1013-00002 · Client 1013 · Engagement

engagement-letter.docx DOCUMENT Capital Markets

7 / 12 ← → ✕

CALDERWOOD & HARKNESS LLP Attorneys at Law

600 California Street, 40th Floor San Francisco, California 94108 Telephone: (415) 392-7800 Facsimile: (415) 392-7801 www.calderwoodharkness.com

February 26, 2024

VIA EMAIL AND HAND DELIVERY

Priya Raghunathan, J.D. General Counsel & Corporate Secretary Genome Dx Therapeutics Inc. 450 Pinnacle Drive, Suite 300 South San Francisco, California 94080

Re: Engagement of Calderwood & Harkness LLP as Issuer's Counsel — $40,000,000 Senior Unsecured Convertible Promissory Note Placement Client/Matter Number: 1013-00002

Dear Ms. Raghunathan:

Thank you for selecting Calderwood & Harkness LLP ("Calderwood & Harkness," the "Firm," "we," or "us") to serve as legal counsel to Genome Dx Therapeutics Inc. We are pleased that you have entrusted this important engagement to the Firm, and we look forward to working closely with you and your colleagues throughout the transaction.

This letter confirms that the Firm has been engaged to represent Genome Dx Therapeutics Inc. ("GenomeDx" or the "Company"), a corporation duly organized and existing under the laws of the State of Delaware and headquartered in South San Francisco, California, as issuer's counsel in connection with the Company's proposed private placement (the "Placement" or the "Transaction") of up to Forty Million Dollars ($40,000,000) in aggregate principal amount of senior unsecured convertible promissory notes (the "Notes") to a syndicate of the Company's existing institutional investors (collectively, the "Purchasers"). The Placement will be structured as a private offering exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and Rule 506(b) of Regulation D promulgated thereunder. Based on information provided by the Company, the anticipated Purchasers include Pinnacle BioVentures Fund III, L.P., Cormorant Health Capital Partners, L.P., and Alder Creek Life Sciences Fund II, L.P. We understand that additional investors may be added to the syndicate with the Company's consent, subject to applicable securities law requirements.

This letter sets forth the terms and conditions of the Firm's engagement in connection with the Transaction and, together with the Firm's Standard Terms of Engagement enclosed herewith and incorporated herein by reference, constitutes the agreement between the Firm and the Company governing this representation.

1. Scope of Representation

The Firm's representation of the Company in connection with the Transaction will include the following services:

1.1 Transaction Documents. Drafting, reviewing, and negotiating the Note Purchase Agreement (the "NPA") and all ancillary transaction documents related thereto, including, without limitation, the form of senior unsecured convertible promissory note, the disclosure schedules to be delivered pursuant to the NPA, and any side letters or supplemental agreements entered into by the Company in connection with the Transaction. The Firm will prepare the initial drafts of all transaction documents and will manage the negotiation process with investors' counsel on behalf of the Company, as further described in Section 1.7 below.

1.2 Corporate Authorizing Documents. Preparation of all corporate authorizing resolutions and related governance documents necessary to authorize the Transaction and the issuance of the Notes, including a unanimous written consent of the Board of Directors of the Company (or, if applicable, a written consent of the authorized committee thereof), an officers' certificate certifying the organizational documents, incumbency, and authorization of the Transaction, a secretary's certificate, and such other closing documents as may be required by the NPA or reasonably requested by the Purchasers or their counsel.

1.3 Legal Due Diligence. Conducting legal due diligence on the Company as necessary and appropriate to support the representations and warranties to be set forth in the NPA and to enable the Firm to render the legal opinion described in Section 1.4 below. The scope of such due diligence is expected to include, without limitation, a review of the Company's certificate of incorporation, bylaws, and other organizational documents; the Company's capitalization, including outstanding equity securities, options, warrants, and convertible instruments; material contracts and agreements; intellectual property matters (limited to a review of existing schedules and summaries provided by the Company, and not including prosecution, freedom-to-operate analysis, or patentability opinions); regulatory and compliance matters relevant to the representations and warranties; and pending or threatened litigation. The specific scope and depth of due diligence will be determined in consultation with the Company and may be adjusted based on the requirements of the NPA and the Purchasers.

1.4 Legal Opinion. Rendering a legal opinion letter (the "Opinion") at the closing of the Transaction, addressed to the Purchasers and their counsel, covering such matters as are customary for transactions of this nature and as may be agreed upon by the parties, which are expected to include, without limitation: (a) the due organization, valid existence, and good standing of the Company under the laws of the State of Delaware; (b) the corporate power and authority of the Company to execute, deliver, and perform its obligations under the NPA and the Notes; (c) the due authorization, execution, and delivery of the NPA, the Notes, and the other transaction documents by the Company; (d) the enforceability of the NPA and the Notes against the Company in accordance with their respective terms, subject to customary exceptions and qualifications; (e) the absence of conflicts with the Company's organizational documents, applicable law, and certain material agreements; and (f) the availability of the exemption from registration under Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D with respect to the offer and sale of the Notes. The Opinion will be subject to customary assumptions, qualifications, and limitations and will be rendered in accordance with the prevailing standards of the American Bar Association and applicable California and Delaware practice.

1.5 Closing Process Management. Managing the closing process for the Transaction, including preparation and maintenance of the closing checklist, preparation of the funds flow memorandum, coordination with the paying agent and/or escrow agent, which we understand will be Meridian Pacific Bank, N.A., and compilation, circulation, and collection of executed signature pages. The Firm will prepare and distribute a closing set of all fully executed transaction documents to the Company and the Purchasers promptly following the closing.

1.6 Post-Closing Regulatory Filings. Preparation and filing of a Form D notice of exempt offering of securities with the U.S. Securities and Exchange Commission (the "SEC") on behalf of the Company, as required under Regulation D. In addition, the Firm will prepare and file such state securities or "blue sky" notice filings as may be required in connection with the Transaction, which, based on currently available information, are expected to include filings in the State of California, the State of New York, the Commonwealth of Massachusetts, and the State of Delaware. The Firm will advise the Company regarding additional state filing obligations that may arise depending on the residency or principal office locations of the Purchasers.

1.7 Coordination with Investors' Counsel. Serving as the primary point of contact for, and managing all negotiations and communications with, Whitfield, Greer & Cavanaugh LLP, acting as counsel to the Purchasers, on behalf of the Company with respect to all aspects of the Transaction, including the negotiation and finalization of the NPA, the form of Note, the disclosure schedules, and all ancillary documents and closing deliverables.

1.8 Scope Limitations. The engagement described in this letter is limited to the specific services set forth in Sections 1.1 through 1.7 above. Without limiting the generality of the foregoing, the Firm's engagement does not include, and the Firm will not be providing, any of the following services:

(a) Tax advice or tax planning of any kind. The Company should consult with its own tax advisors regarding the tax consequences of the Transaction to the Company, its stockholders, and the Purchasers.

(b) Accounting advice or the preparation or review of financial statements, projections, or other accounting materials.

(c) Business advice, investment advice, or any advice regarding the commercial or financial merits of the Transaction or the terms of the Notes.

(d) intellectual property prosecution, patent or trademark filings, freedom-to-operate analyses, patentability opinions, or any other intellectual property advisory services beyond the limited due diligence review described in Section 1.3.

(e) Preparation of submissions, applications, or filings to or with the U.S. Food and Drug Administration (the "FDA") or any other regulatory body relating to the Company's products, clinical trials, or regulatory approvals.

(f) Representation in connection with any matter unrelated to the convertible note placement described herein, including, without limitation, any future financing, initial public offering, merger, acquisition, disposition, joint venture, licensing transaction, employment matter, or dispute resolution proceeding, unless separately agreed upon in writing between the Firm and the Company.

The Company acknowledges and agrees that the Firm's duties and obligations are limited to the scope of the engagement as described in this Section 1 and that the Firm shall have no responsibility or liability for any matters outside the scope of this engagement.

2. Engagement Team

The following attorneys have been assigned to work on this engagement:

2.1 Responsible Partner. Theodore Langston, Partner, Capital Markets group, San Francisco office. Mr. Langston will have overall supervisory responsibility for the engagement, will serve as the primary relationship partner, and will be available to address significant legal and strategic issues arising in connection with the Transaction. Mr. Langston has extensive experience in private placements, convertible instruments, and life sciences capital markets transactions.

2.2 Billing Partner. Vivienne St. Claire, Partner, Capital Markets group, San Francisco office. Ms. St. Claire will serve as the billing partner for the matter and will be the primary contact for all fee inquiries, billing questions, and budgetary matters. Ms. St. Claire will also provide substantive legal advice and review key transaction documents as needed throughout the engagement.

2.3 Lead Associate. Audrey Zhou, Associate, Capital Markets group, San Francisco office. Ms. Zhou will manage the day-to-day execution of the Transaction, including the initial drafting and revision of all transaction documents, coordination of the legal due diligence process, management of the closing mechanics, and regular communication with the Company and investors' counsel. Ms. Zhou will report directly to Mr. Langston and Ms. St. Claire on all substantive matters.

2.4 Working Associate. Brendan Walsh, Associate, Capital Markets group, San Francisco office. Mr. Walsh will assist Ms. Zhou with document preparation, legal research, due diligence review, preparation of closing deliverables, and other support tasks as required throughout the engagement.

2.5 Additional Personnel. The Firm may assign additional attorneys, paralegals, legal assistants, or other professional staff to work on the engagement as reasonably necessary to ensure the timely and efficient completion of the Transaction. The Company will be notified of any material changes to the engagement team, including the departure or substitution of any of the attorneys identified in Sections 2.1 through 2.4 above.

3. Fees and Billing

3.1 Fee Arrangement. The Company will be billed for professional services rendered in connection with the engagement on an hourly basis at the then-current hourly rates of the attorneys and other professionals working on the matter. Time is recorded and billed in increments of one-tenth (0.1) of an hour. The Firm does not charge any retainer for this engagement.

3.2 Current Hourly Rates. The current hourly rates for the principal members of the engagement team are as follows:

Paralegal and legal assistant time, if applicable, will be billed at hourly rates ranging from $275.00 to $375.00 per hour, depending on the experience level and role of the individual assigned.

The foregoing hourly rates are subject to annual adjustment by the Firm, with such adjustments typically taking effect on January 1 of each calendar year. The current rates set forth above apply through December 31, 2024. The Firm will notify the Company of any rate changes in advance of their effective date.

3.3 Fee Estimate. Based on the Firm's understanding of the anticipated scope and complexity of the Transaction as presently contemplated, the Firm estimates that total legal fees for the engagement will be in the range of One Hundred Seventy-Five Thousand Dollars ($175,000) to Two Hundred Twenty-Five Thousand Dollars ($225,000). This estimate is provided solely for the Company's budgeting and planning purposes and does not constitute a cap, ceiling, fixed fee, or maximum fee arrangement. Actual fees incurred may be higher or lower than the estimated range depending on a number of factors, including the complexity and duration of the negotiations with the Purchasers and their counsel, the scope and depth of the legal due diligence process, the number and nature of issues identified during due diligence, the extent of revisions to the transaction documents, the number of closing conditions and deliverables, and any unforeseen issues or complications that may arise during the course of the Transaction. The Firm will endeavor to keep the Company informed of material deviations from this estimate on a timely basis, and the Firm welcomes an ongoing dialogue regarding fees and budget management throughout the engagement.

3.4 Expenses. In addition to professional fees, the Company will reimburse the Firm for all reasonable out-of-pocket expenses incurred in connection with the engagement, including, without limitation, governmental filing fees, document production and reproduction costs, courier and messenger charges, travel expenses (including airfare, lodging, and ground transportation, if applicable), online research charges, and similar disbursements. Out-of-pocket expenses (excluding governmental filing fees, which are passed through to the Company at cost) are subject to a cap of Seven Thousand Five Hundred Dollars ($7,500) for the duration of the engagement, absent prior written approval from the Company for expenses in excess of such amount. For the avoidance of doubt, filing fees associated with the Form D filing with the SEC and all applicable state blue sky and securities notice filings are not subject to this cap and will be billed to the Company at cost.

3.5 Billing Frequency. Invoices will be prepared and issued by the Firm on a monthly basis, reflecting professional fees earned and expenses incurred during the preceding billing period. Each invoice will contain reasonable detail regarding the nature of the services rendered, the identity of the professional performing such services, the time expended, and the expenses incurred. Invoices are due and payable within thirty (30) days of the date of the invoice. The Firm reserves the right to charge interest on past-due amounts at the rate of one percent (1.0%) per month, or the maximum rate permitted by applicable law, whichever is less. In the event of a billing dispute, the Company agrees to promptly notify the Firm in writing and to pay all undisputed amounts in accordance with the foregoing terms while the dispute is being resolved.

4. Client Identification and Conflicts

4.1 Client Identification. The Firm's client in this engagement is Genome Dx Therapeutics Inc., the corporate entity. The Firm does not represent, and will not be deemed to represent, any shareholder, director, officer, employee, or affiliate of the Company in their individual or personal capacities in connection with this engagement. To the extent that any individual associated with the Company has interests that differ from or are adverse to those of the Company in connection with the Transaction, such individuals should be advised to seek independent legal counsel.

4.2 Conflicts Check. Prior to agreeing to undertake this engagement, the Firm conducted a comprehensive conflicts of interest check in accordance with its internal policies and the applicable California Rules of Professional Conduct. Based on the results of that review, the Firm has not identified any existing conflicts of interest that would prevent or prohibit the Firm from undertaking this representation.

The Company acknowledges and understands that Calderwood & Harkness is a large, full-service law firm that represents a wide range of clients across numerous industries, including the life sciences and biotechnology sectors. It is possible that the Firm currently represents, or may in the future represent, other clients whose interests differ from or may be adverse to those of the Company in matters unrelated to the Transaction described in this engagement letter. The Company hereby consents to such representations by the Firm, provided that any such representations do not involve the specific Transaction described herein or any matter that is substantially related to the Transaction and in which the Company's confidential information could be used to the Company's disadvantage. In the event that the Firm identifies a potential conflict of interest during the course of this engagement, the Firm will promptly notify the Company and will take such steps as are required by the applicable rules of professional conduct, which may include seeking an informed written consent or, if a conflict cannot be waived, withdrawing from the engagement.

5. Confidentiality

Calderwood & Harkness will maintain the confidentiality of all information provided by the Company in connection with this engagement, including all non-public, proprietary, financial, technical, scientific, clinical, regulatory, and business information disclosed by the Company or its representatives to the Firm, whether in written, oral, electronic, or other form (collectively, "Confidential Information"). The Firm will not disclose Confidential Information to any third party without the prior written authorization or direction of the Company, except as may be required by applicable law, regulation, or court order, or as necessary in connection with the Firm's professional obligations under the applicable rules of professional conduct. In the event the Firm is compelled by law to disclose any Confidential Information, the Firm will, to the extent permitted, provide the Company with prompt written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.

The Firm's obligations of confidentiality described in this Section 5 shall survive the termination or conclusion of the engagement for any reason and shall continue in full force and effect indefinitely thereafter, subject to applicable law.

6. Document Retention

Working papers, correspondence, memoranda, notes, research materials, transaction documents, and other files and records generated or received by the Firm in connection with this engagement (collectively, the "Engagement Files") will be retained by the Firm in accordance with its standard document retention policies then in effect. Following the conclusion of the engagement, whether by completion of the Transaction, termination, or otherwise, the Firm will maintain the Engagement Files for a period of not less than seven (7) years from the date of the final invoice issued in connection with this matter. Following the expiration of such retention period, the Firm may, in its sole discretion, destroy or dispose of the Engagement Files without further notice to the Company. The Company may request the return of original documents provided by the Company to the Firm at any time during the retention period, and the Firm will promptly comply with such request.

7. Communication and Client Contact

The primary client contact for this engagement is Priya Raghunathan, J.D., General Counsel & Corporate Secretary of Genome Dx Therapeutics Inc. All significant legal advice, strategic recommendations, and material updates regarding the Transaction will be directed to Ms. Raghunathan in the first instance.

In addition, the Firm may communicate directly with Dr. Marcus Avellino, Chief Executive Officer, and Diane Kowalski, Chief Financial Officer, of the Company as necessary and appropriate in connection with the Transaction, including for the purpose of obtaining factual information, discussing business terms, coordinating due diligence, and facilitating the closing process. All such communications with Dr. Avellino and Ms. Kowalski will be subject to prior coordination with Ms. Raghunathan, and the Firm will keep Ms. Raghunathan informed of any substantive communications with such individuals.

The Firm's preferred methods of communication for this engagement are email and telephone. Sensitive documents, including draft transaction documents, due diligence materials, and privileged legal memoranda, should be shared through the Firm's secure document portal, access credentials for which will be provided to the Company's authorized personnel at the outset of the engagement. The Company agrees to promptly notify the Firm of any changes to its designated contacts or preferred methods of communication.

8. Termination

Either party may terminate this engagement at any time upon written notice to the other party. In the event of termination, the Company remains responsible for the payment of all professional fees earned and expenses incurred by the Firm through the date of termination, including any fees and expenses reflected on invoices that have not yet been issued as of the date of termination.

Upon termination or withdrawal, the Firm will take all reasonable steps necessary to protect the Company's interests, including, without limitation, providing reasonable notice and cooperating in the transition of the matter to successor counsel designated by the Company. The Firm's obligations upon termination are subject at all times to applicable professional responsibility rules, the California Rules of Professional Conduct, and any requirements imposed by a court or tribunal of competent jurisdiction. Termination of the engagement shall not affect the Company's obligation to pay amounts due under this engagement letter or the Firm's obligations of confidentiality as set forth in Section 5.

9. Limitation of Liability

To the fullest extent permitted by applicable law and the California Rules of Professional Conduct, the aggregate liability of the Firm, its partners, associates, employees, and agents, arising out of or relating to this engagement, whether based on contract, tort, negligence, strict liability, professional malpractice, or any other theory of liability, shall not exceed the total amount of professional fees actually paid by the Company to the Firm under this engagement letter for the specific matter giving rise to the claim. This limitation shall not apply in cases of willful misconduct or gross negligence on the part of the Firm.

In no event shall the Firm be liable to the Company for any consequential, indirect, incidental, special, or punitive damages of any kind, including, without limitation, loss of profits, loss of business opportunities, diminution in value, or any other economic damages that are not direct damages, regardless of whether the Firm has been advised of the possibility of such damages and regardless of the theory of liability. The foregoing limitations of liability shall survive the termination or conclusion of the engagement.

10. Governing Law

This engagement letter, and all rights and obligations of the parties hereunder, shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws principles thereof that would require the application of the laws of any other jurisdiction. Any dispute arising out of or relating to this engagement letter or the Firm's representation of the Company hereunder shall be resolved exclusively in the state or federal courts located in the City and County of San Francisco, California, and each party hereby consents to the personal jurisdiction and venue of such courts.

11. Entire Agreement / Amendments

This engagement letter, together with the Firm's Standard Terms of Engagement enclosed herewith and incorporated herein by reference, constitutes the entire agreement between the Firm and the Company with respect to the engagement described herein and supersedes all prior and contemporaneous discussions, negotiations, proposals, understandings, and agreements, whether written or oral, relating to the subject matter hereof. In the event of any conflict between the terms of this engagement letter and the Standard Terms of Engagement, the terms of this engagement letter shall control.

No amendment, modification, supplement, or waiver of any provision of this engagement letter shall be effective unless set forth in a written instrument duly executed by authorized representatives of both the Firm and the Company. No failure or delay by either party in exercising any right or remedy hereunder shall operate as a waiver thereof.

We are enthusiastic about the opportunity to work with GenomeDx on this important transaction and are confident that our Capital Markets team is well positioned to provide the Company with the high-quality legal counsel it requires. We look forward to a productive and successful engagement.

If the foregoing terms are acceptable, please confirm your agreement by countersigning this letter in the space provided below and returning an executed copy to us at your earliest convenience. A duplicate original of this letter is enclosed for your records. Should you have any questions regarding the terms of this engagement letter or any other matter, please do not hesitate to contact me directly at (415) 392-7824 or tlangston@calderwoodharkness.com.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Name: Theodore Langston

Title: Partner

Calderwood & Harkness LLP 600 California Street, 40th Floor San Francisco, California 94108

ACKNOWLEDGED AND AGREED

The undersigned, on behalf of Genome Dx Therapeutics Inc., hereby acknowledges receipt of this engagement letter, confirms acceptance of the terms and conditions set forth herein, and agrees to be bound thereby.

GENOME DX THERAPEUTICS INC.

By: ________

Name: Priya Raghunathan, J.D.

Title: General Counsel & Corporate Secretary

Genome Dx Therapeutics Inc. 450 Pinnacle Drive, Suite 300 South San Francisco, California 94080

Date: ________

Enclosure: Calderwood & Harkness LLP Standard Terms of Engagement (incorporated by reference)

cc: Dr. Marcus Avellino, Chief Executive Officer, Genome Dx Therapeutics Inc. Diane Kowalski, Chief Financial Officer, Genome Dx Therapeutics Inc. Vivienne St. Claire, Partner, Calderwood & Harkness LLP

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED This engagement letter and the information contained herein are confidential and are intended solely for the use of the addressee. Any unauthorized review, use, disclosure, or distribution is prohibited.

Professional	Title	Hourly Rate
Theodore Langston	Partner	$1,150.00
Vivienne St. Claire	Partner	$1,150.00
Audrey Zhou	Lead Associate	$725.00
Brendan Walsh	Working Associate	$575.00

CALDERWOOD & HARKNESS LLP Attorneys at Law
600 California Street, 40th Floor San Francisco, California 94108 Telephone: (415) 392-7800 Facsimile: (415) 392-7801 www.calderwoodharkness.com
February 26, 2024
VIA EMAIL AND HAND DELIVERY
Priya Raghunathan, J.D. General Counsel & Corporate Secretary Genome Dx Therapeutics Inc. 450 Pinnacle Drive, Suite 300 South San Francisco, California 94080
Re: Engagement of Calderwood & Harkness LLP as Issuer's Counsel — $40,000,000 Senior Unsecured Convertible Promissory Note Placement Client/Matter Number: 1013-00002
Dear Ms. Raghunathan:
Thank you for selecting Calderwood & Harkness LLP ("Calderwood & Harkness," the "Firm," "we," or "us") to serve as legal counsel to Genome Dx Therapeutics Inc. We are pleased that you have entrusted this important engagement to the Firm, and we look forward to working closely with you and your colleagues throughout the transaction.
This letter confirms that the Firm has been engaged to represent Genome Dx Therapeutics Inc. ("GenomeDx" or the "Company"), a corporation duly organized and existing under the laws of the State of Delaware and headquartered in South San Francisco, California, as issuer's counsel in connection with the Company's proposed private placement (the "Placement" or the "Transaction") of up to Forty Million Dollars ($40,000,000) in aggregate principal amount of senior unsecured convertible promissory notes (the "Notes") to a syndicate of the Company's existing institutional investors (collectively, the "Purchasers"). The Placement will be structured as a private offering exempt from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the "Securities Act"), and Rule 506(b) of Regulation D promulgated thereunder. Based on information provided by the Company, the anticipated Purchasers include Pinnacle BioVentures Fund III, L.P., Cormorant Health Capital Partners, L.P., and Alder Creek Life Sciences Fund II, L.P. We understand that additional investors may be added to the syndicate with the Company's consent, subject to applicable securities law requirements.
This letter sets forth the terms and conditions of the Firm's engagement in connection with the Transaction and, together with the Firm's Standard Terms of Engagement enclosed herewith and incorporated herein by reference, constitutes the agreement between the Firm and the Company governing this representation.
1. Scope of Representation
The Firm's representation of the Company in connection with the Transaction will include the following services:
1.1 Transaction Documents. Drafting, reviewing, and negotiating the Note Purchase Agreement (the "NPA") and all ancillary transaction documents related thereto, including, without limitation, the form of senior unsecured convertible promissory note, the disclosure schedules to be delivered pursuant to the NPA, and any side letters or supplemental agreements entered into by the Company in connection with the Transaction. The Firm will prepare the initial drafts of all transaction documents and will manage the negotiation process with investors' counsel on behalf of the Company, as further described in Section 1.7 below.
1.2 Corporate Authorizing Documents. Preparation of all corporate authorizing resolutions and related governance documents necessary to authorize the Transaction and the issuance of the Notes, including a unanimous written consent of the Board of Directors of the Company (or, if applicable, a written consent of the authorized committee thereof), an officers' certificate certifying the organizational documents, incumbency, and authorization of the Transaction, a secretary's certificate, and such other closing documents as may be required by the NPA or reasonably requested by the Purchasers or their counsel.
1.3 Legal Due Diligence. Conducting legal due diligence on the Company as necessary and appropriate to support the representations and warranties to be set forth in the NPA and to enable the Firm to render the legal opinion described in Section 1.4 below. The scope of such due diligence is expected to include, without limitation, a review of the Company's certificate of incorporation, bylaws, and other organizational documents; the Company's capitalization, including outstanding equity securities, options, warrants, and convertible instruments; material contracts and agreements; intellectual property matters (limited to a review of existing schedules and summaries provided by the Company, and not including prosecution, freedom-to-operate analysis, or patentability opinions); regulatory and compliance matters relevant to the representations and warranties; and pending or threatened litigation. The specific scope and depth of due diligence will be determined in consultation with the Company and may be adjusted based on the requirements of the NPA and the Purchasers.
1.4 Legal Opinion. Rendering a legal opinion letter (the "Opinion") at the closing of the Transaction, addressed to the Purchasers and their counsel, covering such matters as are customary for transactions of this nature and as may be agreed upon by the parties, which are expected to include, without limitation: (a) the due organization, valid existence, and good standing of the Company under the laws of the State of Delaware; (b) the corporate power and authority of the Company to execute, deliver, and perform its obligations under the NPA and the Notes; (c) the due authorization, execution, and delivery of the NPA, the Notes, and the other transaction documents by the Company; (d) the enforceability of the NPA and the Notes against the Company in accordance with their respective terms, subject to customary exceptions and qualifications; (e) the absence of conflicts with the Company's organizational documents, applicable law, and certain material agreements; and (f) the availability of the exemption from registration under Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D with respect to the offer and sale of the Notes. The Opinion will be subject to customary assumptions, qualifications, and limitations and will be rendered in accordance with the prevailing standards of the American Bar Association and applicable California and Delaware practice.
1.5 Closing Process Management. Managing the closing process for the Transaction, including preparation and maintenance of the closing checklist, preparation of the funds flow memorandum, coordination with the paying agent and/or escrow agent, which we understand will be Meridian Pacific Bank, N.A., and compilation, circulation, and collection of executed signature pages. The Firm will prepare and distribute a closing set of all fully executed transaction documents to the Company and the Purchasers promptly following the closing.
1.6 Post-Closing Regulatory Filings. Preparation and filing of a Form D notice of exempt offering of securities with the U.S. Securities and Exchange Commission (the "SEC") on behalf of the Company, as required under Regulation D. In addition, the Firm will prepare and file such state securities or "blue sky" notice filings as may be required in connection with the Transaction, which, based on currently available information, are expected to include filings in the State of California, the State of New York, the Commonwealth of Massachusetts, and the State of Delaware. The Firm will advise the Company regarding additional state filing obligations that may arise depending on the residency or principal office locations of the Purchasers.
1.7 Coordination with Investors' Counsel. Serving as the primary point of contact for, and managing all negotiations and communications with, Whitfield, Greer & Cavanaugh LLP, acting as counsel to the Purchasers, on behalf of the Company with respect to all aspects of the Transaction, including the negotiation and finalization of the NPA, the form of Note, the disclosure schedules, and all ancillary documents and closing deliverables.
1.8 Scope Limitations. The engagement described in this letter is limited to the specific services set forth in Sections 1.1 through 1.7 above. Without limiting the generality of the foregoing, the Firm's engagement does not include, and the Firm will not be providing, any of the following services:
(a) Tax advice or tax planning of any kind. The Company should consult with its own tax advisors regarding the tax consequences of the Transaction to the Company, its stockholders, and the Purchasers.
(b) Accounting advice or the preparation or review of financial statements, projections, or other accounting materials.
(c) Business advice, investment advice, or any advice regarding the commercial or financial merits of the Transaction or the terms of the Notes.
(d) intellectual property prosecution, patent or trademark filings, freedom-to-operate analyses, patentability opinions, or any other intellectual property advisory services beyond the limited due diligence review described in Section 1.3.
(e) Preparation of submissions, applications, or filings to or with the U.S. Food and Drug Administration (the "FDA") or any other regulatory body relating to the Company's products, clinical trials, or regulatory approvals.
(f) Representation in connection with any matter unrelated to the convertible note placement described herein, including, without limitation, any future financing, initial public offering, merger, acquisition, disposition, joint venture, licensing transaction, employment matter, or dispute resolution proceeding, unless separately agreed upon in writing between the Firm and the Company.
The Company acknowledges and agrees that the Firm's duties and obligations are limited to the scope of the engagement as described in this Section 1 and that the Firm shall have no responsibility or liability for any matters outside the scope of this engagement.
2. Engagement Team
The following attorneys have been assigned to work on this engagement:
2.1 Responsible Partner. Theodore Langston, Partner, Capital Markets group, San Francisco office. Mr. Langston will have overall supervisory responsibility for the engagement, will serve as the primary relationship partner, and will be available to address significant legal and strategic issues arising in connection with the Transaction. Mr. Langston has extensive experience in private placements, convertible instruments, and life sciences capital markets transactions.
2.2 Billing Partner. Vivienne St. Claire, Partner, Capital Markets group, San Francisco office. Ms. St. Claire will serve as the billing partner for the matter and will be the primary contact for all fee inquiries, billing questions, and budgetary matters. Ms. St. Claire will also provide substantive legal advice and review key transaction documents as needed throughout the engagement.
2.3 Lead Associate. Audrey Zhou, Associate, Capital Markets group, San Francisco office. Ms. Zhou will manage the day-to-day execution of the Transaction, including the initial drafting and revision of all transaction documents, coordination of the legal due diligence process, management of the closing mechanics, and regular communication with the Company and investors' counsel. Ms. Zhou will report directly to Mr. Langston and Ms. St. Claire on all substantive matters.
2.4 Working Associate. Brendan Walsh, Associate, Capital Markets group, San Francisco office. Mr. Walsh will assist Ms. Zhou with document preparation, legal research, due diligence review, preparation of closing deliverables, and other support tasks as required throughout the engagement.
2.5 Additional Personnel. The Firm may assign additional attorneys, paralegals, legal assistants, or other professional staff to work on the engagement as reasonably necessary to ensure the timely and efficient completion of the Transaction. The Company will be notified of any material changes to the engagement team, including the departure or substitution of any of the attorneys identified in Sections 2.1 through 2.4 above.
3. Fees and Billing
3.1 Fee Arrangement. The Company will be billed for professional services rendered in connection with the engagement on an hourly basis at the then-current hourly rates of the attorneys and other professionals working on the matter. Time is recorded and billed in increments of one-tenth (0.1) of an hour. The Firm does not charge any retainer for this engagement.
3.2 Current Hourly Rates. The current hourly rates for the principal members of the engagement team are as follows:
Paralegal and legal assistant time, if applicable, will be billed at hourly rates ranging from $275.00 to $375.00 per hour, depending on the experience level and role of the individual assigned.
The foregoing hourly rates are subject to annual adjustment by the Firm, with such adjustments typically taking effect on January 1 of each calendar year. The current rates set forth above apply through December 31, 2024. The Firm will notify the Company of any rate changes in advance of their effective date.
3.3 Fee Estimate. Based on the Firm's understanding of the anticipated scope and complexity of the Transaction as presently contemplated, the Firm estimates that total legal fees for the engagement will be in the range of One Hundred Seventy-Five Thousand Dollars ($175,000) to Two Hundred Twenty-Five Thousand Dollars ($225,000). This estimate is provided solely for the Company's budgeting and planning purposes and does not constitute a cap, ceiling, fixed fee, or maximum fee arrangement. Actual fees incurred may be higher or lower than the estimated range depending on a number of factors, including the complexity and duration of the negotiations with the Purchasers and their counsel, the scope and depth of the legal due diligence process, the number and nature of issues identified during due diligence, the extent of revisions to the transaction documents, the number of closing conditions and deliverables, and any unforeseen issues or complications that may arise during the course of the Transaction. The Firm will endeavor to keep the Company informed of material deviations from this estimate on a timely basis, and the Firm welcomes an ongoing dialogue regarding fees and budget management throughout the engagement.
3.4 Expenses. In addition to professional fees, the Company will reimburse the Firm for all reasonable out-of-pocket expenses incurred in connection with the engagement, including, without limitation, governmental filing fees, document production and reproduction costs, courier and messenger charges, travel expenses (including airfare, lodging, and ground transportation, if applicable), online research charges, and similar disbursements. Out-of-pocket expenses (excluding governmental filing fees, which are passed through to the Company at cost) are subject to a cap of Seven Thousand Five Hundred Dollars ($7,500) for the duration of the engagement, absent prior written approval from the Company for expenses in excess of such amount. For the avoidance of doubt, filing fees associated with the Form D filing with the SEC and all applicable state blue sky and securities notice filings are not subject to this cap and will be billed to the Company at cost.
3.5 Billing Frequency. Invoices will be prepared and issued by the Firm on a monthly basis, reflecting professional fees earned and expenses incurred during the preceding billing period. Each invoice will contain reasonable detail regarding the nature of the services rendered, the identity of the professional performing such services, the time expended, and the expenses incurred. Invoices are due and payable within thirty (30) days of the date of the invoice. The Firm reserves the right to charge interest on past-due amounts at the rate of one percent (1.0%) per month, or the maximum rate permitted by applicable law, whichever is less. In the event of a billing dispute, the Company agrees to promptly notify the Firm in writing and to pay all undisputed amounts in accordance with the foregoing terms while the dispute is being resolved.
4. Client Identification and Conflicts
4.1 Client Identification. The Firm's client in this engagement is Genome Dx Therapeutics Inc., the corporate entity. The Firm does not represent, and will not be deemed to represent, any shareholder, director, officer, employee, or affiliate of the Company in their individual or personal capacities in connection with this engagement. To the extent that any individual associated with the Company has interests that differ from or are adverse to those of the Company in connection with the Transaction, such individuals should be advised to seek independent legal counsel.
4.2 Conflicts Check. Prior to agreeing to undertake this engagement, the Firm conducted a comprehensive conflicts of interest check in accordance with its internal policies and the applicable California Rules of Professional Conduct. Based on the results of that review, the Firm has not identified any existing conflicts of interest that would prevent or prohibit the Firm from undertaking this representation.
The Company acknowledges and understands that Calderwood & Harkness is a large, full-service law firm that represents a wide range of clients across numerous industries, including the life sciences and biotechnology sectors. It is possible that the Firm currently represents, or may in the future represent, other clients whose interests differ from or may be adverse to those of the Company in matters unrelated to the Transaction described in this engagement letter. The Company hereby consents to such representations by the Firm, provided that any such representations do not involve the specific Transaction described herein or any matter that is substantially related to the Transaction and in which the Company's confidential information could be used to the Company's disadvantage. In the event that the Firm identifies a potential conflict of interest during the course of this engagement, the Firm will promptly notify the Company and will take such steps as are required by the applicable rules of professional conduct, which may include seeking an informed written consent or, if a conflict cannot be waived, withdrawing from the engagement.
5. Confidentiality
Calderwood & Harkness will maintain the confidentiality of all information provided by the Company in connection with this engagement, including all non-public, proprietary, financial, technical, scientific, clinical, regulatory, and business information disclosed by the Company or its representatives to the Firm, whether in written, oral, electronic, or other form (collectively, "Confidential Information"). The Firm will not disclose Confidential Information to any third party without the prior written authorization or direction of the Company, except as may be required by applicable law, regulation, or court order, or as necessary in connection with the Firm's professional obligations under the applicable rules of professional conduct. In the event the Firm is compelled by law to disclose any Confidential Information, the Firm will, to the extent permitted, provide the Company with prompt written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.
The Firm's obligations of confidentiality described in this Section 5 shall survive the termination or conclusion of the engagement for any reason and shall continue in full force and effect indefinitely thereafter, subject to applicable law.
6. Document Retention
Working papers, correspondence, memoranda, notes, research materials, transaction documents, and other files and records generated or received by the Firm in connection with this engagement (collectively, the "Engagement Files") will be retained by the Firm in accordance with its standard document retention policies then in effect. Following the conclusion of the engagement, whether by completion of the Transaction, termination, or otherwise, the Firm will maintain the Engagement Files for a period of not less than seven (7) years from the date of the final invoice issued in connection with this matter. Following the expiration of such retention period, the Firm may, in its sole discretion, destroy or dispose of the Engagement Files without further notice to the Company. The Company may request the return of original documents provided by the Company to the Firm at any time during the retention period, and the Firm will promptly comply with such request.
7. Communication and Client Contact
The primary client contact for this engagement is Priya Raghunathan, J.D., General Counsel & Corporate Secretary of Genome Dx Therapeutics Inc. All significant legal advice, strategic recommendations, and material updates regarding the Transaction will be directed to Ms. Raghunathan in the first instance.
In addition, the Firm may communicate directly with Dr. Marcus Avellino, Chief Executive Officer, and Diane Kowalski, Chief Financial Officer, of the Company as necessary and appropriate in connection with the Transaction, including for the purpose of obtaining factual information, discussing business terms, coordinating due diligence, and facilitating the closing process. All such communications with Dr. Avellino and Ms. Kowalski will be subject to prior coordination with Ms. Raghunathan, and the Firm will keep Ms. Raghunathan informed of any substantive communications with such individuals.
The Firm's preferred methods of communication for this engagement are email and telephone. Sensitive documents, including draft transaction documents, due diligence materials, and privileged legal memoranda, should be shared through the Firm's secure document portal, access credentials for which will be provided to the Company's authorized personnel at the outset of the engagement. The Company agrees to promptly notify the Firm of any changes to its designated contacts or preferred methods of communication.
8. Termination
Either party may terminate this engagement at any time upon written notice to the other party. In the event of termination, the Company remains responsible for the payment of all professional fees earned and expenses incurred by the Firm through the date of termination, including any fees and expenses reflected on invoices that have not yet been issued as of the date of termination.
Upon termination or withdrawal, the Firm will take all reasonable steps necessary to protect the Company's interests, including, without limitation, providing reasonable notice and cooperating in the transition of the matter to successor counsel designated by the Company. The Firm's obligations upon termination are subject at all times to applicable professional responsibility rules, the California Rules of Professional Conduct, and any requirements imposed by a court or tribunal of competent jurisdiction. Termination of the engagement shall not affect the Company's obligation to pay amounts due under this engagement letter or the Firm's obligations of confidentiality as set forth in Section 5.
9. Limitation of Liability
To the fullest extent permitted by applicable law and the California Rules of Professional Conduct, the aggregate liability of the Firm, its partners, associates, employees, and agents, arising out of or relating to this engagement, whether based on contract, tort, negligence, strict liability, professional malpractice, or any other theory of liability, shall not exceed the total amount of professional fees actually paid by the Company to the Firm under this engagement letter for the specific matter giving rise to the claim. This limitation shall not apply in cases of willful misconduct or gross negligence on the part of the Firm.
In no event shall the Firm be liable to the Company for any consequential, indirect, incidental, special, or punitive damages of any kind, including, without limitation, loss of profits, loss of business opportunities, diminution in value, or any other economic damages that are not direct damages, regardless of whether the Firm has been advised of the possibility of such damages and regardless of the theory of liability. The foregoing limitations of liability shall survive the termination or conclusion of the engagement.
10. Governing Law
This engagement letter, and all rights and obligations of the parties hereunder, shall be governed by and construed in accordance with the laws of the State of California, without regard to the conflict of laws principles thereof that would require the application of the laws of any other jurisdiction. Any dispute arising out of or relating to this engagement letter or the Firm's representation of the Company hereunder shall be resolved exclusively in the state or federal courts located in the City and County of San Francisco, California, and each party hereby consents to the personal jurisdiction and venue of such courts.
11. Entire Agreement / Amendments
This engagement letter, together with the Firm's Standard Terms of Engagement enclosed herewith and incorporated herein by reference, constitutes the entire agreement between the Firm and the Company with respect to the engagement described herein and supersedes all prior and contemporaneous discussions, negotiations, proposals, understandings, and agreements, whether written or oral, relating to the subject matter hereof. In the event of any conflict between the terms of this engagement letter and the Standard Terms of Engagement, the terms of this engagement letter shall control.
No amendment, modification, supplement, or waiver of any provision of this engagement letter shall be effective unless set forth in a written instrument duly executed by authorized representatives of both the Firm and the Company. No failure or delay by either party in exercising any right or remedy hereunder shall operate as a waiver thereof.
We are enthusiastic about the opportunity to work with GenomeDx on this important transaction and are confident that our Capital Markets team is well positioned to provide the Company with the high-quality legal counsel it requires. We look forward to a productive and successful engagement.
If the foregoing terms are acceptable, please confirm your agreement by countersigning this letter in the space provided below and returning an executed copy to us at your earliest convenience. A duplicate original of this letter is enclosed for your records. Should you have any questions regarding the terms of this engagement letter or any other matter, please do not hesitate to contact me directly at (415) 392-7824 or tlangston@calderwoodharkness.com.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Theodore Langston
Title: Partner
Calderwood & Harkness LLP 600 California Street, 40th Floor San Francisco, California 94108
ACKNOWLEDGED AND AGREED
The undersigned, on behalf of Genome Dx Therapeutics Inc., hereby acknowledges receipt of this engagement letter, confirms acceptance of the terms and conditions set forth herein, and agrees to be bound thereby.
GENOME DX THERAPEUTICS INC.
By: ________
Name: Priya Raghunathan, J.D.
Title: General Counsel & Corporate Secretary
Genome Dx Therapeutics Inc. 450 Pinnacle Drive, Suite 300 South San Francisco, California 94080
Date: ________
Enclosure: Calderwood & Harkness LLP Standard Terms of Engagement (incorporated by reference)
cc: Dr. Marcus Avellino, Chief Executive Officer, Genome Dx Therapeutics Inc. Diane Kowalski, Chief Financial Officer, Genome Dx Therapeutics Inc. Vivienne St. Claire, Partner, Calderwood & Harkness LLP
CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED This engagement letter and the information contained herein are confidential and are intended solely for the use of the addressee. Any unauthorized review, use, disclosure, or distribution is prohibited.
Professional | Title | Hourly Rate
Theodore Langston | Partner | $1,150.00
Vivienne St. Claire | Partner | $1,150.00
Audrey Zhou | Lead Associate | $725.00
Brendan Walsh | Working Associate | $575.00

CALDERWOOD & HARKNESS LLP Attorneys at Law

VIA EMAIL AND HAND DELIVERY

CALDERWOOD & HARKNESS LLP

ACKNOWLEDGED AND AGREED

GENOME DX THERAPEUTICS INC.

Record

Parties

Dates

Amounts