereof, April 22, 2024 (the "Closing Date").
In her capacity as General Counsel and Corporate Secretary of the Company, and having reviewed the relevant corporate records, documents, and files of the Company, the undersigned hereby certifies as follows:
Section 1. Certification of Charter Documents
1.1 Restated Certificate of Incorporation
The document attached hereto as Exhibit A is a true, correct, and complete copy of the Restated Certificate of Incorporation of the Company (the "Charter"), as filed with the Secretary of State of the State of Delaware under Delaware file number 6347821. The Charter has not been further amended, modified, supplemented, or restated since the date of its most recent filing with the Secretary of State of the State of Delaware and remains in full force and effect as of the date hereof. No action has been taken by the Board of Directors or the stockholders of the Company to amend, modify, supplement, or restate the Charter, and no such amendment, modification, supplement, or restatement is pending or contemplated as of the date hereof. The Company was originally incorporated in the State of Delaware on March 14, 2017, under the name "Genome Dx Therapeutics Inc."
1.2 Bylaws. The document attached hereto as Exhibit B is a true, correct, and complete copy of the Bylaws of the Company (the "Bylaws"), as currently in effect. The Bylaws have not been amended, modified, supplemented, or restated since their most recent amendment and remain in full force and effect as of the date hereof. No action has been taken by the Board of Directors or the stockholders of the Company to amend, modify, supplement, or restate the Bylaws, and no such amendment, modification, supplement, or restatement is pending or contemplated as of the date hereof.
Section 2. Certification of Board Resolutions
The document attached hereto as Exhibit C is a true, correct, and complete copy of the Written Consent of the Board of Directors of the Company (the "Written Consent"), dated April 5, 2024, adopted by all of the directors of the Company eligible to vote thereon, in accordance with Section 141(f) of the General Corporation Law of the State of Delaware (the "DGCL") and the applicable provisions of the Company's Restated Certificate of Incorporation and Bylaws.
The Written Consent, among other things, approves the issuance by the Company of Forty Million Dollars ($40,000,000) in aggregate principal amount of senior unsecured convertible promissory notes pursuant to the Purchase Agreement and authorizes the execution, delivery, and performance by the Company of the Purchase Agreement, the Notes, and all ancillary agreements, instruments, certificates, and other documents contemplated thereby or required to be delivered in connection with the transactions contemplated by the Purchase Agreement (collectively, the "Transaction Documents").
The Written Consent further designates Dr. Marcus Avellino, Ph.D., MBA, the Company's Chief Executive Officer and Co-Founder, and Diane Kowalski, CPA, the Company's Chief Financial Officer, as authorized signatories for purposes of executing and delivering the Purchase Agreement, the Notes, the Officers' Certificate, and all related Transaction Documents on behalf of the Company, with full power and authority to take such further actions and execute such further documents, instruments, and certificates as may be necessary or desirable to consummate the transactions contemplated by the Purchase Agreement.
The resolutions set forth in the Written Consent have not been amended, modified, revoked, rescinded, or superseded in any respect and remain in full force and effect as of the date hereof. No other or further action has been taken by the Board of Directors or the stockholders of the Company that would alter, limit, or affect in any way the authority granted or the approvals given in the Written Consent.
For the avoidance of doubt, the undersigned notes that Jonathan Merriweather, Chair of the Board of Directors and Managing Director of Pinnacle BioVentures, recused himself from the deliberations and vote relating to the Written Consent due to the participation of Pinnacle BioVentures Fund III, L.P. as lead investor and Purchaser in the transaction contemplated by the Purchase Agreement. Mr. Merriweather's recusal was noted in the records of the Company and is reflected in the Written Consent attached as Exhibit C. All remaining members of the Board of Directors, constituting a quorum for purposes of Section 141 of the DGCL and the Company's Bylaws, acted unanimously by written consent in lieu of a meeting to approve the resolutions set forth in the Written Consent.
Section 3. Certification of Good Standing and Qualification
The Company is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. The Company's registered agent in the State of Delaware is Capitol Registered Agents, Inc., located at 1209 Orange Street, Suite 200, Wilmington, Delaware 19801. A certificate of good standing with respect to the Company issued by the Secretary of State of the State of Delaware, obtained in connection with the closing of the transactions contemplated by the Purchase Agreement, accompanies this Certificate. The undersigned notes that the original certificate of good standing previously obtained by the Company had aged beyond ten (10) business days prior to the anticipated Closing Date, and accordingly, a refreshed certificate of good standing was obtained from the Secretary of State of the State of Delaware in connection with the closing to satisfy the requirements of the Purchase Agreement.
The Company is duly qualified to transact business as a foreign corporation and is in good standing in the State of California, having filed its qualification to transact business as a foreign corporation in the State of California on April 3, 2017, and having been assigned California entity number C4085629. To the knowledge of the undersigned, after due inquiry, the Company is duly qualified to transact business as a foreign corporation in each other jurisdiction in which the nature of its business as currently conducted or the ownership, leasing, or operation of its properties and assets requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4. Incumbency and Specimen Signatures
The undersigned hereby further certifies that the following persons are the duly elected or appointed officers of the Company, holding the offices set forth opposite their respective names below, and that the signatures set forth opposite their names are their true and genuine signatures. Each such officer is authorized to execute and deliver documents on behalf of the Company in connection with the transactions contemplated by the Purchase Agreement.
Each of the above-named individuals has been duly elected or appointed to the office indicated opposite his or her name, is qualified and acting in such capacity as of the date hereof, and has not been removed, suspended, or otherwise displaced from such office. No proceedings for the removal or replacement of any such officer are pending or, to the knowledge of the undersigned, contemplated.
Each of Dr. Marcus Avellino, Ph.D., MBA, in his capacity as Chief Executive Officer and Co-Founder, and Diane Kowalski, CPA, in her capacity as Chief Financial Officer, is duly authorized to execute and deliver, on behalf of the Company, the Purchase Agreement, the Notes, the Officers' Certificate delivered pursuant to Section 6.01(d) of the Purchase Agreement, and any and all other agreements, instruments, certificates, and documents required or contemplated to be executed and delivered by the Company in connection with the transactions contemplated by the Purchase Agreement, and to take all such further actions as may be necessary or desirable in connection therewith.
Section 5. Additional Certifications
The undersigned hereby further certifies as follows:
(a) The Company's Federal Employer Identification Number (FEIN) is 82-3194507.
(b) The Company's principal office and headquarters is located at 450 Pinnacle Drive, Suite 300, South San Francisco, California 94080.
(c) No proceedings for the dissolution, liquidation, winding up, or termination of the Company's existence have been commenced, and no such proceedings are, to the knowledge of the undersigned after due inquiry, pending, threatened, or contemplated. No petition in bankruptcy or for reorganization or arrangement under any federal or state insolvency law has been filed by or, to the knowledge of the undersigned, against the Company, and no receiver, trustee, custodian, or similar official has been appointed for the Company or any material portion of its assets.
Section 6. Reliance
This Certificate is being delivered to the Purchasers under the Purchase Agreement — namely, Pinnacle BioVentures Fund III, L.P., Cormorant Health Capital Partners, L.P., and Alder Creek Life Sciences Fund II, L.P. — and to their counsel, Whitfield, Greer & Cavanaugh LLP, in connection with the closing of the transactions contemplated by the Purchase Agreement on the date hereof. The Purchasers and their counsel are entitled to rely on this Certificate and the certifications, representations, and statements contained herein as if made directly to each of them. This Certificate shall inure to the benefit of the Purchasers and their respective successors and assigns.
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IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of April 22, 2024.
GENOME DX THERAPEUTICS INC.
By: ________
Name: Priya Raghunathan, J.D.
Title: General Counsel & Corporate Secretary
Date: April 22, 2024
Counter-Certification. I, Dr. Marcus Avellino, Chief Executive Officer and Co-Founder of Genome Dx Therapeutics Inc., hereby certify that Priya Raghunathan, J.D., is the duly appointed, qualified, and acting General Counsel and Corporate Secretary of the Company and that the signature set forth above is her genuine signature. Ms. Raghunathan has been continuously serving in such capacity and has full authority to execute and deliver this Secretary's Certificate on behalf of the Company.
GENOME DX THERAPEUTICS INC.
By: ________
Name: Dr. Marcus Avellino, Ph.D., MBA
Title: Chief Executive Officer & Co-Founder
Date: April 22, 2024
EXHIBIT LIST
Exhibit A — Restated Certificate of Incorporation of Genome Dx Therapeutics Inc. (as filed with the Secretary of State of the State of Delaware; Delaware file number 6347821)
Exhibit B — Bylaws of Genome Dx Therapeutics Inc. (as currently in effect)
Exhibit C — Written Consent of the Board of Directors of Genome Dx Therapeutics Inc. dated April 5, 2024 (approving the issuance of $40,000,000 in aggregate principal amount of senior unsecured convertible promissory notes and the execution, delivery, and performance of the Note Purchase Agreement and all ancillary Transaction Documents)
[Exhibits A, B, and C are attached hereto and incorporated herein by reference.]
| Name | Title | Specimen Signature |
| Dr. Marcus Avellino, Ph.D., MBA | Chief Executive Officer & Co-Founder | ________ |
| Diane Kowalski, CPA | Chief Financial Officer | ________ |
| Priya Raghunathan, J.D. | General Counsel & Corporate Secretary | ________ |