SECRETARY'S CERTIFICATE OF LUMOS ANALYTICS INC.
Board Resolutions, Incumbency, Good Standing, and Organizational Documents
March 22, 2024
Calderwood & Harkness LLP Matter No. 1008-00010
In connection with the Channel Reseller Program Agreement by and between Lumos Analytics Inc. and Meridian Data Solutions GmbH, and all ancillary agreements thereto.
I. INTRODUCTORY CERTIFICATION
The undersigned hereby certifies that she is the duly elected, qualified, and acting Secretary of Lumos Analytics Inc., a corporation organized and existing under the laws of the State of Delaware (the "Company"), and that, in such capacity, the undersigned has access to and custody of the original books and records of the Company, including without limitation its Certificate of Incorporation, Bylaws, minute books, stock ledger, and all resolutions duly adopted by the Board of Directors and stockholders of the Company.
The Company's full legal name is Lumos Analytics Inc. The Company is a C-Corporation duly incorporated and validly existing under the General Corporation Law of the State of Delaware. The Company's principal place of business is located at 4700 Sandhill Road, Suite 300, Palo Alto, California 94304. The Company's registered agent in the State of Delaware is Pacific Registered Agents LLC, located at 1209 Orange Street, Wilmington, Delaware 19801. The Company's Employer Identification Number, as assigned by the Internal Revenue Service, is 84-3291056.
The undersigned makes this Secretary's Certificate in connection with the execution and delivery of that certain Channel Reseller Program Agreement dated as of March 22, 2024 (the "Reseller Agreement"), by and between Lumos Analytics Inc. ("Lumos" or the "Company") and Meridian Data Solutions GmbH, a Gesellschaft mit beschränkter Haftung organized under the laws of the Federal Republic of Germany ("Meridian"), and all exhibits, schedules, and ancillary agreements thereto, including without limitation: Exhibits A through F to the Reseller Agreement, the Escrow Agreement by and among the Company, Meridian, and Evergreen Trust Company, N.A., as escrow agent (the "Escrow Agreement"), and the Sub-Distributor Consent Letters issued by the Company in favor of Meridian's designated sub-distributors (the "Consent Letters" and, together with the Reseller Agreement, the Escrow Agreement, and all exhibits, schedules, amendments, side letters, and other instruments executed in connection therewith, collectively, the "Transaction Documents").
This Secretary's Certificate is delivered pursuant to, and in satisfaction of, the conditions precedent set forth in Section 8.1(d) and Section 8.1(e) of the Reseller Agreement, which require, as a condition to the obligations of Meridian at the Effective Date, delivery by the Company of (i) a certificate of the Secretary or an Assistant Secretary of the Company certifying the resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery, and performance of the Transaction Documents, (ii) an incumbency certificate setting forth the names and specimen signatures of the officers authorized to execute the Transaction Documents on behalf of the Company, (iii) certificates of good standing from the Company's state of incorporation and state of principal operations, and (iv) certified copies of the Company's Certificate of Incorporation and Bylaws.
The undersigned hereby makes the following certifications, each of which is made to the best of the undersigned's knowledge and belief after due inquiry and review of the books and records of the Company.
II. CERTIFICATION OF BOARD RESOLUTIONS
A. Recitals to Board Resolutions
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of Lumos Analytics Inc. The Board of Directors held a duly convened special meeting on March 20, 2024, at 10:00 a.m. Pacific Time, at the Company's principal offices located at 4700 Sandhill Road, Suite 300, Palo Alto, California 94304, and via secure videoconference (the "Board Meeting"). Proper notice of the Board Meeting was given to all directors in accordance with Article III, Section 3.7 of the Company's Bylaws, and all directors entitled to notice thereof either received such notice or executed written waivers of notice prior to or at the Board Meeting. A quorum of the Board of Directors was present throughout the entirety of the Board Meeting, in compliance with Article III, Section 3.8 of the Company's Bylaws.
At the Board Meeting, the Board of Directors considered the proposed Channel Reseller Program Agreement providing for the non-exclusive distribution by Meridian of the Company's AI-driven financial analytics and risk-modeling software-as-a-service platform, marketed under the trade name Lumos Prism™, across the territories comprising the Europe, Middle East, and Africa region (the "EMEA Territory"), as more particularly defined in the Reseller Agreement.
The Board of Directors reviewed and considered the material terms and conditions of the Reseller Agreement and the other Transaction Documents, including without limitation: (i) an aggregate Total Contract Value of Thirty Million Dollars ($30,000,000) over a five-year initial term commencing on April 1, 2024 and expiring on March 31, 2029; (ii) a Minimum Annual Commitment schedule requiring Meridian to achieve the following minimum net revenue thresholds during each contract year (Year 1: $4,500,000; Year 2: $5,400,000; Year 3: $6,300,000; Year 4: $6,900,000; Year 5: $6,900,000); (iii) a thirty percent (30%) reseller discount off the Company's then-current EMEA list prices for all Licensed Products and Services; (iv) mutual indemnification obligations, subject to an aggregate cap of Fifteen Million Dollars ($15,000,000) per party for the term of the Reseller Agreement; (v) governing law of the State of California; and (vi) binding arbitration of all disputes before JAMS in Los Angeles, California, in accordance with the JAMS International Arbitration Rules then in effect.
The Board of Directors further considered the terms and conditions of the Escrow Agreement with Evergreen Trust Company, N.A., as escrow agent, which provides for a holdback of five percent (5%) of all quarterly payments remitted by Meridian to the Company, such holdback amounts to be deposited into an interest-bearing escrow account and held for the purpose of satisfying indemnification claims arising under Article 10 of the Reseller Agreement. The Board reviewed the escrow release mechanics, including the eighteen (18) month survival period for general representations and warranties claims and the thirty-six (36) month survival period for fundamental representations, intellectual property indemnification claims, and tax indemnification claims.
The Board of Directors noted that the Transaction Documents had been reviewed and negotiated on behalf of the Company by its outside counsel, Calderwood & Harkness LLP, under the direction and supervision of Howard Bellamy, Partner, and that Calderwood & Harkness LLP had provided the Board with a summary memorandum dated March 18, 2024, setting forth the material terms, key risk factors, and recommended protective provisions contained in the Transaction Documents.
After thorough consideration and deliberation, and upon motion duly made, seconded, and unanimously approved (with no directors abstaining or dissenting), the Board of Directors adopted the Resolutions set forth below.
B. Authorizing Resolutions (Full Text)
The following is a true, correct, and complete copy of the Resolutions adopted by the Board of Directors of Lumos Analytics Inc. at the Board Meeting held on March 20, 2024:
RESOLVED, that the Company is hereby authorized to enter into, execute, and deliver the Channel Reseller Program Agreement with Meridian Data Solutions GmbH, a Gesellschaft mit beschränkter Haftung organized under the laws of the Federal Republic of Germany (registered with the Amtsgericht München under registration number HRB 274581), together with all exhibits, schedules, amendments, supplements, side letters, and ancillary documents contemplated thereby or necessary or desirable in connection therewith, in substantially the form presented to this Board of Directors, with such changes, modifications, and amendments as the officers of the Company executing the same shall approve, such approval to be conclusively evidenced by such officer's execution and delivery thereof.
RESOLVED, that the Company is hereby authorized to enter into, execute, and deliver the Escrow Agreement with Evergreen Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America, as escrow agent, and Meridian Data Solutions GmbH, as counterparty, providing for the holdback of five percent (5%) of quarterly payments remitted by Meridian to the Company for purposes of securing indemnification claims arising under the Reseller Agreement, in substantially the form presented to this Board of Directors, with such changes, modifications, and amendments as the officers of the Company executing the same shall approve, such approval to be conclusively evidenced by such officer's execution and delivery thereof.
RESOLVED, that the Company is hereby authorized to issue Sub-Distributor Consent Letters authorizing Meridian Data Solutions GmbH to appoint the following entities as sub-distributors within the designated sub-territories, subject to the terms and conditions set forth in the Reseller Agreement and the applicable Consent Letters:
(a) Meridian Data Solutions UK Ltd (Companies House registration number 12847391, registered office at 14 Fenchurch Place, London EC3M 5AJ, United Kingdom), as sub-distributor for the territories of the United Kingdom of Great Britain and Northern Ireland, and Ireland; and
(b) Meridian Data Solutions SARL (SIREN registration number 912 483 057, registered office at 27 Rue de la Boétie, 75008 Paris, France), as sub-distributor for the territories of France, the Kingdom of Belgium, the Grand Duchy of Luxembourg, and French-speaking cantons of Switzerland (as identified in the applicable Consent Letter).
RESOLVED, that each of the following officers of the Company is hereby authorized and empowered, acting individually or jointly (and the signature of any one such officer shall be sufficient to bind the Company), to execute and deliver, on behalf of and in the name of the Company, the Transaction Documents and all other documents, instruments, certificates, agreements, and writings contemplated thereby or necessary or advisable in connection therewith, and to take any and all further actions as such officer may deem necessary, appropriate, or advisable to carry out the purposes and intent of the foregoing resolutions, the taking of any such action to be conclusive evidence that such officer deemed such action to be necessary, appropriate, or advisable:
(i) Priya Raghavan, Chief Executive Officer; and
(ii) Marcus Ellenberg, Chief Financial Officer.
RESOLVED, that any and all actions heretofore taken by any officer or director of the Company prior to the date of these Resolutions that are within the scope of the authority conferred by the foregoing resolutions, or that are consistent with the purposes and intent thereof, are hereby ratified, confirmed, and approved in all respects as the acts and deeds of the Company.
RESOLVED, that the officers of the Company are hereby authorized, empowered, and directed to engage such legal counsel, financial advisors, consultants, and agents as may be necessary, appropriate, or advisable in connection with the negotiation, execution, delivery, and performance of the Transaction Documents, including without limitation:
(a) Calderwood & Harkness LLP (Howard Bellamy, Responsible Partner), as outside corporate and transactional counsel to the Company;
(b) Caldwell & Pryce Advisory LLC, as transfer pricing and international tax advisor to the Company, with respect to the cross-border pricing, withholding tax, and value-added tax implications of the Transaction Documents;
(c) Thornbridge Whitaker LLP, as United Kingdom and European Union regulatory counsel to the Company, with respect to data protection (GDPR compliance), financial services regulatory matters, and export control matters arising in the EMEA Territory; and
(d) Ridgepoint Insurance Brokers Inc., as insurance broker to the Company, with respect to errors and omissions, cyber liability, and commercial general liability coverage in connection with the Company's performance obligations under the Transaction Documents.
RESOLVED, that these Resolutions shall remain in full force and effect until expressly amended, modified, supplemented, or revoked by subsequent action of the Board of Directors of the Company, duly adopted at a meeting of the Board at which a quorum is present or by unanimous written consent of the Board in accordance with the Company's Bylaws and the General Corporation Law of the State of Delaware.
III. INCUMBENCY CERTIFICATE
A. Incumbency Table
The undersigned hereby certifies that the following persons are the duly elected or appointed, qualified, and acting officers of Lumos Analytics Inc. in the capacities set forth opposite their respective names as of the date hereof. Each such officer was duly elected or appointed by the Board of Directors of the Company in accordance with the Company's Certificate of Incorporation and Bylaws, continues to hold office as of the date hereof, and has not resigned, been removed, or otherwise ceased to serve in the capacity set forth below. The signatures set forth opposite their respective names are their true and genuine signatures.
A complete incumbency certificate with original specimen signatures of each of the foregoing officers is attached hereto as Exhibit B.
B. Authorization Confirmation
The undersigned further certifies that each of Priya Raghavan, Chief Executive Officer, and Marcus Ellenberg, Chief Financial Officer, is duly authorized, pursuant to the Resolutions set forth in Section II hereof and attached as Exhibit A hereto, to execute and deliver the Transaction Documents on behalf of Lumos Analytics Inc., acting individually or jointly, without the requirement of any additional corporate approval, consent, or authorization. The signatures appearing on the Transaction Documents executed on or about March 22, 2024 are the genuine signatures of such authorized officers, and each such officer had full power and authority to execute such Transaction Documents at the time of execution.
IV. CERTIFICATION OF GOOD STANDING
A. Delaware Good Standing
The undersigned hereby certifies that the Company is a corporation validly existing and in good standing under the General Corporation Law of the State of Delaware. The Company was duly incorporated in the State of Delaware and has not been dissolved, merged, consolidated, or otherwise terminated. All franchise taxes and fees due and payable to the State of Delaware have been timely paid, and no proceedings for the revocation or forfeiture of the Company's certificate of incorporation are pending or, to the knowledge of the undersigned, threatened.
Attached hereto as Exhibit C is a true and correct copy of a Certificate of Good Standing (also referred to as a Certificate of Status or Certificate of Legal Existence) issued by the Secretary of State of the State of Delaware with respect to Lumos Analytics Inc., dated no earlier than five (5) business days prior to March 22, 2024. The Company's Certificate of Incorporation has not been amended, revoked, surrendered, or dissolved since the date of such Certificate of Good Standing, and the Company remains in good standing as of the date hereof.
B. California Good Standing / Qualification
The undersigned further certifies that the Company is duly qualified to transact business as a foreign corporation and is in good standing in the State of California, the state in which the Company maintains its principal place of business at 4700 Sandhill Road, Suite 300, Palo Alto, California 94304. All qualification filings, annual reports, franchise taxes, and fees required to be filed or paid in the State of California have been timely filed and paid, and no proceedings for the revocation or suspension of the Company's qualification to transact business in the State of California are pending or, to the knowledge of the undersigned, threatened.
Attached hereto as Exhibit D is a true and correct copy of a Certificate of Good Standing (or Certificate of Status) issued by the Secretary of State of the State of California with respect to Lumos Analytics Inc., dated no earlier than five (5) business days prior to March 22, 2024. The Company's qualification to transact business in the State of California has not been revoked, suspended, or otherwise terminated since the date of such certificate, and the Company remains in good standing as of the date hereof.
V. CERTIFICATION OF ORGANIZATIONAL DOCUMENTS
A. Certificate of Incorporation
The undersigned hereby certifies that attached hereto as Exhibit E is a true, correct, and complete copy of the Certificate of Incorporation of Lumos Analytics Inc. as originally filed with the Secretary of State of the State of Delaware, together with all amendments, supplements, and certificates of designation thereto as of the date hereof. The undersigned has compared the copy attached as Exhibit E with the original Certificate of Incorporation and all amendments thereto maintained in the books and records of the Company and certifies that Exhibit E is a true, correct, and complete copy thereof.
The Certificate of Incorporation has not been further amended, modified, restated, or supplemented since the date of the last amendment attached hereto, and no proceedings for any further amendment, modification, restatement, supplementation, dissolution, merger, consolidation, or liquidation of the Company are pending or, to the knowledge of the undersigned, contemplated by the Board of Directors or stockholders of the Company.
B. Bylaws. The undersigned hereby certifies that attached hereto as Exhibit F is a true, correct, and complete copy of the Bylaws of Lumos Analytics Inc., as currently in full force and effect. The undersigned has compared the copy attached as Exhibit F with the original Bylaws maintained in the books and records of the Company and certifies that Exhibit F is a true, correct, and complete copy thereof.
The Bylaws have not been amended, modified, restated, or supplemented since the date of the copy attached hereto, and no proceedings for any amendment, modification, restatement, or supplementation of the Bylaws are pending or, to the knowledge of the undersigned, contemplated by the Board of Directors or stockholders of the Company.
VI. ADDITIONAL CERTIFICATIONS
The undersigned further certifies as follows:
1. Continuing Force and Effect of Resolutions. The Resolutions set forth in Exhibit A hereto were duly adopted by the Board of Directors of the Company in accordance with the Company's Certificate of Incorporation, Bylaws, and applicable provisions of the General Corporation Law of the State of Delaware. Such Resolutions have not been amended, modified, supplemented, rescinded, or revoked in whole or in part, and remain in full force and effect as of the date hereof.
2. No Required Governmental Consents Outstanding. No consent, approval, authorization, order, registration, qualification, or filing with any court, governmental authority, regulatory body, or self-regulatory organization is required for the execution, delivery, and performance by the Company of any of the Transaction Documents that has not been duly obtained, given, or made prior to the date hereof. All necessary corporate action on the part of the Company has been taken to authorize the execution, delivery, and performance of the Transaction Documents.
3. No Conflict with Organizational Documents. The execution, delivery, and performance by the Company of the Transaction Documents, and the consummation by the Company of the transactions contemplated thereby, will not (a) conflict with or violate any provision of the Company's Certificate of Incorporation or Bylaws, (b) conflict with, result in a breach of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any material agreement, instrument, or obligation to which the Company is a party or by which any of its assets are bound, or (c) result in the creation or imposition of any lien, charge, encumbrance, or security interest upon any of the assets of the Company.
4. PE Sponsor Notification. Crestline Capital Partners, LP, a Delaware limited partnership, which holds approximately sixty-two and three-tenths percent (62.3%) of the outstanding equity interests in the Company (inclusive of all shares of common stock and preferred stock held directly or through affiliated investment vehicles), has been duly informed of the transactions contemplated by the Transaction Documents, in accordance with the information rights and consent provisions set forth in the Amended and Restated Stockholders' Agreement dated September 14, 2021, by and among the Company and its stockholders. As of the date hereof, no objection, withholding of consent, or notice of disapproval has been received from Crestline Capital Partners, LP (or any of its affiliated entities or designees) with respect to the Transaction Documents or the transactions contemplated thereby.
VII. LIST OF EXHIBITS
The following exhibits are attached to and made a part of this Secretary's Certificate:
VIII. EXECUTION
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of March 22, 2024, and certifies under penalty of perjury that the foregoing statements are true and correct to the best of the undersigned's knowledge, information, and belief after due inquiry and review of the books and records of the Company.
LUMOS ANALYTICS INC.
By: ________
Name: Catherine A. Lindström
Title: Secretary
Date: March 22, 2024
IX. OFFICER'S ACKNOWLEDGMENT AND COUNTERSIGNATURE
The undersigned, being one of the incumbent officers identified in Section III of the foregoing Secretary's Certificate, hereby confirms the accuracy of the statements and certifications contained therein, including without limitation the certification that Catherine A. Lindström is the duly elected, qualified, and acting Secretary of Lumos Analytics Inc., and that the specimen signatures set forth in the Incumbency Certificate attached as Exhibit B are the true and genuine signatures of the officers identified therein. This countersignature is provided in order to independently verify the identity and authority of the Secretary and to avoid any concern regarding self-certification.
LUMOS ANALYTICS INC.
By: ________
Name: Priya Raghavan
Title: Chief Executive Officer
Date: March 22, 2024
CONFIDENTIAL — This Secretary's Certificate and all exhibits attached hereto are delivered solely in connection with the Transaction Documents and may not be relied upon by any person other than the parties thereto and their respective legal counsel without the prior written consent of Lumos Analytics Inc. Calderwood & Harkness LLP Matter No. 1008-00010.
| Name | Title | Specimen Signature |
| Priya Raghavan | Chief Executive Officer | _______ |
| Marcus Ellenberg | Chief Financial Officer | _______ |
| Daniel Ostroff | Vice President, Legal & Compliance | _______ |
| Tomoko Ishikawa | Senior Vice President, Global Partnerships | _______ |
| Exhibit | Description | |
| Exhibit A | Certified Copy of Board Resolutions of Lumos Analytics Inc., adopted March 20, 2024 | |
| Exhibit B | Incumbency Certificate with Specimen Signatures of Officers | |
| Exhibit C | Certificate of Good Standing — State of Delaware (Office of the Secretary of State) | |
| Exhibit D | Certificate of Good Standing — State of California (Office of the Secretary of State) | |
| Exhibit E | Certificate of Incorporation of Lumos Analytics Inc. (as amended through the date hereof) | |
| Exhibit F | Bylaws of Lumos Analytics Inc. (as currently in effect) |