IN RE: NAVIDEA BIOPHARMACEUTICALS LITIGATION

HOMP SON ATLANTA CLEVELAND DAYTON WASHINGTON, D.C. HINE CINCINNATI COLUMBUS NEW YORK March 2,200 MEMO ENDORSED Via ECF Honorable Valerie Caproni, U.S.D.J. USDC SDNY United States District Court DOCUMENT Southern District of New York ELECTRONICALLY FILED 40 Foley Square, Room 443 DOC #: New York, New York 10007 DATE FILED: 3/23/2020 RE: In re Navidea Biopharmaceuticals Litigation, Case No. 19-cv-01578—-VEC Dear Judge Caproni: We represent Navidea Biopharmaceuticals, Inc. (“Navidea’) and Macrophage Therapeutics, Inc. (“Macrophage”) (collectively, the “Plaintiffs”) in the above referenced matter. Per the Court’s endorsement of March 17, 2020 (ECF #100), we submit this letter motion requesting an Order permitting alternate service of process for a subpoena duces tecum and subpoena duces testificandum (collectively, the “Subpoenas”’) on Alec Goldberg (“Alec”), a proposed deponent. At the outset, we want to explain to the Court that Alec is not a stranger to this litigation. Specifically: (1) Alec was hired by his father, Defendant Dr. Michael M. Goldberg (“Dr. Goldberg’), and worked for Macrophage during the relevant time frame (Ex. A); (2) on February 20, 2019, the day that Dr. Goldberg was removed as CEO of Macrophage, Alec sent a “test” email from his Macrophage e-mail account to his Gmail account (Ex. B); (3) Alec was allegedly appointed to the board of Macrophage in November 2018 (Ex. C); and (4) Alec is a director of M1M2 Therapeutics, Inc. (“M1M2”), the entity involved in the transaction that is alleged by Navidea to be a breach of the August 14, 2018 agreement (Ex. D). Since early January 2020, Plaintiffs have made numerous attempts to personally serve Alec with the Subpoenas, requiring him to appear for a deposition and produce documents to Plaintiffs. (Exs. E-G). Plaintiffs, using a process server, performed a “skip trace” search on January 10, 2020, and have performed numerous searches on the internet for Alec, to no avail. Although the skip trace searches uncovered two (2) addresses for Alec, one of which is the address of Dr. Goldberg, Plaintiffs’ attempts to serve Alec at these addresses have been unsuccessful. (Exs. E-F). On January 13, 2020, Plaintiffs attempted to personally serve Alec at Dr. Goldberg’s address. (Ex. E). The process server was unable to serve Alec and was informed by Dr. Goldberg that Alec did not live at that address. (/d.). On January 15, 2020, a second attempt was made to serve the Subpoenas at Alec’s last known address identified through the Barry.Kazan@ThompsonHine.com Fax: 212.344.6101 Phone: 212.908.3921 baf 4840-1843-3435.1 THOMPSON HINE LLP 335 Madison Avenue www. [hompsonHine.com ATTORNEYS AT Law 12th Floor O: 212.344.5680 New York, New York 10017-4611 F: 212.344.6101 ‘THOMPSON ~ HINE Honorable Valerie E. Caproni March 20, 2020 Page 2 skip trace. (Ex. F). The process server attempted to serve the Subpoenas, but there was no response after his attempts to ring the doorbell. Ud.). Due to Plaintiffs inability to personally serve Alec or locate his residential address, on March 4, 2020, Plaintiffs filed a letter requesting the Court’s assistance in compelling Dr. Goldberg to disclose Alec’s address. (ECF #88). On the same day, the Court, by memo endorsement, held that a fact discovery extension would only be granted if Dr. Goldberg provided Plaintiffs with Alec’s current address and phone number, and certified as such. (ECF #90). On March 6, 2020, Dr. Goldberg’s counsel stated through an e-mail correspondence that 69 Thompson Street, New York, NY 10012 (“69 Thompson Street”) was Alec’s address and that he had no phone number. A third attempt was made to serve the Subpoenas at that address but there was no listing for Alec on any of the nameplates. (Ex. G). We e-mailed counsel for Dr. Goldberg as to whether they had an apartment number and received no response. Our process server attempted to call Alec on a number we believed to be his and received no response. Similarly, on March 12, 2020, we e-mailed him the Subpoenas at the personal Gmail address that he used for Macrophage business and received no response. District courts in this Circuit have noted that Fed. R. Civ. P. 45 “does not explicitly demand personal service of a subpoena, but instead requires only that a copy be ‘delivered’ to the person whose attendance or production of documents is sought. Such language ‘neither requires in-hand service nor prohibits alternative means of service.” Cordius Trust v. Kummerfeld, No. 99 Civ. 3200 (DLC), 1999 U.S. Dist. LEXIS 19980 , at *4-5 (S.D.N.Y. Dec. 29, 1999) (citation omitted); King v. Crown Plastering Corp., 170 F.R.D. 355 , 356 n.1 (E.D.N.Y. 1997) (any means of service in accordance with New York procedural law sufficient to satisfy Fed. R. Civ. P. 45 requirements). Plaintiffs have made three (3) attempts to serve Alec in person but have been unsuccessful. Because Dr. Goldberg has failed to provide a useful address for Alec (even though he has certified as such), it appears that either Alec is attempting to evade service or Dr. Goldberg is deliberately refusing to cooperate in securing his attendance at a deposition. “The [Fed. R. Civ. P.] should not be construed as a shield for a witness who is purposefully attempting to evade serve.” Cordius Trust, 1999 US Dist. LEXIS 19980, at *6. Accordingly, substitute service is appropriate. Substitute service is permitted where the means of service reasonably ensures actual receipt by the witness. See, e.g., Tube City IMS, LLC vy. Anza Capital Partners, LLC, No. 14 Civ. 1783 (PAE), 2014 U.S. Dist. LEXIS 160667 , at *3-4 (S.D.N.Y. Nov. 14, 2014); Med. Diagnostic Imaging, PLLC vy. Carecore Nat’l, LLC, No. 06 Civ. 7764 (CS) (THK), 2008 U.S. Dist. LEXIS 62376 , at *7-11 (S.D.N.Y. Aug. 15, 2008). As suggested by these authorities, THOMPSON HINE Honorable Valerie E. Caproni March 20, 2020 Page 3 alternative means of service satisfies the “delivery” requirement of Fed. R. Civ. P. 45. Cordius Trust, 1999 U.S. Dist. LEXIS 19980 , at *6. Courts have approved substitute service of subpoenas by certified mail and e-mail. See Tube City IMS, LLC, 2014 U.S. Dist. LEXIS 160667 , at *3-4 (granting motion to serve witness by attaching a copy of the subpoena to the witness’ door, mailing a copy to the witness’ residence by certified mail, and mailing and e-mailing a copy to the witness’ lawyer in a different matter); JPMorgan Chase Bank, N.A. v. IDW Grp., LLC, No. 08 Civ. 9116 (PGG), 2009 US Dist. LEXIS 39714, at *9 (S.D.N.Y. May 11, 2009) (granting plaintiff's request to serve a subpoena by multiple alternate means, including “remitting a copy of the deposition subpoena by electronic mail and certified mail to counsel” of the putative deponent); Cordius Trust, 1999 U.S. Dist. LEXIS 19980 , at *6-7 (granting motion to serve subpoena duces tecum by certified mail). Here, Plaintiffs propose to combine service of the Subpoenas by certified mail and by email. For service of the Subpoenas by certified mail, we propose to serve the Subpoenas to his former address (which is Dr. Goldberg’s residence), 69 Thompson Street (which was provided by Dr. Goldberg’s counsel), and at M1M2’s current company address detailed on its Certificate of Incorporation. (Ex. H). These methods are reasonably likely to ensure that Alec receives the Subpoenas. In light of the above, Plaintiffs respectfully request that the Court issue an Order authorizing substitute service of the Subpoenas on Alec Goldberg by (i) serving a copy of the Subpoenas at the following e-mail addresses: (a) alecmgoldberg@gmail.com and (b) goldberg.alec@ gmail.com; and (ii) sending, via certified mail, the original Subpoenas to the following addresses: (a) 69 Thompson Street, New York, NY 10012, (b) 207 Booth Avenue Englewood, NJ 07631; and (c) MIM2 Therapeutics, Inc., 2021 Arch Street, Philadelphia, PA 19103. Respectfully submitted, Application GRANTED. . The proposed method of substitute service is acceptable. /s/ Barry M. Kazan The fact discovery deadline is extended to June 17, 2020. Barry M. Kazan SO ORDERED. len □□ 3/23/2020 HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE Exhibit A From: Paul Poteat <paul.poteat@nebulas.co> Sent: Tuesday, December 18, 2018 11:32 AM To: Nebulas Support Subject: MAC | MGoldberg | Setup Alec Goldberg From: Michael Goldberg <MGoldberg@macrophagetx.com> Sent: Thursday, December 13, 2018 3:02 PM To: Paul Poteat <paul.poteat@nebulas.co> Subject: Re: Nothing from Microsoft yet? Thanks, I seem to be OK and did my IPAD and my laptop. Will try Iphone etc in a bit. Can you please set up a new email account for Alec Goldberg agoldberg@macrophagetx.com Thanks, Mike Michael M. Goldberg, M.D. Chairman & CEO MACROPHAGE THERAPEUTICS 560 Sylvan Ave, Third Floor | Englewood Cliffs, NJ 07632 Office: (201) 731-4023 | Cell: (917) 993-3533 mgoldberg@macrophagetx.com From: Paul Poteat <paul.poteat@nebulas.co> Date: Thursday, December 13, 2018 at 2:32 PM To: Michael Goldberg <MGoldberg@macrophagetx.com> Subject: RE: Nothing from Microsoft yet? https://www.fastsupport.com/600822541 From: Michael Goldberg <MGoldberg@macrophagetx.com> Sent: Thursday, December 13, 2018 2:16 PM To: Paul Poteat <paul.poteat@nebulas.co> Subject: Re: Nothing from Microsoft yet? My other machine is with my son should I get him on stand by to connect as well? Michael M. Goldberg, M.D. Chairman & CEO mgoldberg@macrophagetx.com From: Paul Poteat <paul.poteat@nebulas.co> Date: Thursday, December 13, 2018 at 2:14 PM To: Michael Goldberg <MGoldberg@macrophagetx.com> Subject: Re: Nothing from Microsoft yet? Ok. I’ll send you a link in a minute. Click on it from the first machine you to work on. Sent from my iPhone On Dec 13, 2018, at 2:08 PM, Michael Goldberg <MGoldberg@macrophagetx.com> wrote: My mac and my mac laptop Michael M. Goldberg, M.D. Chairman & CEO MACROPHAGE THERAPEUTICS 560 Sylvan Ave, Third Floor | Englewood Cliffs, NJ 07632 Office: (201) 731-4023 | Cell: (917) 993-3533 mgoldberg@macrophagetx.com From: Paul Poteat <paul.poteat@nebulas.co> Date: Thursday, December 13, 2018 at 2:07 PM To: Michael Goldberg <MGoldberg@macrophagetx.com> Subject: Re: Nothing from Microsoft yet? We can do that. Which machine(s) are we working on? Sent from my iPhone On Dec 13, 2018, at 2:05 PM, Michael Goldberg <MGoldberg@macrophagetx.com> wrote: Now? Michael M. Goldberg, M.D. Chairman & CEO MACROPHAGE THERAPEUTICS 560 Sylvan Ave, Third Floor | Englewood Cliffs, NJ 07632 Office: (201) 731-4023 | Cell: (917) 993-3533 mgoldberg@macrophagetx.com To: Michael Goldberg <MGoldberg@macrophagetx.com> Subject: Re: Nothing from Microsoft yet? I’m good in my end. I was waiting on you. Let me know a good time to connect. Sent from my iPhone On Dec 13, 2018, at 12:31 PM, Michael Goldberg <MGoldberg@macrophagetx.com> wrote: Michael M. Goldberg, M.D. Chairman & CEO MACROPHAGE THERAPEUTICS 560 Sylvan Ave, Third Floor | Englewood Cliffs, NJ 07632 Office: (201) 731-4023 | Cell: (917) 993-3533 mgoldberg@macrophagetx.com Exhibit B ZIZUIZUTS 0:02:40 FN Test Exhibit C Board Minutes Wednesday November 21, 2018 Telephonic M Goldberg (MMG), M Greene (MIG), Alec Goldberg (AG) joined as an observer until voted on to the BOD All parties waived written notice MMG then proposed that MT fill the open board seat at MT with Alec Goldberg voted, effective immediately, to add AG to MT’s board. Exhibit D M1M2 Therapeutics, Inc. Minutes of First Meeting of the Board of Directors for February 5, 2019 The first meeting of the board of directors named in the Certificate of Incorporation of M1M2 Therapeutics, Inc. was held on February 5, 2019. The following were present at meeting: Michael M. Goldberg, M.D. (Director) Alec Goldberg (Director) Agenda: (1) To vote on the appointment of Officers; (2) To review and approve all resolutions and other actions taken by Incorporator and others; (3) To review and approve the issuance of stock in accordance with the Certificate of Incorporation and a Resolution by the Shareholders. Business: 1. The meeting was called to order. It was determined that a quorum was present either in person or by proxy, and the meeting could conduct business. The following directors were present: Michael M. Goldberg, M.D Alec Goldberg 2. The Secretary determined and reported that notice of the meeting had been properly given or waived by the directors in accordance with the by-laws. All directors agreed that the proper notice had been given. 3. The following were presented at the meeting: (a) A copy of the Certificate of Incorporation; (b) A copy of the by-laws of the corporation adopted by the incorporator; (c) Resolutions of the incorporator; (d) Stock certificates; (e) The corporate record book 5. The directors ratified and approved all documents presented. 6. Upon motion duly made, second and unanimously carried, it was resolved that the following persons were appointed as officers: Michael M. Goldberg, M.D. as President and CEO Alec Goldberg as Treasurer and Secretary 7. Upon motion duly made, second and unanimously carried, it was resolved that the officers of this corporation are authorized and directed to pay all fees and expenses needed to the incorporator and other organizations for the organization of this corporation. 8. MT was issued 95 shares of common stock in consideration for entering into a Sub-Licensing Agreement with M1M2, effective February 5, 2019, which granted M1M2 an exclusive sub-license to therapeutic methods and products under such patents, patent applications, know-how, trade secrets and other proprietary rights, including the exclusive right to develop therapeutics with the technology (collectively “IP”). 9. Michael M. Goldberg, M.D., was issued 5 shares of Super Voting Common Stock (as defined in the Certificate of Incorporation) pursuant to a Resolution by the Shareholders in order to effectuate the Agreement of August 14, 2018, amongst Navidea Biopharmaceuticals, Inc. (“Navidea”), Macrophage Therapeutics, Inc. (“MT”) and Michael M. Goldberg, M.D. 10. Upon motion duly made, second and unanimously carried, it was resolved that the joint and individual acts of the incorporator(s) listed on the Certificate of Incorporation were taken on behalf of M1M2, and are approved, ratified and adopted as acts of M1M2. There was no further business, and upon motion duly made, seconded and unanimously carried, it was RESOLVED that all items and documents have been examined by all directors, and are approved and adopted, and that all actions taken thus far have been ratified and approved by the Directors of M1M2. There being no further business, upon motion duly made, seconded and unanimously carried, the meeting was adjourned. Dated: 2/5/19 By: i C _ Secretary of MIM2 Therapeutics, Inc. Witnesses: Dated: oo | By: ‘ _ Title: CCD } Dit 0 _ Dated: 2/5/19 whe Title: Secretary / Director □ Dated: By: Title: □□ Dated: By Title: os Exhibit E UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ATTORNEY: THOMPSON HINE LLP- NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 CIVIL ACTION #; 1:19-CV-01578-VEC IN RE NAVIDEA BIOPHARMACEUTICALS LIT IGATION, Job #: 1442422 AFFIDAVIT OF NON SERVICE STATE OF NEW YORK, COUNTY OF NASSAU, SS.: Manny Bayo, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in the State of New Jersey. That on 1/13/2020 at 7:30 PM., at 207 BOOTH AVENUE, ENGLEWOOD, NJ 07631 Deponent attempted to serve the within Subpoena to Produce Documents, information, or Objects or to Permit Inspection of Premises in a Civil Action, Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 42/1/13) With Exhibit A On ALEC GOLDBERG That diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein named without success for the reasons indicated below: | attempted service on 01/13/2020 @ 7:30 p.m. | was advised by the Subject's father that he does not live at said location. S\before me on ( \\ \30 HO □□□ Vuenr A AAV A . Tal sfagial NA BARTOLOTTA □□ State of New York □□ anny: Bayo No. O1BASSTI72D ates: itfled In Nassau Coun ad commisaion Expires con? Cour? Survorr, Inc., 18] Hitusipg AVENUE, WILLISTON Park, NY 11596 License #1382542 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ATTORNEY: THOMPSON HINE LLP- NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 CIVIL ACTION #: 1:19-CV-01578-VEC IN RE NAVIDEA BIOPHARMACEUTICALS LITIGATION, Job #: 1442421 AFFIDAVIT OF NON SERVICE STATE OF NEW YORK, COUNTY OF NASSAU, SS.: Manny Bayo, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in the State of New Jersey. That on 01/13/2020 at 7:30 PM., at 207 BOOTH AVENUE, ENGLEWOOD, NJ 07631 Deponent attempted to serve the within Subpoena to Testify at a Deposition in a Civil Action With A $60.18 Witness Fee Attached And Federal Rule of Civil Procedure 45 (c), (d), and (e), and (g) (Effective 12/1/13) On ALEC GOLDBERG That diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein named without success for the reasons indicated below: | attempted service on 01/13/2020 @ 7:30 p.m. | was advised by the Subject's father that he does not live at said location. j 17) \ rn fo before me o mh fh. \ i iar 4 j / \ | NA Neen tx fd) ka eli) ADRIANABARTOLOTIA es Notary Public, State of New York ni a M Bayo No, 01848377720 ere Qualified it Nassau County Gommlssion Expires 07/4 8120.5) ob Court Support, Inc., 181 HILLSIDE AVENUE, Wittiston Pars, NY 11596 License #1382542 Exhibit F UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW VORK ATTORNEY: THOMPSON BINE LLP. NEW YORK ADDRESS: 338 MADISON AVENUE, 127TH FLOOR NEW YORK, NY 10017 CIVIL ACTION #: 119-CV-01 578. VEC IN RE NAVIDEA BIOPHARMACEUTICALS LITIGATION, Job #: [44245 AFFIDAVIT OF NON SERVICE STATE OF NEW YORK, COUNTY OF NASSAU SS. Baldeo C. Drepaul, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in the State of New York. That on 01/16/2020 at 6:32 AM., at 229 E 21ST STREET. APT. 4 9, NEW YORK, NY 10010 DEPONENT ATTEMPTED TO SERVE THE WITHIN Subpoena to Produce Documents, information, or Objects or to Permit Inspection of Premises in a Civil Action, Federal Rule of Civil Procedure 48 (c), (d), (@), and (9) (Effective 12/143) With Exhibit A On ALEC GOLDBERG That diligent effort was made by deponent fo serve the within documentis} on the defendant(s)/respondent therein named without success for the reasons indicated below: | attempted service on 01/15/20 @ 6:32 a.m. There was no listing for the Subject. Henry Chetnik was listed on Apt 19. | rang the buzzer and there was no answer. Sworn io before oY 18/2020, bp / ie i se / oe □□□ 7 [ssevas OPEPAUL =~ [ale ck [=) f; EC “ ned Motary Sunilc, Siete yt New York gtd oh fe = é iO csmammie "ii cers were a eters Bede bs _ Baldeo €-Drepaul hae THEA License# 1450713 Couar Supeoey, inc, 18) Sacane dverve, Pacer Base, N¥ P7896 Lacwwee 982603 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ATTORNEY: THOMPSON HINE LLP-NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 CIVIL ACTION & b19-CV-O1S7S-VEC IN RE NAVIDEA BIOPHARMACEUTICALS LITIGATION, Job #: 1442840 AFFIDAVIT OF NON SERVICE STATE OF NEW YORK, COUNTY OF NASSAU SS. Baldeo C. Drepaul, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in the State of New York. That on 1/18/2020 at 6:32 AM., at 229 E 21ST STREET, APT. 19, NEW YORK, NY 10010 DEPONENT ATTEMPTED TO SERVE THE WITHIN Subpoena to Testify at a Deposition in a Civil Action With A $40.00 Witness Fee Attached And Federal Rule of Civil Procedure 46 (c), (d), and (e), and (g) (Effective On ALEC GOLDBERG diligent effort was made by deponent to serve the within document(s) on the defendant(s\/respondent therein named wilhout success for the reasons indicated below: | attempted service on 01/15/20 @ 6:32 a.m. There was no listing for the Subject. Henry Chetnik was listed on Apt, 19. the buzzer and there was no answer. Swom to before me on 1/1 52020 |. / ian is tf ting rae FIG: nck / Seana en a Ya aire RE □□□ Econ Couar Suerorr, Ive, [8] Hn.euoe Aves, Wauieriw Puan, NY 11596 Licensee 81982542 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ATTORNEY: THOMPSON HINE LLP. NEW VORK ADDRESS: 334 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 INDEX NUMBER: MACROPHAGE THERAPEUTICS, INC., a Delaware Corporation, Plainiff Job # 1442475 es MICHAEL M. GOLOBERG, M.D., eval, Originating Seam: Deleware, Originating Court: Chancery Court, Originating Case No, 201901978 □□□□□□□□□□□□□□□□□□□□□ snus tn nnn ni CRETE AFFIDAYTT OF NON SERVICE STATE OF NEW YORK, COUNTY OF NASSAU. 8S: C. Drepaul, being duly sworn, deposes and says: that ceponent is not 2 party to this action, is over 18 years of age and resides in the State of New York, That on 1/15/2020 at 6:32 AM., at 229 E 21ST STREET, APT. 19, NEW YORK, NY 10010 DEPONENT ATTEMPTED TO SERVE THE WITHIN Subposns Kuces Tecan and Ad Tastificnndue: (nurauant to the Un@orn interstate Depostion and Discovery Awt and OPLE § S108) With □ Foe of $93.00 WHR Attachment A and Originating State: Gelavene, Originating Court: Chancery Gast, Originating Gene No. SOS997 IRS Daces Tecut ard Ad Tuadiicencun Beth A On ALEC GOLDBERG That diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein named without success for the reasons indicated below: | attempted service on 01/15/20 @ 6:32 a.m. There was no listing for the Subject, Henry Chetnik was listed on Apt. 19. | rang the buzzer and there was no answer. to before me on 1/15/2020. ( ff j \, Bboy (/ ‘abi, Statapot 1 See WH Seg got cae Coetteata fied ee ie eae F ara Yo Ral d eo C.D eg) au Jenin □□□ “he C___-D€ATicense# 1450713 Cour Supporr, inc, £82 Nassar Avesue, Wiasrov Pare, N¥ 11896 License €)9924¢92 Exhibit G UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ATTORNEY: THOMPSON HINE LLP- NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 CIVIL ACTION #: [:19-CV-01578-VEC IN RE NAVIDEA BIOPHARMACEUTICALS LITIGATION, Job #: 1443559 AFFIDAVIT OF NON SERVICE OF NEW YORK, COUNTY OF NASSAU, SS.: C. Drepaul, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of and resides in the State of New York. on 03/10/2020 at 6:39 AM., at 69 THOMPSON STREET, NEW YORK, NY 10012 attempted to serve the within Subpoena to Produce Documents, Information, or Objects or to Permit of Premises in a Civil Action, Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 2/1/13) With Exhibit A ALEC GOLDBERG diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein without success for the reasons indicated below: service on 3/10/29 @ 6:39 am. There is na listing for the Subject on the building's directory. to before me on 03/10/20 enna (ler Le) —-f RRalied in Queene County” EE ae at > □□ lento Yo Coy Soe ne EO Drepaat fy Tat CA License# 2093579 COURT SUPPORT, INC, 181 HILLSIDE AVENUE, WILLISTON PARK, N¥ 11596 LICENSE #1382842 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ATTORNEY: THOMPSON HINE LLP- NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 CIVIL ACTION #: 1:19-CV-01578-VEC IN RE NAVIDEA BIOPHARMACEUTICALS LITIGATION, Job #: 1443560 AFFIDAVIT OF NON SERVICE OF NEW YORK, COUNTY OF NASSAU, SS:: C. Drepaul, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of and resides in the State of New York. on 3/10/2020 at 6:39 AM., at 69 THOMPSON STREET, NEW YORK, NY 10012 attempted to serve the within Subpoena to Testify at a Deposition in a Civil Action With A $40.00 Fee Attached And Federal Rule of Civil Procedure 46 (c), (d), and (e), and (g) (Effective 12/1/13), ALEC GOLDBERG hat diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein without success for the reasons indicated below: service on 3/10/29 @ 6:39 a.m. There is no listing for the Subject on the building's directory. to before me on aINaO SS oe □□□ rear eh NowOIDRGSI202" pc ot i Cenk oe conte ar county ty pee ET d. Ux enstnmmmnei Commission Evpres 1rse/2083" SE Baldeo C. Drépat ane ‘A License# 2093579 Court Support, INC, 181 HILSIDE AVENUE, WILLISTON Park, NY 11896 LICENSE #1382542 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ATTORNEY: THOMPSON HINE LLP- NEW YORK ADDRESS: 335 MADISON AVENUE, 12TH FLOOR NEW YORK, NY 10017 MACROPHAGE THERAPEUTICS, INC., a Delaware Corporation, Plaintiff Job #: 1443570 vs MICHAEL M. GOLDBERG, M.D., etal, Onginating State: Delaware, Originating Court: Chancery Court, Originating Case No. 2019-0137-JRS Defendant AFFIDAVIT OF NON SERVICE OF NEW YORK, COUNTY OF NASSAU, SS.: C. Drepaul, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of and resides in the State of New York. on 03/10/2020 at 6:39 AM., at 69 THOMPSON STREET, NEW YORK, NY 10012 attempted to serve the within Subpoena Duces Tecum and Ad Testificandum (purauant to the Uniform Interstate Deposition and Discovery Act and § 3418) With a Fee of $33.00 With Attachment A and Originating State: Delaware, Originating Court: Chancery Court, Originating Case No. 2019-0137-JR9 Subpoena Duces and Ad Testificandum With Exhibit A ALEC GOLDBERG hat diligent effort was made by deponent to serve the within document(s) on the defendant(s)/respondent therein without success for the reasons indicated below: service on 3/10/29 @ 6:39 a.m. There is no listing for the Subject on the building's directory. to before me on 03/10/2020 06 PRE, eee n Gusens Cary fee Rae “Eanes tase eae Baldeo C. Drepaul-——~ [ul > oa bel a - + License# 2093579 Court Support, INC, 181 HILLSIDE AVENVE, WILLISTON Park, NY 11596 LICENSE 382542 Exhibit H State of Delaware Secretary of State Division of Corporations Delivered 02:31 PM 02/04/2019 CERTIRICAT EOF INCORPORAT IO FILED 02:31 PM 02/04/2019 OF 20190708432 - FileNumber 7266825 MIM2 THERAPEUTICS, INC, I, the undersigned, for the purpose of creating and organizing a corporation under the provisions of and subject to the requirements of the General Corporation Law of the State of Delaware (the -DGCL"). certify as follows: ARTICLE ONE The name of the corporation is MIM2 Therapeutics, Inc. (the “Corporation”). ARTICLE TWO The address of the corporation's registered office in the State of Delaware is the 203 NE Front Street, Milford, County of Kent, 19963. The name of its registered agent at such address is Registered Office Service Company. ARTICLE THREE The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any jawtul act or activity for which corporations may be organized under the DGCL. ARTICLE FOUR 41 Authorized Shares. The total number of shares of capital stock which the Corporation has authority to issue is 100 shares, consisting of: (a) 95 shares of Common Stock, par value $.001 per share (the “Common Stock”); and (b) 3 shares of Super Voting Common Stock, par value $.001 per share (the “Super Voting Common Stock”). 42 Common Stock. (a) Subject to such voting rights of any other class or series of securities as may be granted from time to time pursuant to this certificate of incorporation, any amendment thereto, or . the provisions of the laws of the State of Delaware governing corporations. voting rights shall be vested exclusively in the holders of Common Stock as follows. Each holder of Common Stock shall have one (1) vote in respect of each share of such stock held. The Corporation will issue to Michael M. Goldberg, M.D., five (5) shares of Super Voting Common Stock (or 5.0% of the total outstanding shares of the Corporation). Except as otherwise required by law, the holders of Super Voting Common Stock shall be entitled to notice any stockholders’ meeting and to vote □□ a single class with holders of other classes of Common Stock upon any matter submitted to the stockholders for a vote. In that regard, each holder of Super Voting Common Stock shall have 20 votes for each full share of Common Stock into which the shares of Super Voting Common Stock would be convertible on the record date for the matter to be voted on. (b) Subject to the rights of any other class or series of stock, the holders of shares of Common Stock shall be entitled to receive, when and as declared by the board of directors, out of the assets of the Corporation legally available therefor, such dividends as may be declared from time to time by the board of directors. (c} Subject to such rights of any other class or series of securities as may be granted from time to time, the holders of shares of Common Stock shall be entitled to receive al! the assets of the Corporation available for distribution to shareholders in the event of the voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, ratably, in proportion to the number of shares of Common Stock held by them. Neither the merger or consolidation of the Corporation into or with any other corporation, nor the merger or consolidation of any other corporation into or with the Corporation, nor the sale, lease, exchange or other disposition (for cash, shares of stock, securities, or other consideration) of all or substantially all the assets of the Corporation, shall be deemed to be a dissolution, liquidation, or winding up, voluntary or involuntary, of the Corporation.. ARTICLE FIVE The name and mailing address of the incorporator of the Corporation is: Name Mailing □□ R. W. Worthington, Jr. 2021 Arch Street Philadelphia, PA 19103 ARTICLE SIX Untess and except to the extent that the Bylaws of the Corporation (the “Bylaws”) shall 50 require, the election of directors of the Corporation need not be by written ballot. Upon incorporation, including the filing of all required documents with the Department of State, the initial Board of Directors shall consist of the following: (1) Michael M. Goldberg, M.D.: and (2) Alec M. Goldberg. ARTICLE SEVEN To the fullest extent permitted by law, a director of the Corporation shall not be personally Hable to the Corporation or to its stockholders for monetary damages for any breach of fiduciary duty as a director. No amendment to, modification of or repeal of this paragraph seven shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment. ARTICLE EIGHT In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Bylaws or adopt new Bylaws without any action on the part of the stockholders; provided that any Bylaw adopted or amended by the Board of Directors, and any powers thereby conferred, may be amended. altered or repealed by the stockholders. ARTICLE NINE The Corporation shall have the right, subject to any express provisions or restrictions contained in the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) or the Bylaws, from time to time, to amend, alter or repeal any provision of the Certificate of Incorporation in any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a director or stockholder of the Corporation by the Certificate of Incorporation or any amendment thereof are conferred subject to such right. ARTICLE TEN Unless the Corporation consents in writing to the selection of an alternative forum, the Eastern District of Pennsylvania or Montgomery County Court of Common Pleas in the Commonwealth of Pennsylvania shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or the Bylaws or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein. 1, THE UNDERSIGNED, being the incorporator, for the purpose of forming a corporation pursuant to the DGCL, do make this Certificate of Incorporation, hereby acknowledging, declaring, and certifying that the foregoing Certificate of Incorporation is my act and deed and that the facts herein stated are true, and have accordingly hereunto set my hand this 4th day of February, 2019. Incorporator (Name} R. W. Worthington, Jr.