1008-00002 · Lumos Analytics Inc · Governance Documents

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WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC. IN LIEU OF A SPECIAL MEETING

Action by Written Consent of the Holders of a Majority of the Outstanding Voting Power

The undersigned stockholders of Lumos Analytics Inc., a Delaware corporation (the "Company"), acting pursuant to Section 228 of the Delaware General Corporation Law, as amended (the "DGCL"), and Article II, Section 2.11 of the Company's Amended and Restated Bylaws (which authorize any action required or permitted to be taken at any annual or special meeting of stockholders to be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted), hereby adopt the following resolutions and consent to the taking of the actions set forth herein. This Written Consent is effective as of the date of the last signature affixed hereto (the "Consent Date"); provided, however, that the actions approved herein shall become effective only upon the closing of the Company's initial public offering of shares of Class A Common Stock, par value $0.0001 per share (the "IPO"), as more particularly described below.

RECITALS

A. The Company. The Company is Lumos Analytics Inc., a corporation duly organized and existing under the laws of the State of Delaware. The Company was incorporated with the Secretary of State of the State of Delaware on March 14, 2016, under Delaware File Number 6281934. The Company's Employer Identification Number is 82-3194567. The Company's principal executive offices are located at 450 Folsom Street, Suite 1200, San Francisco, California 94105.

B. Existing Capitalization. The Company's Certificate of Incorporation, as currently in effect (including, without limitation, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series A Preferred Stock, dated October 7, 2016, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series B Preferred Stock, dated June 22, 2018, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series C Preferred Stock, dated January 15, 2020, and that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series D Preferred Stock, dated August 3, 2022, collectively, the "Existing Certificate"), authorizes the following capital stock of the Company:

(i) Common Stock. The Company is authorized to issue 500,000,000 shares of Common Stock, par value $0.0001 per share. As of the date hereof, 28,500,000 shares of Class B Common Stock are issued and outstanding, held by the Company's co-founders as follows: Priya Subramanian holds 16,500,000 shares of Class B Common Stock, and Marcus Henley holds 12,000,000 shares of Class B Common Stock.

(ii) Preferred Stock. The Company has issued and outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock, totaling 62,400,000 shares of Preferred Stock outstanding in the aggregate.

(iii) Employee Stock Option Pool. The Company has reserved 14,800,000 shares of Common Stock for issuance pursuant to the Company's 2016 Equity Incentive Plan, as amended (the "2016 Plan"), of which 11,300,000 shares are subject to outstanding stock options with a weighted-average exercise price of $4.82 per share.

(iv) Fully Diluted Capitalization. On a fully diluted basis (including all outstanding shares of Common Stock, all shares of Common Stock issuable upon conversion of all outstanding shares of Preferred Stock, and all shares of Common Stock issuable upon exercise of all outstanding stock options under the 2016 Plan), the Company has approximately 118,200,000 shares outstanding on a pre-IPO basis.

C. The Proposed IPO. The Board of Directors of the Company (the "Board") has approved and authorized the Company to pursue an initial public offering of its Class A Common Stock, par value $0.0001 per share (the "Class A Common Stock"), on the Nasdaq Global Select Market under the proposed ticker symbol "LMSA." In connection therewith, the Company has filed a Registration Statement on Form S-1 (SEC File Number 333-264518; Central Index Key ("CIK") 0001923847) with the United States Securities and Exchange Commission (the "SEC"), and amendments thereto, relating to the IPO. The IPO is expected to involve the following:

(i) Target gross proceeds of approximately $220,000,000, based on a preliminary price range of $16.00 to $18.00 per share of Class A Common Stock;

(ii) A primary offering by the Company of 12,941,176 shares of Class A Common Stock;

(iii) A secondary offering by certain selling stockholders of 3,500,000 shares of Class A Common Stock, consisting of 2,000,000 shares offered by Velthryn Venture Partners Fund IV, L.P. ("Velthryn") and 1,500,000 shares offered by Arclight Equity Group Fund VII, L.P. ("Arclight"), in each case consisting of shares of Class A Common Stock issuable upon the automatic conversion of shares of Preferred Stock in connection with the IPO;

(iv) An overallotment option granted to the underwriters to purchase up to 2,466,176 additional shares of Class A Common Stock (representing 15% of the total base shares of 16,441,176), exercisable within 30 days following the date of the final prospectus.

D. Board Recommendation. The Board, at duly convened meetings held on various dates and by unanimous written consent dated as of the date hereof, has (i) approved, adopted, and declared advisable the amendment and restatement of the Existing Certificate in the form of the Amended and Restated Certificate of Incorporation attached hereto as Exhibit A (the "Restated Certificate"), (ii) determined that the Restated Certificate and the transactions contemplated thereby are fair to and in the best interests of the Company and its stockholders, and (iii) recommended that the stockholders of the Company approve and adopt the Restated Certificate. The Restated Certificate is to become effective upon its filing with the Secretary of State of the State of Delaware, which filing shall occur immediately prior to or upon the closing of the IPO.

E. Stockholder Approval Requirement. Pursuant to Section 242 of the DGCL, any amendment to a corporation's certificate of incorporation requires the approval of the board of directors and the affirmative vote of the holders of a majority of the outstanding shares of stock entitled to vote thereon, and, if the amendment would alter or change the powers, preferences, or special rights of the shares of a particular class so as to affect them adversely, the holders of a majority of the outstanding shares of such class are also entitled to vote thereon as a separate class. The amendment and restatement of the Existing Certificate, as contemplated by the Restated Certificate, requires the approval of (i) the holders of a majority of the outstanding voting power of all shares of capital stock of the Company entitled to vote thereon, voting together as a single class, and (ii) the holders of a majority of the outstanding shares of each series of Preferred Stock, each voting as a separate class, to the extent required under the Existing Certificate or applicable law. Pursuant to Section 228 of the DGCL, any action required or permitted to be taken at any annual or special meeting of stockholders of a Delaware corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

F. Voting Power of Consenting Stockholders. The undersigned stockholders collectively hold shares of capital stock of the Company representing a majority of the total voting power of all outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, as follows:

The total voting power of all outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein is calculated as follows: 28,500,000 shares of Class B Common Stock entitled to 10 votes per share, for an aggregate of 285,000,000 votes, plus all outstanding shares of Preferred Stock entitled to vote on an as-converted basis at one vote per share (totaling 62,400,000 votes), for a total of approximately 347,400,000 votes (excluding, for the avoidance of doubt, shares of Common Stock issuable upon exercise of outstanding stock options that have not been exercised as of the date hereof). The 328,400,000 votes held by the undersigned consenting stockholders represent approximately 94.5% of such total voting power, which is well in excess of the majority vote required under Sections 228 and 242 of the DGCL. The undersigned stockholders also constitute the holders of a majority of the outstanding shares of each applicable class or series of capital stock entitled to vote as a separate class on any matter requiring such separate class vote.

NOW, THEREFORE, BE IT RESOLVED:

SECTION 1 — ADOPTION OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

1.1 Approval and Adoption.

RESOLVED, that the undersigned stockholders of the Company hereby approve, adopt, and consent to the Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. in the form attached hereto as Exhibit A (the "Restated Certificate"), which Restated Certificate shall amend and restate in its entirety the Existing Certificate (including all certificates of designation heretofore filed with respect to the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock), and that the Restated Certificate is hereby approved and adopted in all respects.

RESOLVED FURTHER, that the Restated Certificate shall become effective upon its filing with the Office of the Secretary of State of the State of Delaware, which filing shall occur immediately prior to or upon the closing of the IPO, at such date and time as determined by the Board or any duly authorized officer of the Company.

1.2 Summary of Principal Changes Effected by the Restated Certificate.

The following is a summary of the principal changes effected by the Restated Certificate. This summary is provided for informational and reference purposes only and is qualified in its entirety by reference to the full text of the Restated Certificate attached hereto as Exhibit A, which is incorporated herein by reference. In the event of any inconsistency between this summary and the Restated Certificate, the Restated Certificate shall control.

(a) Establishment of Dual-Class Common Stock Structure. The Restated Certificate establishes a dual-class common stock structure, creating two classes of Common Stock of the Company:

(i) Class A Common Stock. Class A Common Stock, par value $0.0001 per share, shall be entitled to one (1) vote per share on all matters submitted to a vote or for the consent of the stockholders of the Company. The Class A Common Stock shall be the class of Common Stock offered and sold to the public in the IPO, and all shares of Preferred Stock shall convert into shares of Class A Common Stock upon the closing of the IPO.

(ii) Class B Common Stock. Class B Common Stock, par value $0.0001 per share, shall be entitled to ten (10) votes per share on all matters submitted to a vote or for the consent of the stockholders of the Company. Except as otherwise required by applicable law or as set forth in the Restated Certificate, holders of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters. Each share of Class B Common Stock shall be convertible into one (1) share of Class A Common Stock at the option of the holder thereof at any time, and shall automatically convert into one (1) share of Class A Common Stock upon the occurrence of certain events specified in the Restated Certificate (as summarized in Section 1.2(b) below).

As of immediately following the closing of the IPO (and prior to the exercise of the overallotment option), the Class B Common Stock is expected to be held exclusively by the Company's co-founders, as follows:

• Priya Subramanian: 16,500,000 shares of Class B Common Stock

• Marcus Henley: 12,000,000 shares of Class B Common Stock

• Total Class B Common Stock: 28,500,000 shares

• Total Class B voting power: 285,000,000 votes

Following the closing of the IPO (assuming the sale of all shares offered in the primary and secondary offerings, and assuming no exercise of the overallotment option), the co-founders are expected to hold approximately 73.5% of the total voting power of the Company (calculated as 285,000,000 Class B votes divided by total estimated votes of approximately 387,641,176, consisting of 285,000,000 Class B votes plus approximately 102,641,176 Class A votes). This dual-class structure is intended to enable the co-founders to maintain effective voting control of the Company during the transition to a publicly traded company, while the Class A stockholders will have economic rights substantially equivalent to those of the Class B stockholders.

(b) Sunset Provision for Class B Common Stock. The Restated Certificate includes provisions for the automatic conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock on a one-for-one basis. Such automatic conversion shall occur upon the earliest to occur of the following events (each, a "Sunset Event"):

(i) Seven-Year Sunset. The seventh (7th) anniversary of the date of the closing of the IPO;

(ii) Transfer Trigger. Any transfer of shares of Class B Common Stock by a holder thereof to any person or entity that is not a "Permitted Transferee" (as defined in the Restated Certificate), it being understood that such automatic conversion shall apply only to the shares so transferred (and not to all outstanding shares of Class B Common Stock), unless the Restated Certificate provides otherwise with respect to such transfer;

(iii) Ownership Threshold Trigger. The date on which the co-founders of the Company (Priya Subramanian and Marcus Henley), together with their respective Permitted Transferees, collectively cease to beneficially own at least ten percent (10%) of the total number of shares of Common Stock of the Company then outstanding, calculated on an as-converted basis (treating all outstanding shares of Class B Common Stock as if converted into shares of Class A Common Stock for purposes of such calculation).

For purposes of the Restated Certificate, "Permitted Transferees" shall include, among others, (A) the other co-founder, (B) immediate family members of a co-founder, (C) trusts established for the benefit of a co-founder or his or her immediate family members, and (D) entities controlled by a co-founder, in each case subject to the conditions and restrictions set forth in the Restated Certificate.

Upon the occurrence of a Sunset Event described in clause (i) or clause (iii) above, all shares of Class B Common Stock then outstanding shall automatically and without further action convert into shares of Class A Common Stock on a one-for-one basis, and the dual-class structure shall terminate. Following such conversion, no further shares of Class B Common Stock shall be issued.

(i) Common Stock. A total of 500,000,000 shares of Common Stock, par value $0.0001 per share, consisting of shares of Class A Common Stock and shares of Class B Common Stock (with the aggregate number of authorized shares of Class A Common Stock and Class B Common Stock not to exceed 500,000,000 shares);

(ii) Preferred Stock. A total of 50,000,000 shares of undesignated "blank check" Preferred Stock, par value $0.0001 per share (the "Undesignated Preferred Stock"). The Board shall have the authority, without further approval of the stockholders (except as may be required by applicable law or the rules of the Nasdaq Global Select Market), to issue shares of Undesignated Preferred Stock from time to time in one or more series, and to fix by resolution or resolutions the designations, powers, preferences, rights, qualifications, limitations, and restrictions thereof, including the dividend rate, conversion rights, voting rights, redemption rights and price, liquidation preferences, and sinking fund terms of any such series.

(d) Elimination of Existing Preferred Stock Designations. Upon the closing of the IPO, all outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock (totaling, in the aggregate, 62,400,000 shares) shall automatically convert into shares of Class A Common Stock on a one-for-one basis, in accordance with the automatic conversion provisions set forth in the Existing Certificate and the respective certificates of designation for each series. Such conversion shall occur immediately prior to or simultaneously with the filing of the Restated Certificate with the Secretary of State of the State of Delaware.

Upon such conversion, the certificates of designation for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock shall be eliminated and shall have no further force or effect. All designations, powers, preferences, rights, qualifications, limitations, and restrictions previously established for such series of Preferred Stock shall be terminated in their entirety. No shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, or Series D Preferred Stock shall remain authorized or outstanding following the effectiveness of the Restated Certificate, and the shares theretofore designated as such series shall be returned to the status of authorized but unissued shares of Undesignated Preferred Stock (or, to the extent set forth in the Restated Certificate, shall be retired and shall not be reissued).

(e) Exculpation Provision. The Restated Certificate includes a provision, adopted pursuant to Section 102(b)(7) of the DGCL, that eliminates the personal liability of directors of the Company to the Company and its stockholders for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by the DGCL as it exists on the date the Restated Certificate becomes effective or as it may hereafter be amended. Such provision does not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Company or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends, stock purchases, or redemptions); or (iv) for any transaction from which the director derived an improper personal benefit.

(f) Forum Selection. The Restated Certificate designates the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the United States District Court for the District of Delaware, or, if such court also does not have jurisdiction, any other state court of the State of Delaware) as the sole and exclusive forum for the following types of actions or proceedings:

(i) any derivative action or proceeding brought on behalf of the Company;

(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, or agent of the Company to the Company or the Company's stockholders;

(iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Restated Certificate, or the Company's Amended and Restated Bylaws (as each may be amended from time to time); or

(iv) any action asserting a claim governed by the internal affairs doctrine.

The foregoing exclusive forum provision shall not apply to claims arising under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or any claim for which the federal courts have exclusive jurisdiction. Unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, to the extent permitted by applicable law.

(g) Other Provisions. The Restated Certificate also includes provisions relating to the following matters, among others:

(i) Classified Board of Directors. The Board shall be divided into three classes (Class I, Class II, and Class III), with each class serving staggered three-year terms, as more particularly described in the Restated Certificate. Directors may be removed only for cause and only by the affirmative vote of holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class.

(ii) Corporate Opportunity Waiver. To the extent permitted under Section 122(17) of the DGCL, the Restated Certificate contains a corporate opportunity waiver with respect to certain stockholders and their respective affiliates (including Velthryn Venture Partners Fund IV, L.P. and Arclight Equity Group Fund VII, L.P. and any of their respective affiliated funds or portfolio companies), to the extent set forth therein, such that neither the Company nor any stockholder shall have any right or expectancy in or to any business opportunity that comes to the attention of any such person, except as expressly provided in the Restated Certificate.

(iii) Amendments to Certificate and Bylaws. The Restated Certificate includes provisions requiring the affirmative vote of holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock entitled to vote generally in the election of directors to amend or repeal certain provisions of the Restated Certificate and the Amended and Restated Bylaws.

(iv) Consistency with Bylaws. The Restated Certificate is consistent with, and complementary to, the Company's Amended and Restated Bylaws adopted by the Board in connection with the IPO.

SECTION 2 — AUTHORIZATION OF OFFICERS TO FILE

2.1 Filing with Secretary of State.

RESOLVED, that the undersigned stockholders hereby authorize and direct the officers of the Company, including Priya Subramanian, Chief Executive Officer, and Naomi Feinberg, General Counsel and Corporate Secretary, and each of them, acting singly and with full power of substitution, to execute, verify, acknowledge, and file the Restated Certificate with the Office of the Secretary of State of the State of Delaware at such time as the Board or any duly authorized officer of the Company determines is appropriate, which shall be immediately prior to or upon the closing of the IPO. The officers of the Company are further authorized to make such changes to the Restated Certificate as may be required or requested by the Office of the Secretary of State of the State of Delaware in order to effect such filing, provided that such changes do not materially alter the substance of the Restated Certificate as approved hereby.

2.2 Ancillary Actions.

RESOLVED FURTHER, that the officers of the Company, including the Chief Executive Officer, the Chief Financial Officer, the General Counsel and Corporate Secretary, and each of them, acting singly and with full power of substitution, are hereby authorized, empowered, and directed, in the name and on behalf of the Company, to take any and all actions and to execute, deliver, and file any and all documents, agreements, instruments, and certificates as they may deem necessary, appropriate, or advisable to carry out the purposes and intent of this Written Consent and the resolutions adopted hereby, including, without limitation, (a) filings with any federal, state, or local governmental authority, (b) filings with the SEC, (c) filings with the Nasdaq Global Select Market, (d) issuance of new stock certificates or book-entry positions reflecting the conversion of Preferred Stock into Class A Common Stock, and (e) any other actions necessary to effectuate the Restated Certificate and the transactions contemplated thereby, the execution, delivery, or filing of any such document or the taking of any such action to be conclusive evidence of the authority of such officer to act and of the approval of the action so taken.

SECTION 3 — ADDITIONAL APPROVALS

3.1 Conversion of Preferred Stock.

RESOLVED, that the undersigned stockholders (including the holders of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock, as applicable) hereby confirm their consent to the automatic conversion of all outstanding shares of Preferred Stock of the Company into shares of Class A Common Stock, par value $0.0001 per share, on a one-for-one basis, immediately upon the closing of the IPO, in accordance with the terms and conditions of the Existing Certificate (including the applicable certificates of designation for each series of Preferred Stock) and the Restated Certificate. The undersigned holders of Preferred Stock hereby waive any right to elect not to convert, to the extent any such right exists, and confirm that no anti-dilution adjustments, additional consideration, or other conditions precedent to such conversion remain unsatisfied as of the date hereof (other than the closing of the IPO itself).

3.2 Increase in Authorized Shares.

RESOLVED, that to the extent the Restated Certificate effects any increase in the total number of authorized shares of capital stock of the Company (including, without limitation, the authorization of 50,000,000 shares of undesignated Preferred Stock), the undersigned stockholders hereby approve and consent to such increase in authorized shares in all respects, and confirm that such increase is in the best interests of the Company and its stockholders.

SECTION 4 — GENERAL PROVISIONS

4.1 Effectiveness. This Written Consent shall be effective as of the Consent Date (being the date of the last signature affixed hereto by the undersigned stockholders); provided, however, that the actions approved hereby, including, without limitation, the filing of the Restated Certificate with the Secretary of State of the State of Delaware, shall be conditioned upon and shall not become effective until the closing of the IPO. In the event the IPO is not consummated for any reason, including, without limitation, the withdrawal of the Registration Statement on Form S-1, the failure of the SEC to declare such Registration Statement effective, or the termination of the underwriting agreement prior to the closing of the IPO, then this Written Consent and all actions approved hereby shall automatically and without further action of the undersigned stockholders be deemed null and void and of no further force or effect, and the Existing Certificate shall remain in full force and effect as if this Written Consent had not been executed and delivered.

4.2 Revocability. This Written Consent may be revoked by any undersigned stockholder at any time prior to the effectiveness of the actions approved hereby (i.e., prior to the closing of the IPO), by delivering a written notice of revocation to the Corporate Secretary of the Company at the Company's principal executive offices at the following address:

Lumos Analytics Inc.

Attn: Naomi Feinberg, General Counsel and Corporate Secretary

450 Folsom Street, Suite 1200 San Francisco, California 94105

Any such written notice of revocation must be signed by the revoking stockholder and must identify the shares with respect to which the consent is being revoked. Any revocation shall be effective upon receipt by the Corporate Secretary of the Company. For the avoidance of doubt, any revocation by a stockholder whose consent is necessary for the undersigned stockholders collectively to hold a majority of the total voting power required to approve the actions set forth herein shall render this Written Consent ineffective with respect to all actions requiring such majority vote, unless and until a replacement consent is obtained from a stockholder or stockholders holding sufficient voting power.

4.3 Counterparts. This Written Consent may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Written Consent by electronic transmission, including by facsimile, electronic mail in portable document format (.pdf), or any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall be as effective as delivery of a manually executed counterpart.

4.4 Governing Law.

This Written Consent shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

4.5 Notice to Non-Consenting Stockholders.

In accordance with Section 228(e) of the DGCL, prompt notice of the taking of the corporate action approved by this Written Consent without a meeting shall be given to those stockholders of the Company who have not consented in writing hereto and who, if the action had been taken at a meeting, would have been entitled to notice of such meeting if the record date for notice of such meeting had been the date that the written consents signed by a sufficient number of holders to take the action were delivered to the Company. The Corporate Secretary of the Company is hereby authorized and directed to provide such notice in compliance with applicable law.

SIGNATURE PAGES

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SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in her capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.

Shares Held: 16,500,000 shares of Class B Common Stock

Voting Power: 165,000,000 votes (10 votes per share)

PRIYA SUBRAMANIAN

By: ________

Name: Priya Subramanian

Date: ________

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in his capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.

Shares Held: 12,000,000 shares of Class B Common Stock

Voting Power: 120,000,000 votes (10 votes per share)

MARCUS HENLEY

By: ________

Name: Marcus Henley

Date: ________

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in its capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.

Shares Held: 24,800,000 shares of Series C Preferred Stock and Series D Preferred Stock (combined)

Voting Power: 24,800,000 votes (one vote per share on an as-converted basis)

Address: 2100 Sand Hill Road, Suite 300, Menlo Park, California 94025

VELTHRYN VENTURE PARTNERS FUND IV, L.P.

By: Velthryn Venture Partners Management IV, LLC,

its General Partner

By: ________

Name: Jonathan Tsai

Title: Managing Partner

Date: ________

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in its capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.

Shares Held: 18,600,000 shares of Series B Preferred Stock and Series C Preferred Stock (combined)

Voting Power: 18,600,000 votes (one vote per share on an as-converted basis)

Address: 780 Third Avenue, 22nd Floor, New York, New York 10017

ARCLIGHT EQUITY GROUP FUND VII, L.P.

By: Arclight Equity Management VII, LLC,

its General Partner

By: ________

Name: Rebecca Stahl

Title: Partner

Date: ________

EXHIBIT A

FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.

(To be filed with the Secretary of State of the State of Delaware immediately prior to or upon the closing of the IPO)

The full text of the Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. (the "Restated Certificate"), in the form approved by the Board of Directors and drafted by Calderwood & Harkness LLP (C&H Matter Number 1008-00002), is set forth on the pages that follow. This Exhibit A is the form of the Restated Certificate previously approved by the Board of Directors and is incorporated by reference into the Written Consent of Stockholders to which it is attached. In the event of any inconsistency between the summary set forth in Section 1.2 of the Written Consent and the provisions of this Exhibit A, the provisions of this Exhibit A shall control.

Cross-Reference: This document corresponds to the separately prepared and circulated document titled "Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. (IPO Form)," Calderwood & Harkness LLP reference number 1008-00002, as most recently revised.

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.

(Originally incorporated on March 14, 2016, under the name "Lumos Analytics Inc.")

Lumos Analytics Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows:

FIRST: The name of the Corporation is Lumos Analytics Inc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 14, 2016, under Delaware File Number 6281934.

SECOND: This Amended and Restated Certificate of Incorporation (this "Restated Certificate") amends, restates, and integrates the provisions of the Certificate of Incorporation of the Corporation, as heretofore amended and supplemented (including all certificates of designation heretofore filed), and has been duly adopted in accordance with Sections 228, 242, and 245 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"), and by the written consent of the holders of the outstanding stock of the Corporation in accordance with Section 228 of the DGCL.

THIRD: The text of the Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:

ARTICLE I — NAME

The name of the Corporation is Lumos Analytics Inc.

ARTICLE II — REGISTERED OFFICE AND AGENT

The address of the registered office of the Corporation in the State of Delaware is 850 New Burton Road, Suite 201, Dover, Delaware 19904, County of Kent, and the name of its registered agent at such address is Capitol Registered Agents LLC.

ARTICLE III — PURPOSE AND DURATION

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The duration of the Corporation shall be perpetual.

ARTICLE IV — AUTHORIZED CAPITAL STOCK

Section 4.1 Authorized Shares. The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 550,000,000 shares, consisting of:

(a) 500,000,000 shares of Common Stock, par value $0.0001 per share (the "Common Stock"), of which:

(i) 471,500,000 shares are designated as "Class A Common Stock" (the "Class A Common Stock"); and

(ii) 28,500,000 shares are designated as "Class B Common Stock" (the "Class B Common Stock"); and

(b) 50,000,000 shares of Preferred Stock, par value $0.0001 per share (the "Preferred Stock").

Section 4.2 Preferred Stock. The Board of Directors of the Corporation (the "Board") is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designations, powers, preferences, rights, qualifications, limitations, and restrictions thereof, including, without limitation, the authority to fix the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any such series, and to increase or decrease the number of shares of any such series (but not below the number of shares of such series then outstanding). The powers, preferences, rights, qualifications, limitations, and restrictions of different series of Preferred Stock may differ with respect to dividend rates, amounts of dividends, redemption provisions and prices, the amount payable on voluntary or involuntary liquidation, conversion rights, sinking fund requirements, voting rights, and other matters.

ARTICLE V — VOTING RIGHTS

Section 5.1 Voting Rights of Common Stock. Except as otherwise required by applicable law or as set forth in this Restated Certificate:

(a) Each holder of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common Stock held of record by such holder on all matters submitted to a vote or for the consent of the stockholders of the Corporation.

(b) Each holder of Class B Common Stock shall be entitled to ten (10) votes for each share of Class B Common Stock held of record by such holder on all matters submitted to a vote or for the consent of the stockholders of the Corporation.

(c) Except as otherwise required by applicable law or this Restated Certificate, the holders of shares of Class A Common Stock and Class B Common Stock shall vote together as a single class (and, when so voting, shall be counted and tabulated together) on all matters submitted to a vote or for the consent of the stockholders of the Corporation.

Section 5.2 Equal Economic Rights. Except with respect to voting rights and conversion rights as expressly set forth herein, each share of Class A Common Stock and each share of Class B Common Stock shall have the same rights, powers, and privileges, and shall rank equally, share ratably, and be identical in all respects and as to all matters, including, without limitation, with respect to dividends, distributions, stock splits, combinations, mergers, consolidations, and rights upon liquidation, dissolution, or winding up of the Corporation.

ARTICLE VI — CONVERSION OF CLASS B COMMON STOCK; SUNSET PROVISIONS

Section 6.1 Optional Conversion. Each share of Class B Common Stock shall be convertible into one (1) fully paid and nonassessable share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the Corporation.

Section 6.2 Automatic Conversion — Sunset Events. Each share of Class B Common Stock shall automatically, without any further action on the part of the holder thereof, be converted into one (1) fully paid and nonassessable share of Class A Common Stock upon the earliest to occur of the following events (each, a "Sunset Event"):

(a) Seven-Year Sunset. The seventh (7th) anniversary of the date of the closing of the Corporation's first firm commitment underwritten initial public offering of shares of Class A Common Stock pursuant to an effective registration statement filed under the Securities Act of 1933, as amended;

(b) Transfer Trigger. With respect to any share of Class B Common Stock, any Transfer (as defined below) of such share to any person or entity that is not a Permitted Transferee (as defined below) of the holder thereof; provided that such automatic conversion shall apply only to the shares so Transferred (and not to all outstanding shares of Class B Common Stock held by such holder or any other holder) unless otherwise specified herein; and

(c) Ownership Threshold Trigger. The first date on which the Founder Holders (as defined below), together with their respective Permitted Transferees, collectively cease to beneficially own (as such term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) at least ten percent (10%) of the total number of shares of Common Stock of the Corporation then outstanding, calculated on an as-converted basis (treating all outstanding shares of Class B Common Stock as if converted into shares of Class A Common Stock for purposes of such calculation).

Section 6.3 Definitions. For purposes of this Article VI:

(a) "Founder Holders" means Priya Subramanian and Marcus Henley.

(b) "Permitted Transferee" means, with respect to any Founder Holder: (i) the other Founder Holder; (ii) a member of such Founder Holder's Immediate Family; (iii) a trust for the benefit of such Founder Holder or any member of such Founder Holder's Immediate Family, provided that such Founder Holder or a member of such Founder Holder's Immediate Family serves as trustee thereof; (iv) a limited liability company, partnership, or other entity that is wholly owned by, and exclusively controlled by, such Founder Holder and/or members of such Founder Holder's Immediate Family; and (v) such other persons or entities as may be approved by the Board as a Permitted Transferee; provided, in each case, that such Permitted Transferee agrees in writing to be bound by the provisions of this Article VI.

(c) "Immediate Family" means, with respect to any natural person, such person's spouse, domestic partner, parents, grandparents, lineal descendants (including adopted children and stepchildren), and siblings.

(d) "Transfer" means any sale, assignment, transfer, conveyance, hypothecation, or other transfer or disposition of such share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, including, without limitation, a transfer of a share of Class B Common Stock to a broker or other nominee (regardless of whether there is a corresponding change in beneficial ownership), or the transfer of, or entering into a binding agreement with respect to, voting power (including by proxy, voting agreement, or otherwise) with respect to such share.

Section 6.4 Procedures. The Corporation shall provide written notice to the holders of Class B Common Stock of any Sunset Event (to the extent known to the Corporation) promptly following the occurrence thereof. Upon the conversion of any shares of Class B Common Stock into shares of Class A Common Stock pursuant to this Article VI, the Corporation shall take all actions necessary to effect such conversion, including the cancellation of the applicable shares of Class B Common Stock and the issuance of the corresponding shares of Class A Common Stock.

Section 6.5 No Further Issuance. Following the conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock pursuant to Section 6.2(a) or Section 6.2(c) above, no further shares of Class B Common Stock shall be issued by the Corporation.

ARTICLE VII — CONVERSION OF PREFERRED STOCK UPON IPO

Section 7.1 Automatic Conversion. Upon the closing of the Corporation's first firm commitment underwritten initial public offering of shares of Class A Common Stock pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, all outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock (totaling, in the aggregate, 62,400,000 shares) shall automatically be converted into fully paid and nonassessable shares of Class A Common Stock, at a conversion ratio of one (1) share of Class A Common Stock for each share of Preferred Stock so converted (subject to any adjustments for stock splits, stock dividends, recapitalizations, or the like occurring prior to such conversion).

Section 7.2 Elimination of Preferred Stock Designations. Upon the effectiveness of the conversions described in Section 7.1, the certificates of designation for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock previously filed with the Secretary of State of the State of Delaware shall be eliminated and shall have no further force or effect. All designations, powers, preferences, rights, qualifications, limitations, and restrictions previously established for such series of Preferred Stock shall be terminated in their entirety. The shares previously designated as Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock shall be retired and shall not be reissued as shares of such series. Such retired shares shall resume the status of authorized but unissued shares of Preferred Stock, undesignated as to series, and may be redesignated and reissued by the Board pursuant to the authority granted in Article IV hereof.

ARTICLE VIII — LIMITATION OF LIABILITY

Section 8.1 Exculpation. To the fullest extent permitted by the DGCL as it exists on the date this Restated Certificate becomes effective or as it may hereafter be amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the effective date of this Restated Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

Section 8.2 Savings Clause. Neither any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Restated Certificate inconsistent with this Article VIII, shall eliminate, reduce, or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such amendment, repeal, or adoption with respect to any act or omission occurring prior to such amendment, repeal, or adoption.

ARTICLE IX — FORUM SELECTION

Section 9.1 Delaware Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, the United States District Court for the District of Delaware, or, if such federal court also does not have jurisdiction, any state court located in the State of Delaware) shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, this Restated Certificate, or the Bylaws of the Corporation (as each may be amended from time to time), or (d) any action asserting a claim governed by the internal affairs doctrine. The provisions of this Section 9.1 shall not apply to any action arising under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or any claim for which the federal courts have exclusive jurisdiction.

Section 9.2 Federal Forum for Securities Act Claims. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, to the fullest extent permitted by applicable law.

Section 9.3 Consent to Jurisdiction. Any person or entity purchasing or otherwise acquiring or holding any interest in any security of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IX.

ARTICLE X — AMENDMENT

Section 10.1 Amendment of Certificate. The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Articles V, VI, VIII, IX, X, and XI of this Restated Certificate may not be repealed or amended in any respect, and no provision inconsistent therewith may be adopted, unless such action is approved by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

Section 10.2 Amendment of Bylaws. In furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation. The stockholders shall also have the power to adopt, amend, alter, or repeal the Bylaws of the Corporation; provided, however, that in addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law, this Restated Certificate, or the Bylaws of the Corporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, or repeal any provision of the Bylaws of the Corporation or to adopt any new bylaw.

ARTICLE XI — CORPORATE OPPORTUNITIES

To the extent permitted by Section 122(17) of the DGCL, the Corporation hereby renounces any interest or expectancy in, or being offered an opportunity to participate in, any business opportunity that may from time to time be presented to or come to the attention of any of the stockholders of the Corporation or any of their respective officers, directors, agents, shareholders, members, partners, affiliates, and subsidiaries (other than the Corporation and its subsidiaries), including, without limitation, Velthryn Venture Partners Fund IV, L.P. and Arclight Equity Group Fund VII, L.P. and any of their respective affiliated investment funds, portfolio companies, partners, members, directors, officers, employees, or agents (collectively, the "Exempted Persons"), even if such opportunity is one that the Corporation might reasonably have pursued or had the ability or desire to pursue if granted the opportunity to do so. No Exempted Person shall have any duty to communicate or offer such business opportunity to the Corporation or be liable to the Corporation or any of its stockholders for breach of any fiduciary or other duty, as a director, officer, or stockholder of the Corporation or otherwise, by reason of the fact that such Exempted Person pursues or acquires such business opportunity, directs such business opportunity to another person or entity, or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation. The foregoing provisions of this Article XI shall not apply to any business opportunity that is expressly offered to a director of the Corporation solely in his or her capacity as a director of the Corporation.

IN WITNESS WHEREOF, Lumos Analytics Inc. has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on this _ day of ___, 20_.

LUMOS ANALYTICS INC.

By: ________

Name: Priya Subramanian

Title: Chief Executive Officer

End of Exhibit A — Form of Amended and Restated Certificate of Incorporation of Lumos Analytics Inc.

Stockholder	Shares Held	Class/Series	Votes per Share	Total Votes
Priya Subramanian	16,500,000	Class B Common Stock	10	165,000,000
Marcus Henley	12,000,000	Class B Common Stock	10	120,000,000
Velthryn Venture Partners Fund IV, L.P.	24,800,000	Series C & Series D Preferred Stock	1 (as-converted)	24,800,000
Arclight Equity Group Fund VII, L.P.	18,600,000	Series B & Series C Preferred Stock	1 (as-converted)	18,600,000
Total	71,900,000	328,400,000

WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC. IN LIEU OF A SPECIAL MEETING
Action by Written Consent of the Holders of a Majority of the Outstanding Voting Power
The undersigned stockholders of Lumos Analytics Inc., a Delaware corporation (the "Company"), acting pursuant to Section 228 of the Delaware General Corporation Law, as amended (the "DGCL"), and Article II, Section 2.11 of the Company's Amended and Restated Bylaws (which authorize any action required or permitted to be taken at any annual or special meeting of stockholders to be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted), hereby adopt the following resolutions and consent to the taking of the actions set forth herein. This Written Consent is effective as of the date of the last signature affixed hereto (the "Consent Date"); provided, however, that the actions approved herein shall become effective only upon the closing of the Company's initial public offering of shares of Class A Common Stock, par value $0.0001 per share (the "IPO"), as more particularly described below.
RECITALS
A. The Company. The Company is Lumos Analytics Inc., a corporation duly organized and existing under the laws of the State of Delaware. The Company was incorporated with the Secretary of State of the State of Delaware on March 14, 2016, under Delaware File Number 6281934. The Company's Employer Identification Number is 82-3194567. The Company's principal executive offices are located at 450 Folsom Street, Suite 1200, San Francisco, California 94105.
B. Existing Capitalization. The Company's Certificate of Incorporation, as currently in effect (including, without limitation, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series A Preferred Stock, dated October 7, 2016, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series B Preferred Stock, dated June 22, 2018, that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series C Preferred Stock, dated January 15, 2020, and that certain Certificate of Designation of the Preferences, Rights, and Limitations of the Series D Preferred Stock, dated August 3, 2022, collectively, the "Existing Certificate"), authorizes the following capital stock of the Company:
(i) Common Stock. The Company is authorized to issue 500,000,000 shares of Common Stock, par value $0.0001 per share. As of the date hereof, 28,500,000 shares of Class B Common Stock are issued and outstanding, held by the Company's co-founders as follows: Priya Subramanian holds 16,500,000 shares of Class B Common Stock, and Marcus Henley holds 12,000,000 shares of Class B Common Stock.
(ii) Preferred Stock. The Company has issued and outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock, totaling 62,400,000 shares of Preferred Stock outstanding in the aggregate.
(iii) Employee Stock Option Pool. The Company has reserved 14,800,000 shares of Common Stock for issuance pursuant to the Company's 2016 Equity Incentive Plan, as amended (the "2016 Plan"), of which 11,300,000 shares are subject to outstanding stock options with a weighted-average exercise price of $4.82 per share.
(iv) Fully Diluted Capitalization. On a fully diluted basis (including all outstanding shares of Common Stock, all shares of Common Stock issuable upon conversion of all outstanding shares of Preferred Stock, and all shares of Common Stock issuable upon exercise of all outstanding stock options under the 2016 Plan), the Company has approximately 118,200,000 shares outstanding on a pre-IPO basis.
C. The Proposed IPO. The Board of Directors of the Company (the "Board") has approved and authorized the Company to pursue an initial public offering of its Class A Common Stock, par value $0.0001 per share (the "Class A Common Stock"), on the Nasdaq Global Select Market under the proposed ticker symbol "LMSA." In connection therewith, the Company has filed a Registration Statement on Form S-1 (SEC File Number 333-264518; Central Index Key ("CIK") 0001923847) with the United States Securities and Exchange Commission (the "SEC"), and amendments thereto, relating to the IPO. The IPO is expected to involve the following:
(i) Target gross proceeds of approximately $220,000,000, based on a preliminary price range of $16.00 to $18.00 per share of Class A Common Stock;
(ii) A primary offering by the Company of 12,941,176 shares of Class A Common Stock;
(iii) A secondary offering by certain selling stockholders of 3,500,000 shares of Class A Common Stock, consisting of 2,000,000 shares offered by Velthryn Venture Partners Fund IV, L.P. ("Velthryn") and 1,500,000 shares offered by Arclight Equity Group Fund VII, L.P. ("Arclight"), in each case consisting of shares of Class A Common Stock issuable upon the automatic conversion of shares of Preferred Stock in connection with the IPO;
(iv) An overallotment option granted to the underwriters to purchase up to 2,466,176 additional shares of Class A Common Stock (representing 15% of the total base shares of 16,441,176), exercisable within 30 days following the date of the final prospectus.
D. Board Recommendation. The Board, at duly convened meetings held on various dates and by unanimous written consent dated as of the date hereof, has (i) approved, adopted, and declared advisable the amendment and restatement of the Existing Certificate in the form of the Amended and Restated Certificate of Incorporation attached hereto as Exhibit A (the "Restated Certificate"), (ii) determined that the Restated Certificate and the transactions contemplated thereby are fair to and in the best interests of the Company and its stockholders, and (iii) recommended that the stockholders of the Company approve and adopt the Restated Certificate. The Restated Certificate is to become effective upon its filing with the Secretary of State of the State of Delaware, which filing shall occur immediately prior to or upon the closing of the IPO.
E. Stockholder Approval Requirement. Pursuant to Section 242 of the DGCL, any amendment to a corporation's certificate of incorporation requires the approval of the board of directors and the affirmative vote of the holders of a majority of the outstanding shares of stock entitled to vote thereon, and, if the amendment would alter or change the powers, preferences, or special rights of the shares of a particular class so as to affect them adversely, the holders of a majority of the outstanding shares of such class are also entitled to vote thereon as a separate class. The amendment and restatement of the Existing Certificate, as contemplated by the Restated Certificate, requires the approval of (i) the holders of a majority of the outstanding voting power of all shares of capital stock of the Company entitled to vote thereon, voting together as a single class, and (ii) the holders of a majority of the outstanding shares of each series of Preferred Stock, each voting as a separate class, to the extent required under the Existing Certificate or applicable law. Pursuant to Section 228 of the DGCL, any action required or permitted to be taken at any annual or special meeting of stockholders of a Delaware corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
F. Voting Power of Consenting Stockholders. The undersigned stockholders collectively hold shares of capital stock of the Company representing a majority of the total voting power of all outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, as follows:
The total voting power of all outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein is calculated as follows: 28,500,000 shares of Class B Common Stock entitled to 10 votes per share, for an aggregate of 285,000,000 votes, plus all outstanding shares of Preferred Stock entitled to vote on an as-converted basis at one vote per share (totaling 62,400,000 votes), for a total of approximately 347,400,000 votes (excluding, for the avoidance of doubt, shares of Common Stock issuable upon exercise of outstanding stock options that have not been exercised as of the date hereof). The 328,400,000 votes held by the undersigned consenting stockholders represent approximately 94.5% of such total voting power, which is well in excess of the majority vote required under Sections 228 and 242 of the DGCL. The undersigned stockholders also constitute the holders of a majority of the outstanding shares of each applicable class or series of capital stock entitled to vote as a separate class on any matter requiring such separate class vote.
NOW, THEREFORE, BE IT RESOLVED:
SECTION 1 — ADOPTION OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
1.1 Approval and Adoption.
RESOLVED, that the undersigned stockholders of the Company hereby approve, adopt, and consent to the Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. in the form attached hereto as Exhibit A (the "Restated Certificate"), which Restated Certificate shall amend and restate in its entirety the Existing Certificate (including all certificates of designation heretofore filed with respect to the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock), and that the Restated Certificate is hereby approved and adopted in all respects.
RESOLVED FURTHER, that the Restated Certificate shall become effective upon its filing with the Office of the Secretary of State of the State of Delaware, which filing shall occur immediately prior to or upon the closing of the IPO, at such date and time as determined by the Board or any duly authorized officer of the Company.
1.2 Summary of Principal Changes Effected by the Restated Certificate.
The following is a summary of the principal changes effected by the Restated Certificate. This summary is provided for informational and reference purposes only and is qualified in its entirety by reference to the full text of the Restated Certificate attached hereto as Exhibit A, which is incorporated herein by reference. In the event of any inconsistency between this summary and the Restated Certificate, the Restated Certificate shall control.
(a) Establishment of Dual-Class Common Stock Structure.  The Restated Certificate establishes a dual-class common stock structure, creating two classes of Common Stock of the Company:
(i) Class A Common Stock. Class A Common Stock, par value $0.0001 per share, shall be entitled to one (1) vote per share on all matters submitted to a vote or for the consent of the stockholders of the Company. The Class A Common Stock shall be the class of Common Stock offered and sold to the public in the IPO, and all shares of Preferred Stock shall convert into shares of Class A Common Stock upon the closing of the IPO.
(ii) Class B Common Stock. Class B Common Stock, par value $0.0001 per share, shall be entitled to ten (10) votes per share on all matters submitted to a vote or for the consent of the stockholders of the Company. Except as otherwise required by applicable law or as set forth in the Restated Certificate, holders of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters. Each share of Class B Common Stock shall be convertible into one (1) share of Class A Common Stock at the option of the holder thereof at any time, and shall automatically convert into one (1) share of Class A Common Stock upon the occurrence of certain events specified in the Restated Certificate (as summarized in Section 1.2(b) below).
As of immediately following the closing of the IPO (and prior to the exercise of the overallotment option), the Class B Common Stock is expected to be held exclusively by the Company's co-founders, as follows:
•  Priya Subramanian: 16,500,000 shares of Class B Common Stock
•  Marcus Henley: 12,000,000 shares of Class B Common Stock
•  Total Class B Common Stock: 28,500,000 shares
•  Total Class B voting power: 285,000,000 votes
Following the closing of the IPO (assuming the sale of all shares offered in the primary and secondary offerings, and assuming no exercise of the overallotment option), the co-founders are expected to hold approximately 73.5% of the total voting power of the Company (calculated as 285,000,000 Class B votes divided by total estimated votes of approximately 387,641,176, consisting of 285,000,000 Class B votes plus approximately 102,641,176 Class A votes). This dual-class structure is intended to enable the co-founders to maintain effective voting control of the Company during the transition to a publicly traded company, while the Class A stockholders will have economic rights substantially equivalent to those of the Class B stockholders.
(b) Sunset Provision for Class B Common Stock.  The Restated Certificate includes provisions for the automatic conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock on a one-for-one basis. Such automatic conversion shall occur upon the earliest to occur of the following events (each, a "Sunset Event"):
(i) Seven-Year Sunset. The seventh (7th) anniversary of the date of the closing of the IPO;
(ii) Transfer Trigger. Any transfer of shares of Class B Common Stock by a holder thereof to any person or entity that is not a "Permitted Transferee" (as defined in the Restated Certificate), it being understood that such automatic conversion shall apply only to the shares so transferred (and not to all outstanding shares of Class B Common Stock), unless the Restated Certificate provides otherwise with respect to such transfer;
(iii) Ownership Threshold Trigger. The date on which the co-founders of the Company (Priya Subramanian and Marcus Henley), together with their respective Permitted Transferees, collectively cease to beneficially own at least ten percent (10%) of the total number of shares of Common Stock of the Company then outstanding, calculated on an as-converted basis (treating all outstanding shares of Class B Common Stock as if converted into shares of Class A Common Stock for purposes of such calculation).
For purposes of the Restated Certificate, "Permitted Transferees" shall include, among others, (A) the other co-founder, (B) immediate family members of a co-founder, (C) trusts established for the benefit of a co-founder or his or her immediate family members, and (D) entities controlled by a co-founder, in each case subject to the conditions and restrictions set forth in the Restated Certificate.
Upon the occurrence of a Sunset Event described in clause (i) or clause (iii) above, all shares of Class B Common Stock then outstanding shall automatically and without further action convert into shares of Class A Common Stock on a one-for-one basis, and the dual-class structure shall terminate. Following such conversion, no further shares of Class B Common Stock shall be issued.
(c) Authorized Share Capital.  The Restated Certificate shall authorize the following shares of capital stock:
(i) Common Stock. A total of 500,000,000 shares of Common Stock, par value $0.0001 per share, consisting of shares of Class A Common Stock and shares of Class B Common Stock (with the aggregate number of authorized shares of Class A Common Stock and Class B Common Stock not to exceed 500,000,000 shares);
(ii) Preferred Stock. A total of 50,000,000 shares of undesignated "blank check" Preferred Stock, par value $0.0001 per share (the "Undesignated Preferred Stock"). The Board shall have the authority, without further approval of the stockholders (except as may be required by applicable law or the rules of the Nasdaq Global Select Market), to issue shares of Undesignated Preferred Stock from time to time in one or more series, and to fix by resolution or resolutions the designations, powers, preferences, rights, qualifications, limitations, and restrictions thereof, including the dividend rate, conversion rights, voting rights, redemption rights and price, liquidation preferences, and sinking fund terms of any such series.
(d) Elimination of Existing Preferred Stock Designations.  Upon the closing of the IPO, all outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock (totaling, in the aggregate, 62,400,000 shares) shall automatically convert into shares of Class A Common Stock on a one-for-one basis, in accordance with the automatic conversion provisions set forth in the Existing Certificate and the respective certificates of designation for each series. Such conversion shall occur immediately prior to or simultaneously with the filing of the Restated Certificate with the Secretary of State of the State of Delaware.
Upon such conversion, the certificates of designation for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock shall be eliminated and shall have no further force or effect. All designations, powers, preferences, rights, qualifications, limitations, and restrictions previously established for such series of Preferred Stock shall be terminated in their entirety. No shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, or Series D Preferred Stock shall remain authorized or outstanding following the effectiveness of the Restated Certificate, and the shares theretofore designated as such series shall be returned to the status of authorized but unissued shares of Undesignated Preferred Stock (or, to the extent set forth in the Restated Certificate, shall be retired and shall not be reissued).
(e) Exculpation Provision.  The Restated Certificate includes a provision, adopted pursuant to Section 102(b)(7) of the DGCL, that eliminates the personal liability of directors of the Company to the Company and its stockholders for monetary damages for breach of fiduciary duty as a director, to the fullest extent permitted by the DGCL as it exists on the date the Restated Certificate becomes effective or as it may hereafter be amended. Such provision does not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Company or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends, stock purchases, or redemptions); or (iv) for any transaction from which the director derived an improper personal benefit.
(f) Forum Selection.  The Restated Certificate designates the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the United States District Court for the District of Delaware, or, if such court also does not have jurisdiction, any other state court of the State of Delaware) as the sole and exclusive forum for the following types of actions or proceedings:
(i) any derivative action or proceeding brought on behalf of the Company;
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, or agent of the Company to the Company or the Company's stockholders;
(iii) any action asserting a claim arising pursuant to any provision of the DGCL, the Restated Certificate, or the Company's Amended and Restated Bylaws (as each may be amended from time to time); or
(iv) any action asserting a claim governed by the internal affairs doctrine.
The foregoing exclusive forum provision shall not apply to claims arising under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or any claim for which the federal courts have exclusive jurisdiction. Unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, to the extent permitted by applicable law.
(g) Other Provisions.  The Restated Certificate also includes provisions relating to the following matters, among others:
(i) Classified Board of Directors. The Board shall be divided into three classes (Class I, Class II, and Class III), with each class serving staggered three-year terms, as more particularly described in the Restated Certificate. Directors may be removed only for cause and only by the affirmative vote of holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class.
(ii) Corporate Opportunity Waiver. To the extent permitted under Section 122(17) of the DGCL, the Restated Certificate contains a corporate opportunity waiver with respect to certain stockholders and their respective affiliates (including Velthryn Venture Partners Fund IV, L.P. and Arclight Equity Group Fund VII, L.P. and any of their respective affiliated funds or portfolio companies), to the extent set forth therein, such that neither the Company nor any stockholder shall have any right or expectancy in or to any business opportunity that comes to the attention of any such person, except as expressly provided in the Restated Certificate.
(iii) Amendments to Certificate and Bylaws. The Restated Certificate includes provisions requiring the affirmative vote of holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock entitled to vote generally in the election of directors to amend or repeal certain provisions of the Restated Certificate and the Amended and Restated Bylaws.
(iv) Consistency with Bylaws. The Restated Certificate is consistent with, and complementary to, the Company's Amended and Restated Bylaws adopted by the Board in connection with the IPO.
SECTION 2 — AUTHORIZATION OF OFFICERS TO FILE
2.1 Filing with Secretary of State.
RESOLVED, that the undersigned stockholders hereby authorize and direct the officers of the Company, including Priya Subramanian, Chief Executive Officer, and Naomi Feinberg, General Counsel and Corporate Secretary, and each of them, acting singly and with full power of substitution, to execute, verify, acknowledge, and file the Restated Certificate with the Office of the Secretary of State of the State of Delaware at such time as the Board or any duly authorized officer of the Company determines is appropriate, which shall be immediately prior to or upon the closing of the IPO. The officers of the Company are further authorized to make such changes to the Restated Certificate as may be required or requested by the Office of the Secretary of State of the State of Delaware in order to effect such filing, provided that such changes do not materially alter the substance of the Restated Certificate as approved hereby.
2.2 Ancillary Actions.
RESOLVED FURTHER, that the officers of the Company, including the Chief Executive Officer, the Chief Financial Officer, the General Counsel and Corporate Secretary, and each of them, acting singly and with full power of substitution, are hereby authorized, empowered, and directed, in the name and on behalf of the Company, to take any and all actions and to execute, deliver, and file any and all documents, agreements, instruments, and certificates as they may deem necessary, appropriate, or advisable to carry out the purposes and intent of this Written Consent and the resolutions adopted hereby, including, without limitation, (a) filings with any federal, state, or local governmental authority, (b) filings with the SEC, (c) filings with the Nasdaq Global Select Market, (d) issuance of new stock certificates or book-entry positions reflecting the conversion of Preferred Stock into Class A Common Stock, and (e) any other actions necessary to effectuate the Restated Certificate and the transactions contemplated thereby, the execution, delivery, or filing of any such document or the taking of any such action to be conclusive evidence of the authority of such officer to act and of the approval of the action so taken.
SECTION 3 — ADDITIONAL APPROVALS
3.1 Conversion of Preferred Stock.
RESOLVED, that the undersigned stockholders (including the holders of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock, as applicable) hereby confirm their consent to the automatic conversion of all outstanding shares of Preferred Stock of the Company into shares of Class A Common Stock, par value $0.0001 per share, on a one-for-one basis, immediately upon the closing of the IPO, in accordance with the terms and conditions of the Existing Certificate (including the applicable certificates of designation for each series of Preferred Stock) and the Restated Certificate. The undersigned holders of Preferred Stock hereby waive any right to elect not to convert, to the extent any such right exists, and confirm that no anti-dilution adjustments, additional consideration, or other conditions precedent to such conversion remain unsatisfied as of the date hereof (other than the closing of the IPO itself).
3.2 Increase in Authorized Shares.
RESOLVED, that to the extent the Restated Certificate effects any increase in the total number of authorized shares of capital stock of the Company (including, without limitation, the authorization of 50,000,000 shares of undesignated Preferred Stock), the undersigned stockholders hereby approve and consent to such increase in authorized shares in all respects, and confirm that such increase is in the best interests of the Company and its stockholders.
SECTION 4 — GENERAL PROVISIONS
4.1 Effectiveness.  This Written Consent shall be effective as of the Consent Date (being the date of the last signature affixed hereto by the undersigned stockholders); provided, however, that the actions approved hereby, including, without limitation, the filing of the Restated Certificate with the Secretary of State of the State of Delaware, shall be conditioned upon and shall not become effective until the closing of the IPO. In the event the IPO is not consummated for any reason, including, without limitation, the withdrawal of the Registration Statement on Form S-1, the failure of the SEC to declare such Registration Statement effective, or the termination of the underwriting agreement prior to the closing of the IPO, then this Written Consent and all actions approved hereby shall automatically and without further action of the undersigned stockholders be deemed null and void and of no further force or effect, and the Existing Certificate shall remain in full force and effect as if this Written Consent had not been executed and delivered.
4.2 Revocability.  This Written Consent may be revoked by any undersigned stockholder at any time prior to the effectiveness of the actions approved hereby (i.e., prior to the closing of the IPO), by delivering a written notice of revocation to the Corporate Secretary of the Company at the Company's principal executive offices at the following address:
Lumos Analytics Inc.
Attn: Naomi Feinberg, General Counsel and Corporate Secretary
450 Folsom Street, Suite 1200 San Francisco, California 94105
Any such written notice of revocation must be signed by the revoking stockholder and must identify the shares with respect to which the consent is being revoked. Any revocation shall be effective upon receipt by the Corporate Secretary of the Company. For the avoidance of doubt, any revocation by a stockholder whose consent is necessary for the undersigned stockholders collectively to hold a majority of the total voting power required to approve the actions set forth herein shall render this Written Consent ineffective with respect to all actions requiring such majority vote, unless and until a replacement consent is obtained from a stockholder or stockholders holding sufficient voting power.
4.3 Counterparts.  This Written Consent may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Written Consent by electronic transmission, including by facsimile, electronic mail in portable document format (.pdf), or any other electronic means intended to preserve the original graphic and pictorial appearance of a document, shall be as effective as delivery of a manually executed counterpart.
4.4 Governing Law.
This Written Consent shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
4.5 Notice to Non-Consenting Stockholders.
In accordance with Section 228(e) of the DGCL, prompt notice of the taking of the corporate action approved by this Written Consent without a meeting shall be given to those stockholders of the Company who have not consented in writing hereto and who, if the action had been taken at a meeting, would have been entitled to notice of such meeting if the record date for notice of such meeting had been the date that the written consents signed by a sufficient number of holders to take the action were delivered to the Company. The Corporate Secretary of the Company is hereby authorized and directed to provide such notice in compliance with applicable law.
SIGNATURE PAGES
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SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.
The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in her capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.
Shares Held: 16,500,000 shares of Class B Common Stock
Voting Power: 165,000,000 votes (10 votes per share)
PRIYA SUBRAMANIAN
By: ________
Name: Priya Subramanian
Date: ________
SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.
The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in his capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.
Shares Held: 12,000,000 shares of Class B Common Stock
Voting Power: 120,000,000 votes (10 votes per share)
MARCUS HENLEY
By: ________
Name: Marcus Henley
Date: ________
SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.
The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in its capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.
Shares Held: 24,800,000 shares of Series C Preferred Stock and Series D Preferred Stock (combined)
Voting Power: 24,800,000 votes (one vote per share on an as-converted basis)
Address: 2100 Sand Hill Road, Suite 300, Menlo Park, California 94025
VELTHRYN VENTURE PARTNERS FUND IV, L.P.
By: Velthryn Venture Partners Management IV, LLC,
its General Partner
By: ________
Name: Jonathan Tsai
Title: Managing Partner
Date: ________
SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.
The undersigned stockholder hereby executes this Written Consent as of the date set forth below, in its capacity as a stockholder (and not in any other capacity) of Lumos Analytics Inc.
Shares Held: 18,600,000 shares of Series B Preferred Stock and Series C Preferred Stock (combined)
Voting Power: 18,600,000 votes (one vote per share on an as-converted basis)
Address: 780 Third Avenue, 22nd Floor, New York, New York 10017
ARCLIGHT EQUITY GROUP FUND VII, L.P.
By: Arclight Equity Management VII, LLC,
its General Partner
By: ________
Name: Rebecca Stahl
Title: Partner
Date: ________
EXHIBIT A
FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.
(To be filed with the Secretary of State of the State of Delaware immediately prior to or upon the closing of the IPO)
The full text of the Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. (the "Restated Certificate"), in the form approved by the Board of Directors and drafted by Calderwood & Harkness LLP (C&H Matter Number 1008-00002), is set forth on the pages that follow. This Exhibit A is the form of the Restated Certificate previously approved by the Board of Directors and is incorporated by reference into the Written Consent of Stockholders to which it is attached. In the event of any inconsistency between the summary set forth in Section 1.2 of the Written Consent and the provisions of this Exhibit A, the provisions of this Exhibit A shall control.
Cross-Reference: This document corresponds to the separately prepared and circulated document titled "Amended and Restated Certificate of Incorporation of Lumos Analytics Inc. (IPO Form)," Calderwood & Harkness LLP reference number 1008-00002, as most recently revised.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.
(Originally incorporated on March 14, 2016, under the name "Lumos Analytics Inc.")
Lumos Analytics Inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies as follows:
FIRST: The name of the Corporation is Lumos Analytics Inc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 14, 2016, under Delaware File Number 6281934.
SECOND: This Amended and Restated Certificate of Incorporation (this "Restated Certificate") amends, restates, and integrates the provisions of the Certificate of Incorporation of the Corporation, as heretofore amended and supplemented (including all certificates of designation heretofore filed), and has been duly adopted in accordance with Sections 228, 242, and 245 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"), and by the written consent of the holders of the outstanding stock of the Corporation in accordance with Section 228 of the DGCL.
THIRD: The text of the Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:
ARTICLE I — NAME
The name of the Corporation is Lumos Analytics Inc.
ARTICLE II — REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of Delaware is 850 New Burton Road, Suite 201, Dover, Delaware 19904, County of Kent, and the name of its registered agent at such address is Capitol Registered Agents LLC.
ARTICLE III — PURPOSE AND DURATION
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The duration of the Corporation shall be perpetual.
ARTICLE IV — AUTHORIZED CAPITAL STOCK
Section 4.1 Authorized Shares. The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 550,000,000 shares, consisting of:
(a) 500,000,000 shares of Common Stock, par value $0.0001 per share (the "Common Stock"), of which:
(i) 471,500,000 shares are designated as "Class A Common Stock" (the "Class A Common Stock"); and
(ii) 28,500,000 shares are designated as "Class B Common Stock" (the "Class B Common Stock"); and
(b) 50,000,000 shares of Preferred Stock, par value $0.0001 per share (the "Preferred Stock").
Section 4.2 Preferred Stock. The Board of Directors of the Corporation (the "Board") is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designations, powers, preferences, rights, qualifications, limitations, and restrictions thereof, including, without limitation, the authority to fix the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any such series, and to increase or decrease the number of shares of any such series (but not below the number of shares of such series then outstanding). The powers, preferences, rights, qualifications, limitations, and restrictions of different series of Preferred Stock may differ with respect to dividend rates, amounts of dividends, redemption provisions and prices, the amount payable on voluntary or involuntary liquidation, conversion rights, sinking fund requirements, voting rights, and other matters.
ARTICLE V — VOTING RIGHTS
Section 5.1 Voting Rights of Common Stock. Except as otherwise required by applicable law or as set forth in this Restated Certificate:
(a) Each holder of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common Stock held of record by such holder on all matters submitted to a vote or for the consent of the stockholders of the Corporation.
(b) Each holder of Class B Common Stock shall be entitled to ten (10) votes for each share of Class B Common Stock held of record by such holder on all matters submitted to a vote or for the consent of the stockholders of the Corporation.
(c) Except as otherwise required by applicable law or this Restated Certificate, the holders of shares of Class A Common Stock and Class B Common Stock shall vote together as a single class (and, when so voting, shall be counted and tabulated together) on all matters submitted to a vote or for the consent of the stockholders of the Corporation.
Section 5.2 Equal Economic Rights. Except with respect to voting rights and conversion rights as expressly set forth herein, each share of Class A Common Stock and each share of Class B Common Stock shall have the same rights, powers, and privileges, and shall rank equally, share ratably, and be identical in all respects and as to all matters, including, without limitation, with respect to dividends, distributions, stock splits, combinations, mergers, consolidations, and rights upon liquidation, dissolution, or winding up of the Corporation.
ARTICLE VI — CONVERSION OF CLASS B COMMON STOCK; SUNSET PROVISIONS
Section 6.1 Optional Conversion. Each share of Class B Common Stock shall be convertible into one (1) fully paid and nonassessable share of Class A Common Stock at the option of the holder thereof at any time upon written notice to the Corporation.
Section 6.2 Automatic Conversion — Sunset Events. Each share of Class B Common Stock shall automatically, without any further action on the part of the holder thereof, be converted into one (1) fully paid and nonassessable share of Class A Common Stock upon the earliest to occur of the following events (each, a "Sunset Event"):
(a) Seven-Year Sunset. The seventh (7th) anniversary of the date of the closing of the Corporation's first firm commitment underwritten initial public offering of shares of Class A Common Stock pursuant to an effective registration statement filed under the Securities Act of 1933, as amended;
(b) Transfer Trigger. With respect to any share of Class B Common Stock, any Transfer (as defined below) of such share to any person or entity that is not a Permitted Transferee (as defined below) of the holder thereof; provided that such automatic conversion shall apply only to the shares so Transferred (and not to all outstanding shares of Class B Common Stock held by such holder or any other holder) unless otherwise specified herein; and
(c) Ownership Threshold Trigger. The first date on which the Founder Holders (as defined below), together with their respective Permitted Transferees, collectively cease to beneficially own (as such term is defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) at least ten percent (10%) of the total number of shares of Common Stock of the Corporation then outstanding, calculated on an as-converted basis (treating all outstanding shares of Class B Common Stock as if converted into shares of Class A Common Stock for purposes of such calculation).
Section 6.3 Definitions. For purposes of this Article VI:
(a) "Founder Holders" means Priya Subramanian and Marcus Henley.
(b) "Permitted Transferee" means, with respect to any Founder Holder: (i) the other Founder Holder; (ii) a member of such Founder Holder's Immediate Family; (iii) a trust for the benefit of such Founder Holder or any member of such Founder Holder's Immediate Family, provided that such Founder Holder or a member of such Founder Holder's Immediate Family serves as trustee thereof; (iv) a limited liability company, partnership, or other entity that is wholly owned by, and exclusively controlled by, such Founder Holder and/or members of such Founder Holder's Immediate Family; and (v) such other persons or entities as may be approved by the Board as a Permitted Transferee; provided, in each case, that such Permitted Transferee agrees in writing to be bound by the provisions of this Article VI.
(c) "Immediate Family" means, with respect to any natural person, such person's spouse, domestic partner, parents, grandparents, lineal descendants (including adopted children and stepchildren), and siblings.
(d) "Transfer" means any sale, assignment, transfer, conveyance, hypothecation, or other transfer or disposition of such share or any legal or beneficial interest in such share, whether or not for value and whether voluntary or involuntary or by operation of law, including, without limitation, a transfer of a share of Class B Common Stock to a broker or other nominee (regardless of whether there is a corresponding change in beneficial ownership), or the transfer of, or entering into a binding agreement with respect to, voting power (including by proxy, voting agreement, or otherwise) with respect to such share.
Section 6.4 Procedures. The Corporation shall provide written notice to the holders of Class B Common Stock of any Sunset Event (to the extent known to the Corporation) promptly following the occurrence thereof. Upon the conversion of any shares of Class B Common Stock into shares of Class A Common Stock pursuant to this Article VI, the Corporation shall take all actions necessary to effect such conversion, including the cancellation of the applicable shares of Class B Common Stock and the issuance of the corresponding shares of Class A Common Stock.
Section 6.5 No Further Issuance. Following the conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock pursuant to Section 6.2(a) or Section 6.2(c) above, no further shares of Class B Common Stock shall be issued by the Corporation.
ARTICLE VII — CONVERSION OF PREFERRED STOCK UPON IPO
Section 7.1 Automatic Conversion. Upon the closing of the Corporation's first firm commitment underwritten initial public offering of shares of Class A Common Stock pursuant to an effective registration statement filed under the Securities Act of 1933, as amended, all outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock (totaling, in the aggregate, 62,400,000 shares) shall automatically be converted into fully paid and nonassessable shares of Class A Common Stock, at a conversion ratio of one (1) share of Class A Common Stock for each share of Preferred Stock so converted (subject to any adjustments for stock splits, stock dividends, recapitalizations, or the like occurring prior to such conversion).
Section 7.2 Elimination of Preferred Stock Designations. Upon the effectiveness of the conversions described in Section 7.1, the certificates of designation for the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock previously filed with the Secretary of State of the State of Delaware shall be eliminated and shall have no further force or effect. All designations, powers, preferences, rights, qualifications, limitations, and restrictions previously established for such series of Preferred Stock shall be terminated in their entirety. The shares previously designated as Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, and Series D Preferred Stock shall be retired and shall not be reissued as shares of such series. Such retired shares shall resume the status of authorized but unissued shares of Preferred Stock, undesignated as to series, and may be redesignated and reissued by the Board pursuant to the authority granted in Article IV hereof.
ARTICLE VIII — LIMITATION OF LIABILITY
Section 8.1 Exculpation. To the fullest extent permitted by the DGCL as it exists on the date this Restated Certificate becomes effective or as it may hereafter be amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL is amended after the effective date of this Restated Certificate to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
Section 8.2 Savings Clause. Neither any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Restated Certificate inconsistent with this Article VIII, shall eliminate, reduce, or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such amendment, repeal, or adoption with respect to any act or omission occurring prior to such amendment, repeal, or adoption.
ARTICLE IX — FORUM SELECTION
Section 9.1 Delaware Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, the United States District Court for the District of Delaware, or, if such federal court also does not have jurisdiction, any state court located in the State of Delaware) shall be the sole and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, this Restated Certificate, or the Bylaws of the Corporation (as each may be amended from time to time), or (d) any action asserting a claim governed by the internal affairs doctrine. The provisions of this Section 9.1 shall not apply to any action arising under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or any claim for which the federal courts have exclusive jurisdiction.
Section 9.2 Federal Forum for Securities Act Claims. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, to the fullest extent permitted by applicable law.
Section 9.3 Consent to Jurisdiction. Any person or entity purchasing or otherwise acquiring or holding any interest in any security of the Corporation shall be deemed to have notice of and consented to the provisions of this Article IX.
ARTICLE X — AMENDMENT
Section 10.1 Amendment of Certificate. The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Restated Certificate, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Articles V, VI, VIII, IX, X, and XI of this Restated Certificate may not be repealed or amended in any respect, and no provision inconsistent therewith may be adopted, unless such action is approved by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 10.2 Amendment of Bylaws. In furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation. The stockholders shall also have the power to adopt, amend, alter, or repeal the Bylaws of the Corporation; provided, however, that in addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law, this Restated Certificate, or the Bylaws of the Corporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the total voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, or repeal any provision of the Bylaws of the Corporation or to adopt any new bylaw.
ARTICLE XI — CORPORATE OPPORTUNITIES
To the extent permitted by Section 122(17) of the DGCL, the Corporation hereby renounces any interest or expectancy in, or being offered an opportunity to participate in, any business opportunity that may from time to time be presented to or come to the attention of any of the stockholders of the Corporation or any of their respective officers, directors, agents, shareholders, members, partners, affiliates, and subsidiaries (other than the Corporation and its subsidiaries), including, without limitation, Velthryn Venture Partners Fund IV, L.P. and Arclight Equity Group Fund VII, L.P. and any of their respective affiliated investment funds, portfolio companies, partners, members, directors, officers, employees, or agents (collectively, the "Exempted Persons"), even if such opportunity is one that the Corporation might reasonably have pursued or had the ability or desire to pursue if granted the opportunity to do so. No Exempted Person shall have any duty to communicate or offer such business opportunity to the Corporation or be liable to the Corporation or any of its stockholders for breach of any fiduciary or other duty, as a director, officer, or stockholder of the Corporation or otherwise, by reason of the fact that such Exempted Person pursues or acquires such business opportunity, directs such business opportunity to another person or entity, or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation. The foregoing provisions of this Article XI shall not apply to any business opportunity that is expressly offered to a director of the Corporation solely in his or her capacity as a director of the Corporation.
IN WITNESS WHEREOF, Lumos Analytics Inc. has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer on this _ day of ___, 20_.
LUMOS ANALYTICS INC.
By: ________
Name: Priya Subramanian
Title: Chief Executive Officer
End of Exhibit A — Form of Amended and Restated Certificate of Incorporation of Lumos Analytics Inc.
Stockholder | Shares Held | Class/Series | Votes per Share | Total Votes
Priya Subramanian | 16,500,000 | Class B Common Stock | 10 | 165,000,000
Marcus Henley | 12,000,000 | Class B Common Stock | 10 | 120,000,000
Velthryn Venture Partners Fund IV, L.P. | 24,800,000 | Series C & Series D Preferred Stock | 1 (as-converted) | 24,800,000
Arclight Equity Group Fund VII, L.P. | 18,600,000 | Series B & Series C Preferred Stock | 1 (as-converted) | 18,600,000
Total | 71,900,000 | 328,400,000

WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC. IN LIEU OF A SPECIAL MEETING

RECITALS

NOW, THEREFORE, BE IT RESOLVED:

SIGNATURE PAGES

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

PRIYA SUBRAMANIAN

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

MARCUS HENLEY

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

VELTHRYN VENTURE PARTNERS FUND IV, L.P.

SIGNATURE PAGE TO WRITTEN CONSENT OF STOCKHOLDERS OF LUMOS ANALYTICS INC.

ARCLIGHT EQUITY GROUP FUND VII, L.P.

EXHIBIT A

FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF LUMOS ANALYTICS INC.

LUMOS ANALYTICS INC.

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