SECRETARY'S CERTIFICATE OF QUILLEN TECHNOLOGIES, INC.
Series A Preferred Stock Financing
FORM — To be executed at Closing
Prepared by: Calderwood & Harkness LLP 555 Mission Street, Suite 3100 San Francisco, CA 94105
Instruction Note: This is a blank template form prepared by investor counsel. All bracketed fields are placeholders to be completed at or prior to closing. No matter-specific content should be pre-filled. Company counsel should review and confirm conformity with the Company's records before execution. Cross-reference the applicable section of the Purchase Agreement requiring delivery of this certificate as a condition to closing for the benefit of the Investors.
The undersigned hereby certifies that he or she is the duly elected, qualified, and acting Secretary (or Assistant Secretary) of [Insert Full Legal Name of Company] (the "Company"), a corporation duly organized and existing under the laws of the State of [Insert State of Incorporation]. The undersigned further certifies that he or she is familiar with the books, records, minute books, and corporate proceedings of the Company and is authorized to execute and deliver this certificate on behalf of the Company.
This Secretary's Certificate (this "Certificate") is being delivered pursuant to Section [Insert Section Reference] of that certain Series A Preferred Stock Purchase Agreement, dated as of [Insert Date] (as the same may be amended, restated, or otherwise modified from time to time, the "Purchase Agreement"), by and among the Company and the Investors listed on the Schedule of Investors attached thereto (collectively, the "Investors"). The undersigned acknowledges that the Investors are relying upon the accuracy and completeness of the certifications contained herein in connection with the consummation of the transactions contemplated by the Purchase Agreement.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement. Any reference herein to the "date hereof" shall mean the date on which this Certificate is executed and delivered.
In connection with the closing of the transactions contemplated by the Purchase Agreement (the "Closing"), the undersigned Secretary of the Company hereby certifies to the Investors as follows:
1. Certificate of Incorporation.
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of the Amended and Restated Certificate of Incorporation of the Company (the "Restated Certificate"), as duly filed with the Secretary of State of the State of [Insert State — e.g., Delaware] on [Insert Filing Date]. The copy attached hereto as Exhibit A is a true and accurate reproduction of the Restated Certificate as filed with and returned by the Secretary of State of the State of [Insert State], bearing the filing stamp and file date of the Secretary of State. The Restated Certificate has not been further amended, supplemented, restated, or otherwise modified since the date of its filing, and the Restated Certificate is in full force and effect as of the date hereof. No proceedings have been initiated or are pending to amend, supplement, restate, or otherwise modify the Restated Certificate, except as expressly contemplated by the Purchase Agreement and the transactions contemplated thereby.
[Instruction: Attach as Exhibit A a file-stamped copy of the Amended and Restated Certificate of Incorporation as returned by the Delaware Secretary of State. If the filing was completed electronically, attach the electronic acknowledgment and the filed document bearing the Secretary of State's endorsement.]
2. Bylaws.
The undersigned hereby certifies that attached hereto as Exhibit B is a true, correct, and complete copy of the Bylaws of the Company, as currently in effect (the "Bylaws"). The Bylaws have not been amended, supplemented, restated, or otherwise modified since [Insert Date of Last Amendment or Original Adoption], and the Bylaws remain in full force and effect as of the date hereof. No proceedings have been initiated or are pending to amend, supplement, restate, or otherwise modify the Bylaws, except as expressly contemplated by the Purchase Agreement and the transactions contemplated thereby. The copy of the Bylaws attached hereto as Exhibit B constitutes the only bylaws of the Company.
[Instruction: Attach as Exhibit B the current Bylaws of the Company as maintained in the Company's minute book. If the Bylaws have been amended at any point since original adoption, attach the Bylaws as amended through the most recent amendment, or the restated version thereof.]
3. Board Resolutions.
The undersigned hereby certifies that attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions duly adopted by the Board of Directors of the Company (the "Board Resolutions"), adopted by [unanimous written consent / at a meeting duly called and held in accordance with the Bylaws and the General Corporation Law of the State of [Insert State]] on [Insert Date], authorizing and approving the following matters:
(a) The filing of the Restated Certificate with the Secretary of State of the State of [Insert State], including without limitation the authorization of the Company's Series [Insert Series Designation] Preferred Stock and the establishment of the rights, preferences, privileges, and restrictions thereof as set forth in the Restated Certificate;
(b) The issuance and sale of shares of the Company's Series [Insert Series Designation] Preferred Stock to the Investors pursuant to the Purchase Agreement, at the price per share and on the terms and conditions set forth therein;
(c) The execution, delivery, and performance by the Company of the Purchase Agreement and each of the Related Agreements (as defined in the Purchase Agreement), including without limitation:
(i) the Investors' Rights Agreement, dated as of [Insert Date], by and among the Company, the Investors, and the other parties thereto;
(ii) the Voting Agreement, dated as of [Insert Date], by and among the Company, the Investors, and the other parties thereto;
(iii) the Right of First Refusal and Co-Sale Agreement, dated as of [Insert Date], by and among the Company, the Investors, and the other parties thereto;
(iv) the Management Rights Letters, to be issued to those Investors that are Qualified Purchasers (or their designees) as required by such Investors;
(v) the Indemnification Agreements, to be entered into between the Company and each of the directors and officers of the Company designated by the Board of Directors; and
(vi) any side letters entered into by the Company in connection with the financing contemplated by the Purchase Agreement;
(d) The conversion of outstanding convertible promissory notes of the Company into shares of Series [Insert Series Designation] Preferred Stock in accordance with the terms thereof, including without limitation the promissory notes issued to [Insert Noteholder Name(s), if known, or state "certain holders"] on or about [Insert Date(s)];
(e) The expansion of the Company's equity incentive plan from [Insert Prior Authorized Pool Size] shares to [Insert New Authorized Pool Size] shares, and the reservation of such shares for issuance pursuant to the terms of such plan; and
(f) Such other actions, including the execution and delivery of any ancillary documents, instruments, or certificates, as are contemplated by or otherwise reasonably necessary to consummate the transactions described in the Purchase Agreement and the Related Agreements.
The Board Resolutions were duly adopted in compliance with the Certificate of Incorporation, the Bylaws, and the General Corporation Law of the State of [Insert State]. The Board Resolutions have not been amended, modified, rescinded, or revoked in any respect and remain in full force and effect as of the date hereof. No other resolutions have been adopted by the Board of Directors of the Company that would conflict with or modify the Board Resolutions in any respect.
[Instruction: Attach as Exhibit C the executed written consent of the Board of Directors or, if the resolutions were adopted at a board meeting, certified minutes of the board meeting, as applicable. If adopted by written consent, ensure that all directors have signed the written consent or that the requisite number of directors has signed in accordance with the Bylaws and applicable law.]
4. Stockholder Consents.
The undersigned hereby certifies that attached hereto as Exhibit D is a true, correct, and complete copy of the written consent of the stockholders of the Company (the "Stockholder Consent"), duly executed by the holders of the requisite number of outstanding shares of the Company's capital stock (voting together as required by the Company's Certificate of Incorporation and applicable law), approving the following matters:
(a) The filing of the Restated Certificate with the Secretary of State of the State of [Insert State], including without limitation the authorization of the Company's Series [Insert Series Designation] Preferred Stock and the establishment of the terms, rights, preferences, privileges, and restrictions thereof as set forth in the Restated Certificate;
(b) The increase in the total number of authorized shares of [Common Stock / all classes of capital stock] of the Company from [Insert Prior Authorized Number] shares to [Insert New Authorized Number] shares, as set forth in the Restated Certificate;
(c) The expansion of the Company's [Insert Plan Name — e.g., 20XX Equity Incentive Plan] option pool from [Insert Prior Pool Size] shares to [Insert New Pool Size] shares, and the reservation of such additional shares for issuance thereunder; and
(d) Such other matters as are required to be approved by the stockholders of the Company in connection with the transactions contemplated by the Purchase Agreement and the Related Agreements.
The Stockholder Consent was duly executed by the holders of at least a majority of the outstanding shares of [Insert Applicable Voting Classes — e.g., Common Stock and Series Seed Preferred Stock, voting together as a single class on an as-converted basis], which constitutes the requisite vote required under the Company's Certificate of Incorporation and the General Corporation Law of the State of [Insert State] for the approval of each of the matters described above. The Stockholder Consent was executed in accordance with Section 228 of the General Corporation Law of the State of [Insert State] (or the analogous provision of the applicable state corporation statute), and prompt notice of the taking of such action without a meeting has been (or will be) given to those stockholders who did not execute the Stockholder Consent, to the extent required by applicable law.
The Stockholder Consent has not been amended, modified, rescinded, or revoked in any respect and remains in full force and effect as of the date hereof.
[Instruction: Attach as Exhibit D the executed written consent of stockholders. Ensure that the consent has been signed by holders representing at least the minimum voting threshold required under the Certificate of Incorporation and applicable law. If multiple classes or series must vote separately, confirm that each class or series vote has been satisfied.]
5. Incumbency of Officers and Directors.
The undersigned hereby certifies that set forth below are the names, titles, and specimen signatures of the officers and directors of the Company who are authorized to execute and deliver the Purchase Agreement, the Related Agreements, and any other documents, instruments, or certificates on behalf of the Company in connection with the Closing. Each such person has been duly appointed or elected to the office or position set forth opposite his or her name in accordance with the Restated Certificate, the Bylaws, and applicable law:
Each individual listed above held the office or position indicated opposite his or her name at all relevant times during which such individual executed any document, instrument, or certificate in connection with the transactions contemplated by the Purchase Agreement, and each such individual continues to hold such office or position as of the date hereof. The signatures set forth opposite the names of such individuals above are the true and genuine signatures of such individuals.
6. Good Standing.
The undersigned hereby certifies that attached hereto as Exhibit E is a certificate of good standing (or certificate of legal existence, as applicable) of the Company issued by the Secretary of State of the State of [Insert State of Incorporation], dated on or about [Insert Date], confirming that the Company is a corporation in good standing under the laws of such state, that it has paid all applicable franchise taxes and fees, and that no proceedings are pending for the dissolution or revocation of the Company's charter.
[If applicable, include the following paragraph:]
The undersigned further certifies that attached hereto as Exhibit F is a certificate of good standing (or certificate of authority / foreign qualification certificate, as applicable) of the Company issued by the Secretary of the Commonwealth of [Insert Qualification State, if applicable — e.g., Massachusetts], dated on or about [Insert Date], confirming that the Company is duly qualified to transact business as a foreign corporation and is in good standing in such jurisdiction.
[Instruction: Attach as Exhibit E and, if applicable, Exhibit F, the good standing certificate(s) obtained within [Insert Number — typically 5 to 10] business days prior to the Closing Date. Good standing certificates may be obtained in expedited fashion from most states. Confirm with the Company whether it is qualified to do business in any jurisdiction other than its state of incorporation and whether any such foreign good standing certificate is required by the Purchase Agreement.]
7. No Amendments or Modifications.
The undersigned hereby certifies that, except as set forth in the exhibits attached hereto, no amendments, supplements, restatements, or other modifications have been made to the Restated Certificate, the Bylaws, the Board Resolutions, or the Stockholder Consent described herein since the respective dates of their adoption, filing, or execution (as applicable), and each of the foregoing documents remains in full force and effect as of the date hereof without any amendment, modification, rescission, or revocation. No action has been taken or is contemplated by the Board of Directors or the stockholders of the Company that would in any way conflict with, alter, or supersede any of the authorizations, approvals, or other matters set forth in the Board Resolutions or the Stockholder Consent.
8. Authorized Capital Stock.
The undersigned hereby certifies that, as of immediately prior to the Closing and after giving effect to the filing of the Restated Certificate with the Secretary of State of the State of [Insert State], the authorized capital stock of the Company consists of the following:
(a) Common Stock. [Insert Number] shares of Common Stock, par value $[Insert Par Value] per share, of which [Insert Number] shares are issued and outstanding as of immediately prior to the Closing.
(b) Preferred Stock. [Insert Number] shares of Preferred Stock, par value $[Insert Par Value] per share, designated as follows:
(i) [Insert Number] shares of Series Seed Preferred Stock, of which [Insert Number] shares are issued and outstanding as of immediately prior to the Closing; and
(ii) [Insert Number] shares of Series [Insert Designation] Preferred Stock, of which [Insert Number] shares will be issued and outstanding immediately upon the Closing (including shares issued upon conversion of outstanding convertible promissory notes in connection with the Closing).
(c) Equity Incentive Plan Shares. [Insert Number] shares of Common Stock are reserved for issuance under the Company's [Insert Plan Name] Equity Incentive Plan (the "Plan"), of which (A) [Insert Number] shares are subject to outstanding options or other equity awards granted under the Plan, and (B) [Insert Number] shares remain available for future grant under the Plan.
All issued and outstanding shares of capital stock of the Company have been duly authorized, validly issued, fully paid, and nonassessable. No shares of capital stock of the Company have been issued in violation of any preemptive rights, rights of first refusal, or similar rights of any person.
[Instruction: Confirm all figures set forth in this Section 8 against the final capitalization table delivered in connection with the Closing and the authorized share numbers set forth in the Restated Certificate prior to execution of this Certificate. Coordinate with the Company's transfer agent, if any, to verify outstanding share amounts.]
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of [Insert Closing Date].
________________________________________
[Insert Name] Secretary of [Insert Full Legal Name of Company]
EXHIBIT LIST
Exhibit A — Amended and Restated Certificate of Incorporation of the Company (as filed with the Secretary of State of the State of [Insert State] on [Insert Filing Date])
Exhibit B — Bylaws of the Company (as currently in effect)
Exhibit C — Board Resolutions ([Written Consent of the Board of Directors / Minutes of Board Meeting] dated [Insert Date])
Exhibit D — Stockholder Consent (Written Consent of Stockholders dated [Insert Date])
Exhibit E — Certificate of Good Standing — State of [Insert State of Incorporation]
Exhibit F — Certificate of Good Standing — [Insert Qualification State, if applicable] (include only if the Company is qualified to do business as a foreign corporation in a jurisdiction other than its state of incorporation)
EXHIBIT A
Amended and Restated Certificate of Incorporation of [Insert Full Legal Name of Company]
(as filed with the Secretary of State of the State of [Insert State] on [Insert Filing Date])
[Attach file-stamped copy here.]
EXHIBIT B
Bylaws of [Insert Full Legal Name of Company]
(as currently in effect)
[Attach current Bylaws here.]
EXHIBIT C
Board Resolutions
[Written Consent of the Board of Directors / Minutes of Board Meeting] of [Insert Full Legal Name of Company]
Dated [Insert Date]
[Attach executed written consent or certified minutes here.]
EXHIBIT D
Stockholder Consent
Written Consent of the Stockholders of [Insert Full Legal Name of Company]
Dated [Insert Date]
[Attach executed written consent of stockholders here.]
EXHIBIT E
Certificate of Good Standing
[Insert Full Legal Name of Company]
State of [Insert State of Incorporation]
Dated [Insert Date]
[Attach certificate of good standing here.]
EXHIBIT F
Certificate of Good Standing — Foreign Qualification
[Insert Full Legal Name of Company]
[Insert Qualification State]
Dated [Insert Date]
(Include only if applicable)
[Attach certificate of good standing / foreign qualification certificate here, if applicable.]
| Name | Title | Specimen Signature |
| [Insert Name] | [Insert Title — e.g., Chief Executive Officer] | _____ |
| [Insert Name] | [Insert Title — e.g., Chief Technology Officer] | _____ |
| [Insert Name] | [Insert Title — e.g., Vice President of Product] | _____ |
| [Insert Name] | [Insert Title — e.g., Chief Financial Officer] | _____ |
| [Insert additional officers/directors as applicable] | [Insert Title] | _____ |