SECRETARY'S CERTIFICATE OF PENTERRA PHARMACEUTICALS CORP.
October 17, 2023
In connection with the Underwriting Agreement, dated as of October 12, 2023 (the "Underwriting Agreement"), among Penterra Pharmaceuticals Corp., a Delaware corporation (the "Company"), the selling stockholders named therein, and Ridgeline Securities LLC, Broadmark Capital Inc., Linden Groves & Co., and Harborview Partners LLC, as the several underwriters named therein (the "Underwriters"), relating to the registered offering by the selling stockholders of 6,250,000 shares of the Company's common stock, par value $0.001 per share (the "Shares").
The undersigned, David Orenstein, hereby certifies that he is the duly elected, qualified, and acting General Counsel and Corporate Secretary of Penterra Pharmaceuticals Corp., a corporation duly incorporated and existing under the laws of the State of Delaware (the "Company"), with its principal executive offices located at 400 Meridian Parkway, Suite 1200, Princeton, New Jersey 08540 (CIK Number: 0001987654; Employer Identification Number: 82-4039571; Nasdaq Global Select Market ticker symbol: PNTR).
The undersigned makes this certificate in his capacity as General Counsel and Corporate Secretary of the Company and in connection with the closing of the selling-stockholder secondary offering (the "Offering") pursuant to the Underwriting Agreement and the Prospectus Supplement dated October 12, 2023 (the "Prospectus Supplement"), filed pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the "Securities Act"), supplementing the base prospectus (the "Base Prospectus") forming part of the Company's Registration Statement on Form S-3 (File No. 333-274851) (the "Registration Statement"), which Registration Statement was declared effective by the Securities and Exchange Commission (the "SEC") on August 22, 2023. The Base Prospectus, as supplemented by the Prospectus Supplement, is referred to herein as the "Prospectus."
The undersigned has access to the corporate books, records, minute books, and other documents of the Company maintained at its principal executive offices and is duly authorized to execute and deliver this certificate on behalf of the Company. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Underwriting Agreement.
In connection with the foregoing, the undersigned hereby certifies, represents, and confirms the following:
I. Incumbency
The undersigned hereby certifies that the following persons are the duly elected or appointed, qualified, and acting officers of the Company as of the date hereof, holding the offices set forth opposite their respective names, and that the signatures set forth opposite their respective names are their true and genuine signatures. Each such person has been duly authorized to act in such capacity, and no event has occurred that would disqualify any such person from serving in such capacity under applicable law or the Company's organizational documents.
Officers:
The undersigned further certifies that the following persons are the duly elected, qualified, and acting members of the Board of Directors of the Company (the "Board of Directors" or the "Board") as of the date hereof, holding the positions set forth opposite their respective names:
Directors:
In addition to the foregoing directors, the Board of Directors is comprised of other duly elected independent directors serving in accordance with the Company's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, and applicable Nasdaq listing standards. The three directors identified above are specifically identified herein as they are affiliated with the selling stockholders in the Offering and are parties relevant to the transactions contemplated by the Underwriting Agreement.
Each of the officers and directors identified above held such office on September 8, 2023 (the date of adoption of the Board Resolutions referenced below) and continues to hold such office as of the date hereof. No officer or director identified above has resigned, been removed, or otherwise ceased to serve in such capacity at any time between September 8, 2023 and the date hereof.
II. 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 "Certificate of Incorporation"), as filed with the Secretary of State of the State of Delaware. The Certificate of Incorporation is currently in full force and effect and has not been further amended, supplemented, restated, or otherwise modified since the date of its filing, except as reflected in the copy attached hereto as Exhibit A.
The Certificate of Incorporation provides for, among other things, the authorization of the Company's common stock, par value $0.001 per share, and the rights, preferences, privileges, and restrictions applicable thereto. The Certificate of Incorporation was adopted and became effective in connection with the Company's initial public offering, which was consummated on April 17, 2023. Since April 17, 2023, no certificate of amendment, certificate of merger, certificate of correction, or other instrument amending or modifying the Certificate of Incorporation has been filed with the Secretary of State of the State of Delaware.
The Company's registered agent for service of process in the State of Delaware is actionaltional Registered Agents Inc., located at 251 Little Falls Drive, Wilmington, Delaware 19808. The registered agent appointment remains in full force and effect as of the date hereof, and no change in the registered agent or registered office of the Company in the State of Delaware has been made or is contemplated.
III. Bylaws
The undersigned hereby certifies that attached hereto as Exhibit B is a true, correct, and complete copy of the Amended and Restated Bylaws of the Company (the "Bylaws"), as currently in full force and effect. The Bylaws have not been further amended, supplemented, restated, or otherwise modified since their adoption, and no action has been taken by the Board of Directors, any committee thereof, or the stockholders of the Company to amend, supplement, restate, or otherwise modify the Bylaws.
The Bylaws were most recently amended and restated in connection with the Company's initial public offering on April 17, 2023, and have been in continuous effect since that date. The Bylaws govern the internal affairs and corporate governance of the Company, including, without limitation, procedures for meetings of stockholders and directors, the appointment and removal of officers, indemnification of directors and officers, and such other matters as are customarily addressed in the bylaws of a Delaware corporation.
IV. Resolutions
The undersigned hereby certifies that attached hereto as Exhibit C is a true, correct, and complete copy of resolutions duly adopted by the Board of Directors of the Company on September 8, 2023 (the "Resolutions"). The Resolutions were adopted at a duly convened meeting of the Board of Directors at which a quorum was present and acting throughout in accordance with the Certificate of Incorporation, the Bylaws, and the General Corporation Law of the State of Delaware. The Resolutions remain in full force and effect as of the date hereof and have not been amended, modified, rescinded, revoked, or superseded in any respect, whether by subsequent action of the Board of Directors, any committee thereof, or the stockholders of the Company. No other resolutions have been adopted by the Board of Directors or any committee thereof that would in any way conflict with, modify, limit, or adversely affect the Resolutions or the authority granted thereunder.
Without limiting the generality of the foregoing, the undersigned certifies that the Resolutions, among other things, authorized the following actions:
(a) The Company's cooperation with, and facilitation of, the registered selling-stockholder secondary offering of up to 6,250,000 shares of common stock (plus up to an additional 937,500 shares of common stock pursuant to the Underwriters' option to purchase additional shares to cover over-allotments, if any) by the selling stockholders identified therein, namely Dr. Elena Castellano, Dr. Riccardo Castellano, Dr. Marco Castellano, and Castellano Family Holdings LLC (collectively, the "Selling Stockholders");
(b) The authorization of the appropriate officers of the Company to negotiate, finalize, execute, and deliver the Underwriting Agreement with Ridgeline Securities LLC, as representative of the several Underwriters, together with Broadmark Capital Inc., Linden Groves & Co., and Harborview Partners LLC, on such terms and conditions as such officers, in their discretion, deemed appropriate and in the best interests of the Company, taking into account that the Company would not receive any proceeds from the sale of Shares by the Selling Stockholders;
(c) The authorization of the preparation, finalization, and filing of the Prospectus Supplement pursuant to Rule 424(b)(5) under the Securities Act, supplementing the Base Prospectus under the Registration Statement on Form S-3 (File No. 333-274851), and the inclusion therein of all information required by applicable law and the rules and regulations of the SEC;
(d) The authorization of the appropriate officers of the Company to execute and deliver, on behalf of the Company, officer's certificates, this Secretary's Certificate, comfort letter bring-down requests, transfer agent instructions, and all other closing deliverables and ancillary documents required or contemplated in connection with the Offering and the closing thereof;
(e) The authorization of the engagement of Calderwood & Harkness LLP as issuer's counsel for the secondary offering, and the authorization of such counsel to render legal opinions and negative assurance letters in connection with the Offering as required by the Underwriting Agreement;
(f) The authorization of the payment by the Company of issuer expenses in connection with the Offering in an aggregate amount not to exceed Seven Hundred Sixty-Five Thousand Dollars ($765,000), such expenses to consist of the following:
(i) Nasdaq Global Select Market supplemental listing fee: $45,000;
(ii) Legal fees and expenses (Calderwood & Harkness LLP): $485,000;
(iii) Accounting fees and expenses (including comfort letter and consent fees): $175,000;
(iv) Printing and EDGAR filing costs: $35,000; and
(v) Miscellaneous expenses (including transfer agent fees and blue sky filing fees): $25,000; and
(g) The authorization of each of the officers of the Company, acting singly or jointly, to take any and all actions and to execute and deliver any and all agreements, instruments, documents, and certificates as any such officer may deem necessary, appropriate, or desirable to effectuate the purposes and intent of the foregoing resolutions, such determination to be conclusively evidenced by the taking of any such action or the execution and delivery of any such agreement, instrument, document, or certificate.
V. Additional Matters
The undersigned further certifies as follows with respect to additional matters relevant to the Offering and the closing of the transactions contemplated by the Underwriting Agreement:
(a) Good Standing. The Company is in good standing under the laws of the State of Delaware, as evidenced by the certificate of good standing (also referred to as a certificate of status or certificate of existence) issued by the Secretary of State of the State of Delaware dated October 16, 2023, a copy of which has been delivered to counsel for the Underwriters under separate cover. The Company possesses all requisite corporate power and authority to own, lease, and operate its properties and assets and to conduct its business as presently conducted and as described in the Prospectus.
(b) Outstanding Shares. As of the date hereof, the Company has 120,000,000 shares of common stock, par value $0.001 per share, issued and outstanding. The authorized capital stock of the Company and the rights, preferences, and privileges of each class and series thereof are as set forth in the Certificate of Incorporation attached hereto as Exhibit A.
(c) No Proceeds to the Company. The Company will not receive any proceeds from the sale of the Shares by the Selling Stockholders in the Offering. The underwriting discount of 2.50% (equal to $1.04 per Share, based on the public offering price of $41.60 per Share as set forth in the Prospectus Supplement) is to be borne entirely by the Selling Stockholders and will be deducted from the proceeds payable to the Selling Stockholders at the closing of the Offering.
(d) No Dissolution or Bankruptcy Proceedings. No proceedings for the dissolution, liquidation, winding up, merger, consolidation, reorganization, or bankruptcy of the Company have been commenced, are pending, or, to the knowledge of the undersigned after reasonable inquiry, are contemplated or threatened by any person or entity, including the Company, its officers, directors, or stockholders. No receiver, trustee, liquidator, or similar official has been appointed for the Company or any material portion of its assets or properties.
VI. Governing Law; Reliance
This certificate is being delivered pursuant to Section 7(h) of the Underwriting Agreement as a condition precedent to the obligation of the Underwriters to purchase and pay for the Shares at the closing of the Offering.
This certificate, and the certifications, representations, and confirmations set forth herein, may be relied upon by (i) the Underwriters, (ii) Caldwell, Pearce & Strauss LLP, as counsel to the Underwriters, and (iii) Calderwood & Harkness LLP, as counsel to the Company, in each case in connection with the transactions contemplated by the Underwriting Agreement, the rendering of legal opinions and negative assurance letters in connection therewith, and any and all other matters for which reliance on such certifications is customary or appropriate.
This certificate shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without regard to principles of conflict of laws that would result in the application of the laws of any other jurisdiction.
The undersigned has made due inquiry and investigation with respect to all matters certified herein and believes the foregoing certifications to be true and correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of October 17, 2023.
PENTERRA PHARMACEUTICALS CORP.
By: ________
Name: David Orenstein
Title: General Counsel and Corporate Secretary
Address: 400 Meridian Parkway, Suite 1200
Princeton, New Jersey 08540
COUNTER-CERTIFICATION
I, Dr. Marco Castellano, Chief Executive Officer of Penterra Pharmaceuticals Corp., a Delaware corporation, hereby certify that David Orenstein is the duly elected, qualified, and acting General Counsel and Corporate Secretary of the Company, that he held such office on the date of execution of the foregoing Secretary's Certificate, and that the signature appearing above is his true and genuine signature. I make this counter-certification based on my personal knowledge and review of the Company's corporate records.
PENTERRA PHARMACEUTICALS CORP.
By: ________
Name: Dr. Marco Castellano
Title: Chief Executive Officer
Date: October 17, 2023
EXHIBIT INDEX
Exhibit A — Amended and Restated Certificate of Incorporation of Penterra Pharmaceuticals Corp. (as filed with the Secretary of State of the State of Delaware)
Exhibit B — Amended and Restated Bylaws of Penterra Pharmaceuticals Corp.
Exhibit C — Resolutions of the Board of Directors of Penterra Pharmaceuticals Corp., adopted September 8, 2023
Each of the foregoing exhibits is incorporated herein by reference and attached hereto. The exhibits are true, correct, and complete copies of the originals maintained in the corporate records of the Company.
| Name | Title | Signature |
| Dr. Marco Castellano | Chief Executive Officer | _______ |
| Lisa Hargrove | Chief Financial Officer | _______ |
| David Orenstein | General Counsel & Corporate Secretary | _______ |
| Name | Position | |
| Dr. Elena Castellano | Chair of the Board of Directors; Co-Founder | |
| Dr. Riccardo Castellano | Director; Co-Founder | |
| Dr. Marco Castellano | Director; Chief Executive Officer |