1018-00003 · Client 1018 · Negotiation & Transaction Documents

form-written-consent-caliston-stockholders.docx DOCUMENT M&A / Corporate

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FORM OF WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING OF STOCKHOLDERS OF [INSERT FULL LEGAL NAME OF TARGET COMPANY]

Action by Written Consent of the Stockholders Pursuant to Section 228 of the Delaware General Corporation Law

Note to Drafter: This is a standard-form written consent template. All bracketed fields are to be completed at the time of execution. The form should be generic, containing placeholders and instructional guidance rather than pre-filled answers. Illustrative examples within guidance text are generic and do not reflect the specific findings, conclusions, or details of any particular transaction. Remove all bracketed instructions and drafting notes prior to circulating a final execution version.

The undersigned, being holders of shares of capital stock of [Insert Full Legal Name of Target Company], a Delaware corporation (the "Company"), representing at least a majority of the outstanding shares of capital stock of the Company entitled to vote thereon, hereby consent in writing to the adoption of the following resolutions and the taking of the actions set forth herein, without a meeting, without prior notice, and without a vote, pursuant to Section 228 of the Delaware General Corporation Law (the "DGCL"). This Written Consent is being executed and delivered in accordance with, and in reliance upon, Section 228 of the DGCL and the applicable provisions of the Company's Certificate of Incorporation and Bylaws.

This Written Consent shall be effective as of the date on which written consents signed by holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon have been delivered to the Company (the "Effective Date"). Each undersigned stockholder has set forth such stockholder's date of execution in the applicable signature block appended hereto. The Secretary of the Company shall determine and certify the Effective Date upon receipt of written consents representing shares sufficient to satisfy the requisite voting threshold, in accordance with the procedures set forth herein and in Section 228 of the DGCL.

[Instruction: Insert date of execution by each signatory in the signature block. The Company Secretary shall determine and certify the Effective Date as described herein and in the Secretary's Certification Page attached hereto.]

RECITALS

WHEREAS, the Company is a corporation duly organized and existing under the laws of the State of Delaware, with its principal office located at [Insert principal office address of the Company]; and

WHEREAS, as of the date hereof, the authorized capital stock of the Company consists of [Insert authorized share description, including classes and series of capital stock (e.g., __ shares of Common Stock, par value $0.0001 per share ("Common Stock"); __ shares of Series Seed Preferred Stock, par value $0.0001 per share ("Series Seed Preferred Stock"); __ shares of Series A Preferred Stock, par value $0.0001 per share ("Series A Preferred Stock"); __ shares of Series B Preferred Stock, par value $0.0001 per share ("Series B Preferred Stock"); and __ shares of Series C Preferred Stock, par value $0.0001 per share ("Series C Preferred Stock"))], of which [Insert number] shares are issued and outstanding and entitled to vote on the matters set forth herein; and

WHEREAS, the Company has entered into that certain Agreement and Plan of Merger, dated as of [Insert date of execution of merger agreement] (as may be amended, restated, supplemented, or otherwise modified from time to time, the "Merger Agreement"), by and between the Company and [Insert full legal name of acquiring entity], a [Insert jurisdiction of organization] corporation ("Parent"), pursuant to which, among other things, the Company will merge with and into Parent (the "Merger"), with Parent surviving the Merger as the surviving corporation; and

WHEREAS, pursuant to the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each share of capital stock of the Company issued and outstanding immediately prior to the Effective Time (other than (i) shares held by Parent, the Company (as treasury shares), or any direct or indirect wholly owned subsidiary of Parent or the Company, and (ii) shares held by stockholders who have properly demanded and not withdrawn or otherwise forfeited their appraisal rights under Section 262 of the DGCL ("Dissenting Shares")) will be converted into the right to receive the merger consideration as set forth in the Merger Agreement, consisting of [Insert general description of consideration structure (e.g., a combination of cash and shares of common stock of Parent, allocated among the various classes and series of capital stock of the Company in accordance with the Company's Certificate of Incorporation and the Merger Agreement)], subject to the terms and conditions of the Merger Agreement; and

WHEREAS, in connection with the Merger, Parent has entered into that certain Contingent Value Rights Agreement, dated as of [Insert date], by and between Parent and [Insert full legal name of CVR trustee], as trustee (the "CVR Trustee") (the "Contingent Value Rights Agreement"), pursuant to which holders of Company capital stock may become entitled to receive additional contingent consideration upon the achievement of certain milestone events, as more fully described in the Merger Agreement and the Contingent Value Rights Agreement; and

WHEREAS, the Board of Directors of the Company (the "Board"), after careful consideration, including consideration of the opinion of [Insert name of financial advisor to the Company's board], the Company's independent financial advisor, to the effect that, as of the date of such opinion and based upon and subject to the assumptions, qualifications, limitations, and other matters set forth therein, the merger consideration to be received by the holders of capital stock of the Company pursuant to the Merger Agreement is fair, from a financial point of view, to such holders, has (a) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of the Company and its stockholders, (b) approved and adopted the Merger Agreement and the transactions contemplated thereby, including the Merger, and (c) resolved to recommend that the stockholders of the Company approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger (the "Board Recommendation"); and

WHEREAS, pursuant to Section 251 of the DGCL and the Company's Certificate of Incorporation, as amended and restated to date, the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, requires the affirmative vote or written consent of the holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon; and

WHEREAS, pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation and Bylaws, any action required or permitted to be taken at any annual or special meeting of stockholders of the Company 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; and

WHEREAS, the undersigned stockholders collectively hold shares of capital stock of the Company representing not less than a majority of the outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, and desire to take the actions set forth herein by written consent in lieu of a meeting of stockholders of the Company.

RESOLUTIONS

NOW, THEREFORE, BE IT RESOLVED, that the undersigned stockholders of the Company, representing not less than a majority of the outstanding shares of capital stock of the Company entitled to vote thereon, hereby adopt the following resolutions by written consent in lieu of a special meeting of stockholders:

1. Approval and Adoption of the Merger Agreement

RESOLVED, that the Merger Agreement, dated as of [Insert date of execution of merger agreement], by and between the Company and Parent, including all exhibits, schedules, annexes, and ancillary documents thereto, and the transactions contemplated thereby, including the Merger, be, and hereby are, approved and adopted in all respects.

2. Approval of the Merger

RESOLVED, that the merger of the Company with and into [Insert full legal name of Parent], with [Insert full legal name of Parent] as the surviving corporation of the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, be, and hereby is, approved in all respects.

3. Approval of Ancillary Agreements

RESOLVED, that, to the extent required by the Merger Agreement, applicable law, or otherwise deemed advisable by the Board or the officers of the Company, the execution, delivery, and performance of each of the ancillary agreements contemplated by the Merger Agreement, including without limitation [Insert names/descriptions of key ancillary agreements, e.g., the Contingent Value Rights Agreement, the Escrow Agreement, and the Stockholder Representative Agreement], and the consummation of the transactions contemplated thereby, be, and hereby are, approved and ratified in all respects.

4. Appointment and Confirmation of Stockholder Representative

RESOLVED, that [Insert full legal name of stockholder representative entity or individual] be, and hereby is, appointed and confirmed as the stockholder representative (the "Stockholder Representative") to act on behalf of the former stockholders of the Company in connection with and following the consummation of the Merger, with such powers, duties, and authority as set forth in the Stockholder Representative Agreement, dated as of [Insert date], and in the Merger Agreement, including without limitation the authority to:

(a) negotiate, resolve, compromise, and settle any and all indemnification claims, disputes, and other matters arising under or in connection with the Merger Agreement on behalf of the former stockholders;

(b) authorize, approve, and direct disbursements from any escrow fund, holdback amount, or expense fund established pursuant to the Merger Agreement or any ancillary agreement in connection therewith;

(c) administer all matters relating to the Contingent Value Rights Agreement, including the determination and verification of milestone events and the receipt and distribution of contingent consideration payments;

(d) execute and deliver on behalf of the former stockholders any amendments, waivers, consents, or modifications to the Merger Agreement, the Stockholder Representative Agreement, the Escrow Agreement, or any other ancillary agreement, in each case as contemplated by the applicable agreement;

(e) engage legal counsel, accountants, financial advisors, and other professionals as the Stockholder Representative may deem necessary or advisable in the performance of its duties;

(f) make, execute, acknowledge, and deliver all such other agreements, instruments, and documents, and to take all such other actions, as the Stockholder Representative may deem necessary, appropriate, or advisable to carry out its duties and responsibilities under the Merger Agreement and the Stockholder Representative Agreement; and

(g) take such other actions as are contemplated by or necessary to effectuate the transactions under the Merger Agreement and the ancillary agreements.

5. Authorization of Officers and Agents

RESOLVED, that the officers of the Company, and each of them acting alone (and with full power of substitution and delegation), be, and hereby are, authorized, empowered, and directed, in the name and on behalf of the Company, to execute and deliver all documents, instruments, agreements, and certificates, to pay all fees, costs, and expenses, and to take all such further actions as any such officer may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions, including without limitation:

(a) the preparation, execution, and filing of the Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the requirements of Section 251 of the DGCL;

(b) the preparation, execution, and filing of any and all other certificates, forms, reports, notices, and filings with any federal, state, local, or foreign governmental authority or regulatory body as may be required by applicable law in connection with the Merger;

(c) the execution and delivery of any closing certificates, officer's certificates, or secretary's certificates required by the Merger Agreement or any ancillary agreement;

(d) the execution and delivery of any amendments, supplements, or modifications to the Merger Agreement or any ancillary agreement as may be required or permitted thereunder; and

(e) such other actions as may be required or advisable to consummate the Merger and the other transactions contemplated by the Merger Agreement.

6. Ratification of Prior Actions

RESOLVED, that all actions heretofore taken by the Board, the officers of the Company, and their respective agents, designees, and representatives in connection with the negotiation, execution, delivery, and performance of the Merger Agreement and the transactions contemplated thereby, to the extent consistent with the foregoing resolutions, be, and hereby are, ratified, confirmed, and approved in all respects, nunc pro tunc to the dates such actions were taken.

7. Omnibus Authorization

RESOLVED, that the officers of the Company be, and hereby are, authorized and directed to take, or cause to be taken, all such further actions and to execute and deliver, or cause to be executed and delivered, all such further agreements, instruments, documents, certificates, and filings, in the name and on behalf of the Company, as any such officer may deem necessary, appropriate, or advisable in order to fully carry out the intent and accomplish the purposes of the foregoing resolutions, and that the execution and delivery by any such officer of any such agreement, instrument, document, certificate, or filing shall be conclusive evidence of such officer's determination that such action was necessary, appropriate, or advisable and of such officer's approval thereof.

WAIVER OF APPRAISAL RIGHTS

[Guidance to Drafter: Include this section only if consenting stockholders intend to affirmatively waive appraisal rights under Section 262 of the DGCL. Inclusion of this waiver is typically optional and may be omitted from the final execution version at the direction of legal counsel. If the waiver is not included, the bracketed alternative language regarding preservation of appraisal rights should be substituted.]

[Select one of the following alternatives:]

[Alternative A — Waiver of Appraisal Rights:] The undersigned stockholders hereby irrevocably waive any and all rights of appraisal under Section 262 of the DGCL or otherwise that such undersigned stockholders may have in connection with the Merger, including any right to demand appraisal of shares of capital stock of the Company held by such stockholders as of or prior to the Effective Time. Each undersigned stockholder acknowledges that, by executing this Written Consent and electing the waiver set forth in this paragraph, such stockholder will not be entitled to seek a judicial determination of the fair value of such stockholder's shares of capital stock of the Company under Section 262 of the DGCL.

[Alternative B — Preservation of Appraisal Rights:] Nothing contained in this Written Consent shall be deemed to constitute a waiver by any undersigned stockholder of any rights of appraisal that such stockholder may have under Section 262 of the DGCL or otherwise in connection with the Merger. Each undersigned stockholder reserves any and all rights that such stockholder may have under Section 262 of the DGCL with respect to such stockholder's shares of capital stock of the Company, subject to the terms, conditions, and procedures set forth in Section 262 of the DGCL.

GENERAL PROVISIONS

Effectiveness. This Written Consent shall become effective upon the date on which it is signed by stockholders holding shares representing a majority of the outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, as determined and certified by the Secretary (or any Assistant Secretary) of the Company in accordance with Section 228 of the DGCL. For the avoidance of doubt, this Written Consent shall not become effective until such time as the requisite number of shares has been so consented and the Secretary (or Assistant Secretary) of the Company has received delivery of executed counterparts representing such shares.

Counterparts. This Written Consent may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. Counterparts may be delivered by facsimile transmission or electronic transmission (including in portable document format (.pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act, as applicable), and any counterpart so delivered shall be deemed to have been duly and validly delivered and to be valid and effective for all purposes.

Revocability. Any stockholder who has executed this Written Consent may revoke such consent by delivering a written revocation to the Secretary of the Company at any time prior to the time that written consents signed by the holders of a sufficient number of shares to take the action described herein have been filed with and received by the Secretary of the Company, in accordance with Section 228(c) of the DGCL. Any such revocation shall be effective only if received by the Secretary of the Company prior to the Effective Date. After the Effective Date, this Written Consent shall be irrevocable.

No Meeting Required

The undersigned stockholders hereby acknowledge and confirm that this Written Consent is being delivered pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation and Bylaws, and that no meeting of stockholders of the Company is required in connection herewith. The undersigned stockholders further acknowledge that no prior notice was required to be given, and no prior notice was given, to any stockholder of the Company in connection with the actions taken by this Written Consent, except as may be required following the effectiveness of this Written Consent pursuant to Section 228(e) of the DGCL. The Company shall provide prompt notice of the taking of the corporate actions set forth herein to those stockholders who have not consented in writing to such actions, in accordance with Section 228(e) of the DGCL.

Governing Law. This Written Consent shall be governed by and construed in accordance with the 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.

Defined Terms. Capitalized terms used but not otherwise defined in this Written Consent shall have the respective meanings ascribed to such terms in the Merger Agreement. In the event of any conflict between the definitions set forth in this Written Consent and those set forth in the Merger Agreement, the definitions in the Merger Agreement shall control.

Entire Consent. This Written Consent, together with the Merger Agreement and the other documents and instruments referenced herein, constitutes the full and complete written consent of the undersigned stockholders with respect to the matters set forth herein. This Written Consent supersedes any prior oral or written consent, if any, of the undersigned stockholders with respect to the subject matter hereof.

[Remainder of page intentionally left blank. Signature pages follow.]

SIGNATURE PAGES TO WRITTEN CONSENT

[Instruction to Drafter: Provide a separate signature block for each consenting stockholder or group of affiliated stockholders. Each block should capture the information specified below. Attach additional signature pages as necessary. Each signatory should execute a separate counterpart signature page. Where the stockholder is an entity, the authorized signatory must have the authority to bind such entity and should include their name and title.]

IN WITNESS WHEREOF, the undersigned stockholders have executed this Written Consent as of the respective dates set forth below.

STOCKHOLDER SIGNATURE PAGE

[INSERT FULL LEGAL NAME OF STOCKHOLDER]

By: ________

Name: [Insert name of authorized signatory]

Title: [Insert title, if entity]

Date: ________

Shares Held:

Total Shares Represented by This Consent: [Insert number]

Percentage of Outstanding Shares: [Insert percentage]%

[Replicate the above signature block for each additional consenting stockholder. Attach additional pages as needed.]

STOCKHOLDER SIGNATURE PAGE

[INSERT FULL LEGAL NAME OF STOCKHOLDER]

By: ________

Name: [Insert name of authorized signatory]

Title: [Insert title, if entity]

Date: ________

Shares Held:

Total Shares Represented by This Consent: [Insert number]

Percentage of Outstanding Shares: [Insert percentage]%

STOCKHOLDER SIGNATURE PAGE

[INSERT FULL LEGAL NAME OF STOCKHOLDER]

By: ________

Name: [Insert name of authorized signatory]

Title: [Insert title, if entity]

Date: ________

Shares Held:

Total Shares Represented by This Consent: [Insert number]

Percentage of Outstanding Shares: [Insert percentage]%

[Guidance on Required Signatories: The Company Secretary should confirm that the aggregate shares represented by all executed signature pages to this Written Consent equal or exceed a majority of the outstanding shares of capital stock of the Company entitled to vote thereon. Prior to certifying the Effective Date, the Company Secretary shall prepare a certificate setting forth (a) the total number of outstanding shares of capital stock of the Company entitled to vote, (b) the minimum number of shares required to constitute a majority thereof, and (c) the aggregate number of shares represented by the executed consents received, and shall attach such certificate to this Written Consent as described in the Secretary's Certification Page hereto.]

EXHIBIT A

MERGER AGREEMENT (Incorporated by Reference)

[Instruction: Attach as Exhibit A, or incorporate by reference, a complete copy of the Agreement and Plan of Merger, dated as of [Insert date], by and between [Insert full legal name of Parent] and the Company, together with all exhibits, schedules, and annexes thereto. If the Merger Agreement is incorporated by reference rather than physically attached, include the following statement:]

The Agreement and Plan of Merger, dated as of [Insert date], by and between [Insert full legal name of Parent] and the Company (the "Merger Agreement"), together with all exhibits, schedules, and annexes thereto, is hereby incorporated by reference in its entirety as if fully set forth herein. A complete copy of the Merger Agreement has been made available to each consenting stockholder and is on file at the principal offices of the Company. Each undersigned stockholder acknowledges that such stockholder has had the opportunity to review the Merger Agreement and all exhibits, schedules, and annexes thereto prior to executing this Written Consent.

SECRETARY'S CERTIFICATION PAGE

[Instruction: This page is to be completed by the Secretary or Assistant Secretary of the Company following receipt of sufficient consents. This certification should not be executed until the Secretary has confirmed that the aggregate shares represented by all executed signature pages equal or exceed the required majority.]

CERTIFICATE OF SECRETARY

I, [Insert name], [Secretary / Assistant Secretary] of [Insert full legal name of the Company], a Delaware corporation (the "Company"), do hereby certify, in connection with the Written Consent in Lieu of a Special Meeting of Stockholders of the Company, dated as of the date set forth below, as follows:

1. Outstanding Shares. As of [Insert record date / date of determination], there were [Insert number] shares of capital stock of the Company issued, outstanding, and entitled to vote on the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, consisting of:

(a) [Insert number] shares of Common Stock;

(b) [Insert number] shares of Series Seed Preferred Stock;

(d) [Insert number] shares of Series B Preferred Stock; and

(e) [Insert number] shares of Series C Preferred Stock.

2. Minimum Required Shares. The minimum number of shares of capital stock of the Company required to approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger, by written consent in lieu of a meeting pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation is [Insert number] shares, representing a majority of the outstanding shares of capital stock of the Company entitled to vote thereon.

3. Shares Consenting. Written consents to the resolutions set forth in the Written Consent described above have been duly executed and delivered to the Company by stockholders holding an aggregate of [Insert number] shares of capital stock of the Company (representing approximately [Insert percentage]% of the outstanding shares of capital stock of the Company entitled to vote thereon), which number exceeds the minimum number of shares required as set forth in paragraph 2 above.

4. Effective Date. Based on the foregoing, the Written Consent became effective on [Insert Effective Date], which is the date on which written consents signed by stockholders holding shares representing at least a majority of the outstanding shares of capital stock of the Company entitled to vote thereon were delivered to the Company.

5. Validity. I have reviewed each executed counterpart of the Written Consent and have confirmed that (a) each signature page appears to have been duly executed by the stockholder named therein or by a duly authorized representative of such stockholder, (b) the number of shares set forth on each signature page is consistent with the records of the Company, and (c) the aggregate number of shares represented by the executed consents is accurately stated in paragraph 3 above.

IN WITNESS WHEREOF, I have hereunto set my hand on the date indicated below.

________________________________________

Name: [Insert name]

Title: [Secretary / Assistant Secretary]

Date: [Insert date]

[END OF FORM OF WRITTEN CONSENT]

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FORM OF WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING OF STOCKHOLDERS OF [INSERT FULL LEGAL NAME OF TARGET COMPANY]
Action by Written Consent of the Stockholders Pursuant to Section 228 of the Delaware General Corporation Law
Note to Drafter: This is a standard-form written consent template. All bracketed fields are to be completed at the time of execution. The form should be generic, containing placeholders and instructional guidance rather than pre-filled answers. Illustrative examples within guidance text are generic and do not reflect the specific findings, conclusions, or details of any particular transaction. Remove all bracketed instructions and drafting notes prior to circulating a final execution version.
The undersigned, being holders of shares of capital stock of [Insert Full Legal Name of Target Company], a Delaware corporation (the "Company"), representing at least a majority of the outstanding shares of capital stock of the Company entitled to vote thereon, hereby consent in writing to the adoption of the following resolutions and the taking of the actions set forth herein, without a meeting, without prior notice, and without a vote, pursuant to Section 228 of the Delaware General Corporation Law (the "DGCL"). This Written Consent is being executed and delivered in accordance with, and in reliance upon, Section 228 of the DGCL and the applicable provisions of the Company's Certificate of Incorporation and Bylaws.
This Written Consent shall be effective as of the date on which written consents signed by holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon have been delivered to the Company (the "Effective Date"). Each undersigned stockholder has set forth such stockholder's date of execution in the applicable signature block appended hereto. The Secretary of the Company shall determine and certify the Effective Date upon receipt of written consents representing shares sufficient to satisfy the requisite voting threshold, in accordance with the procedures set forth herein and in Section 228 of the DGCL.
[Instruction: Insert date of execution by each signatory in the signature block. The Company Secretary shall determine and certify the Effective Date as described herein and in the Secretary's Certification Page attached hereto.]
RECITALS
WHEREAS, the Company is a corporation duly organized and existing under the laws of the State of Delaware, with its principal office located at [Insert principal office address of the Company]; and
WHEREAS, as of the date hereof, the authorized capital stock of the Company consists of [Insert authorized share description, including classes and series of capital stock (e.g., __ shares of Common Stock, par value $0.0001 per share ("Common Stock"); __ shares of Series Seed Preferred Stock, par value $0.0001 per share ("Series Seed Preferred Stock"); __ shares of Series A Preferred Stock, par value $0.0001 per share ("Series A Preferred Stock"); __ shares of Series B Preferred Stock, par value $0.0001 per share ("Series B Preferred Stock"); and __ shares of Series C Preferred Stock, par value $0.0001 per share ("Series C Preferred Stock"))], of which [Insert number] shares are issued and outstanding and entitled to vote on the matters set forth herein; and
WHEREAS, the Company has entered into that certain Agreement and Plan of Merger, dated as of [Insert date of execution of merger agreement] (as may be amended, restated, supplemented, or otherwise modified from time to time, the "Merger Agreement"), by and between the Company and [Insert full legal name of acquiring entity], a [Insert jurisdiction of organization] corporation ("Parent"), pursuant to which, among other things, the Company will merge with and into Parent (the "Merger"), with Parent surviving the Merger as the surviving corporation; and
WHEREAS, pursuant to the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each share of capital stock of the Company issued and outstanding immediately prior to the Effective Time (other than (i) shares held by Parent, the Company (as treasury shares), or any direct or indirect wholly owned subsidiary of Parent or the Company, and (ii) shares held by stockholders who have properly demanded and not withdrawn or otherwise forfeited their appraisal rights under Section 262 of the DGCL ("Dissenting Shares")) will be converted into the right to receive the merger consideration as set forth in the Merger Agreement, consisting of [Insert general description of consideration structure (e.g., a combination of cash and shares of common stock of Parent, allocated among the various classes and series of capital stock of the Company in accordance with the Company's Certificate of Incorporation and the Merger Agreement)], subject to the terms and conditions of the Merger Agreement; and
WHEREAS, in connection with the Merger, Parent has entered into that certain Contingent Value Rights Agreement, dated as of [Insert date], by and between Parent and [Insert full legal name of CVR trustee], as trustee (the "CVR Trustee") (the "Contingent Value Rights Agreement"), pursuant to which holders of Company capital stock may become entitled to receive additional contingent consideration upon the achievement of certain milestone events, as more fully described in the Merger Agreement and the Contingent Value Rights Agreement; and
WHEREAS, the Board of Directors of the Company (the "Board"), after careful consideration, including consideration of the opinion of [Insert name of financial advisor to the Company's board], the Company's independent financial advisor, to the effect that, as of the date of such opinion and based upon and subject to the assumptions, qualifications, limitations, and other matters set forth therein, the merger consideration to be received by the holders of capital stock of the Company pursuant to the Merger Agreement is fair, from a financial point of view, to such holders, has (a) determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to, and in the best interests of the Company and its stockholders, (b) approved and adopted the Merger Agreement and the transactions contemplated thereby, including the Merger, and (c) resolved to recommend that the stockholders of the Company approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger (the "Board Recommendation"); and
WHEREAS, pursuant to Section 251 of the DGCL and the Company's Certificate of Incorporation, as amended and restated to date, the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, requires the affirmative vote or written consent of the holders of a majority of the outstanding shares of capital stock of the Company entitled to vote thereon; and
WHEREAS, pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation and Bylaws, any action required or permitted to be taken at any annual or special meeting of stockholders of the Company 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; and
WHEREAS, the undersigned stockholders collectively hold shares of capital stock of the Company representing not less than a majority of the outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, and desire to take the actions set forth herein by written consent in lieu of a meeting of stockholders of the Company.
RESOLUTIONS
NOW, THEREFORE, BE IT RESOLVED, that the undersigned stockholders of the Company, representing not less than a majority of the outstanding shares of capital stock of the Company entitled to vote thereon, hereby adopt the following resolutions by written consent in lieu of a special meeting of stockholders:
1. Approval and Adoption of the Merger Agreement
RESOLVED, that the Merger Agreement, dated as of [Insert date of execution of merger agreement], by and between the Company and Parent, including all exhibits, schedules, annexes, and ancillary documents thereto, and the transactions contemplated thereby, including the Merger, be, and hereby are, approved and adopted in all respects.
2. Approval of the Merger
RESOLVED, that the merger of the Company with and into [Insert full legal name of Parent], with [Insert full legal name of Parent] as the surviving corporation of the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, be, and hereby is, approved in all respects.
3. Approval of Ancillary Agreements
RESOLVED, that, to the extent required by the Merger Agreement, applicable law, or otherwise deemed advisable by the Board or the officers of the Company, the execution, delivery, and performance of each of the ancillary agreements contemplated by the Merger Agreement, including without limitation [Insert names/descriptions of key ancillary agreements, e.g., the Contingent Value Rights Agreement, the Escrow Agreement, and the Stockholder Representative Agreement], and the consummation of the transactions contemplated thereby, be, and hereby are, approved and ratified in all respects.
4. Appointment and Confirmation of Stockholder Representative
RESOLVED, that [Insert full legal name of stockholder representative entity or individual] be, and hereby is, appointed and confirmed as the stockholder representative (the "Stockholder Representative") to act on behalf of the former stockholders of the Company in connection with and following the consummation of the Merger, with such powers, duties, and authority as set forth in the Stockholder Representative Agreement, dated as of [Insert date], and in the Merger Agreement, including without limitation the authority to:
(a) negotiate, resolve, compromise, and settle any and all indemnification claims, disputes, and other matters arising under or in connection with the Merger Agreement on behalf of the former stockholders;
(b) authorize, approve, and direct disbursements from any escrow fund, holdback amount, or expense fund established pursuant to the Merger Agreement or any ancillary agreement in connection therewith;
(c) administer all matters relating to the Contingent Value Rights Agreement, including the determination and verification of milestone events and the receipt and distribution of contingent consideration payments;
(d) execute and deliver on behalf of the former stockholders any amendments, waivers, consents, or modifications to the Merger Agreement, the Stockholder Representative Agreement, the Escrow Agreement, or any other ancillary agreement, in each case as contemplated by the applicable agreement;
(e) engage legal counsel, accountants, financial advisors, and other professionals as the Stockholder Representative may deem necessary or advisable in the performance of its duties;
(f) make, execute, acknowledge, and deliver all such other agreements, instruments, and documents, and to take all such other actions, as the Stockholder Representative may deem necessary, appropriate, or advisable to carry out its duties and responsibilities under the Merger Agreement and the Stockholder Representative Agreement; and
(g) take such other actions as are contemplated by or necessary to effectuate the transactions under the Merger Agreement and the ancillary agreements.
5. Authorization of Officers and Agents
RESOLVED, that the officers of the Company, and each of them acting alone (and with full power of substitution and delegation), be, and hereby are, authorized, empowered, and directed, in the name and on behalf of the Company, to execute and deliver all documents, instruments, agreements, and certificates, to pay all fees, costs, and expenses, and to take all such further actions as any such officer may deem necessary, appropriate, or advisable to carry out the intent and purposes of the foregoing resolutions, including without limitation:
(a) the preparation, execution, and filing of the Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the requirements of Section 251 of the DGCL;
(b) the preparation, execution, and filing of any and all other certificates, forms, reports, notices, and filings with any federal, state, local, or foreign governmental authority or regulatory body as may be required by applicable law in connection with the Merger;
(c) the execution and delivery of any closing certificates, officer's certificates, or secretary's certificates required by the Merger Agreement or any ancillary agreement;
(d) the execution and delivery of any amendments, supplements, or modifications to the Merger Agreement or any ancillary agreement as may be required or permitted thereunder; and
(e) such other actions as may be required or advisable to consummate the Merger and the other transactions contemplated by the Merger Agreement.
6. Ratification of Prior Actions
RESOLVED, that all actions heretofore taken by the Board, the officers of the Company, and their respective agents, designees, and representatives in connection with the negotiation, execution, delivery, and performance of the Merger Agreement and the transactions contemplated thereby, to the extent consistent with the foregoing resolutions, be, and hereby are, ratified, confirmed, and approved in all respects, nunc pro tunc to the dates such actions were taken.
7. Omnibus Authorization
RESOLVED, that the officers of the Company be, and hereby are, authorized and directed to take, or cause to be taken, all such further actions and to execute and deliver, or cause to be executed and delivered, all such further agreements, instruments, documents, certificates, and filings, in the name and on behalf of the Company, as any such officer may deem necessary, appropriate, or advisable in order to fully carry out the intent and accomplish the purposes of the foregoing resolutions, and that the execution and delivery by any such officer of any such agreement, instrument, document, certificate, or filing shall be conclusive evidence of such officer's determination that such action was necessary, appropriate, or advisable and of such officer's approval thereof.
WAIVER OF APPRAISAL RIGHTS
[Guidance to Drafter: Include this section only if consenting stockholders intend to affirmatively waive appraisal rights under Section 262 of the DGCL. Inclusion of this waiver is typically optional and may be omitted from the final execution version at the direction of legal counsel. If the waiver is not included, the bracketed alternative language regarding preservation of appraisal rights should be substituted.]
[Select one of the following alternatives:]
[Alternative A — Waiver of Appraisal Rights:] The undersigned stockholders hereby irrevocably waive any and all rights of appraisal under Section 262 of the DGCL or otherwise that such undersigned stockholders may have in connection with the Merger, including any right to demand appraisal of shares of capital stock of the Company held by such stockholders as of or prior to the Effective Time. Each undersigned stockholder acknowledges that, by executing this Written Consent and electing the waiver set forth in this paragraph, such stockholder will not be entitled to seek a judicial determination of the fair value of such stockholder's shares of capital stock of the Company under Section 262 of the DGCL.
[Alternative B — Preservation of Appraisal Rights:] Nothing contained in this Written Consent shall be deemed to constitute a waiver by any undersigned stockholder of any rights of appraisal that such stockholder may have under Section 262 of the DGCL or otherwise in connection with the Merger. Each undersigned stockholder reserves any and all rights that such stockholder may have under Section 262 of the DGCL with respect to such stockholder's shares of capital stock of the Company, subject to the terms, conditions, and procedures set forth in Section 262 of the DGCL.
GENERAL PROVISIONS
Effectiveness.  This Written Consent shall become effective upon the date on which it is signed by stockholders holding shares representing a majority of the outstanding shares of capital stock of the Company entitled to vote on the matters set forth herein, as determined and certified by the Secretary (or any Assistant Secretary) of the Company in accordance with Section 228 of the DGCL. For the avoidance of doubt, this Written Consent shall not become effective until such time as the requisite number of shares has been so consented and the Secretary (or Assistant Secretary) of the Company has received delivery of executed counterparts representing such shares.
Counterparts.  This Written Consent may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same instrument. Counterparts may be delivered by facsimile transmission or electronic transmission (including in portable document format (.pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act, as applicable), and any counterpart so delivered shall be deemed to have been duly and validly delivered and to be valid and effective for all purposes.
Revocability.  Any stockholder who has executed this Written Consent may revoke such consent by delivering a written revocation to the Secretary of the Company at any time prior to the time that written consents signed by the holders of a sufficient number of shares to take the action described herein have been filed with and received by the Secretary of the Company, in accordance with Section 228(c) of the DGCL. Any such revocation shall be effective only if received by the Secretary of the Company prior to the Effective Date. After the Effective Date, this Written Consent shall be irrevocable.
No Meeting Required
The undersigned stockholders hereby acknowledge and confirm that this Written Consent is being delivered pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation and Bylaws, and that no meeting of stockholders of the Company is required in connection herewith. The undersigned stockholders further acknowledge that no prior notice was required to be given, and no prior notice was given, to any stockholder of the Company in connection with the actions taken by this Written Consent, except as may be required following the effectiveness of this Written Consent pursuant to Section 228(e) of the DGCL. The Company shall provide prompt notice of the taking of the corporate actions set forth herein to those stockholders who have not consented in writing to such actions, in accordance with Section 228(e) of the DGCL.
Governing Law.  This Written Consent shall be governed by and construed in accordance with the 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.
Defined Terms.  Capitalized terms used but not otherwise defined in this Written Consent shall have the respective meanings ascribed to such terms in the Merger Agreement. In the event of any conflict between the definitions set forth in this Written Consent and those set forth in the Merger Agreement, the definitions in the Merger Agreement shall control.
Entire Consent.  This Written Consent, together with the Merger Agreement and the other documents and instruments referenced herein, constitutes the full and complete written consent of the undersigned stockholders with respect to the matters set forth herein. This Written Consent supersedes any prior oral or written consent, if any, of the undersigned stockholders with respect to the subject matter hereof.
[Remainder of page intentionally left blank. Signature pages follow.]
SIGNATURE PAGES TO WRITTEN CONSENT
[Instruction to Drafter: Provide a separate signature block for each consenting stockholder or group of affiliated stockholders. Each block should capture the information specified below. Attach additional signature pages as necessary. Each signatory should execute a separate counterpart signature page. Where the stockholder is an entity, the authorized signatory must have the authority to bind such entity and should include their name and title.]
IN WITNESS WHEREOF, the undersigned stockholders have executed this Written Consent as of the respective dates set forth below.
STOCKHOLDER SIGNATURE PAGE
[INSERT FULL LEGAL NAME OF STOCKHOLDER]
By: ________
Name: [Insert name of authorized signatory]
Title: [Insert title, if entity]
Date: ________
Shares Held:
Total Shares Represented by This Consent: [Insert number]
Percentage of Outstanding Shares: [Insert percentage]%
[Replicate the above signature block for each additional consenting stockholder. Attach additional pages as needed.]
STOCKHOLDER SIGNATURE PAGE
[INSERT FULL LEGAL NAME OF STOCKHOLDER]
By: ________
Name: [Insert name of authorized signatory]
Title: [Insert title, if entity]
Date: ________
Shares Held:
Total Shares Represented by This Consent: [Insert number]
Percentage of Outstanding Shares: [Insert percentage]%
STOCKHOLDER SIGNATURE PAGE
[INSERT FULL LEGAL NAME OF STOCKHOLDER]
By: ________
Name: [Insert name of authorized signatory]
Title: [Insert title, if entity]
Date: ________
Shares Held:
Total Shares Represented by This Consent: [Insert number]
Percentage of Outstanding Shares: [Insert percentage]%
[Guidance on Required Signatories: The Company Secretary should confirm that the aggregate shares represented by all executed signature pages to this Written Consent equal or exceed a majority of the outstanding shares of capital stock of the Company entitled to vote thereon. Prior to certifying the Effective Date, the Company Secretary shall prepare a certificate setting forth (a) the total number of outstanding shares of capital stock of the Company entitled to vote, (b) the minimum number of shares required to constitute a majority thereof, and (c) the aggregate number of shares represented by the executed consents received, and shall attach such certificate to this Written Consent as described in the Secretary's Certification Page hereto.]
EXHIBIT A
MERGER AGREEMENT (Incorporated by Reference)
[Instruction: Attach as Exhibit A, or incorporate by reference, a complete copy of the Agreement and Plan of Merger, dated as of [Insert date], by and between [Insert full legal name of Parent] and the Company, together with all exhibits, schedules, and annexes thereto. If the Merger Agreement is incorporated by reference rather than physically attached, include the following statement:]
The Agreement and Plan of Merger, dated as of [Insert date], by and between [Insert full legal name of Parent] and the Company (the "Merger Agreement"), together with all exhibits, schedules, and annexes thereto, is hereby incorporated by reference in its entirety as if fully set forth herein. A complete copy of the Merger Agreement has been made available to each consenting stockholder and is on file at the principal offices of the Company. Each undersigned stockholder acknowledges that such stockholder has had the opportunity to review the Merger Agreement and all exhibits, schedules, and annexes thereto prior to executing this Written Consent.
SECRETARY'S CERTIFICATION PAGE
[Instruction: This page is to be completed by the Secretary or Assistant Secretary of the Company following receipt of sufficient consents. This certification should not be executed until the Secretary has confirmed that the aggregate shares represented by all executed signature pages equal or exceed the required majority.]
CERTIFICATE OF SECRETARY
I, [Insert name], [Secretary / Assistant Secretary] of [Insert full legal name of the Company], a Delaware corporation (the "Company"), do hereby certify, in connection with the Written Consent in Lieu of a Special Meeting of Stockholders of the Company, dated as of the date set forth below, as follows:
1.  Outstanding Shares. As of [Insert record date / date of determination], there were [Insert number] shares of capital stock of the Company issued, outstanding, and entitled to vote on the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, consisting of:
(a) [Insert number] shares of Common Stock;
(b) [Insert number] shares of Series Seed Preferred Stock;
(c) [Insert number] shares of Series A Preferred Stock;
(d) [Insert number] shares of Series B Preferred Stock; and
(e) [Insert number] shares of Series C Preferred Stock.
2.  Minimum Required Shares. The minimum number of shares of capital stock of the Company required to approve and adopt the Merger Agreement and the transactions contemplated thereby, including the Merger, by written consent in lieu of a meeting pursuant to Section 228 of the DGCL and the Company's Certificate of Incorporation is [Insert number] shares, representing a majority of the outstanding shares of capital stock of the Company entitled to vote thereon.
3.  Shares Consenting. Written consents to the resolutions set forth in the Written Consent described above have been duly executed and delivered to the Company by stockholders holding an aggregate of [Insert number] shares of capital stock of the Company (representing approximately [Insert percentage]% of the outstanding shares of capital stock of the Company entitled to vote thereon), which number exceeds the minimum number of shares required as set forth in paragraph 2 above.
4.  Effective Date. Based on the foregoing, the Written Consent became effective on [Insert Effective Date], which is the date on which written consents signed by stockholders holding shares representing at least a majority of the outstanding shares of capital stock of the Company entitled to vote thereon were delivered to the Company.
5.  Validity. I have reviewed each executed counterpart of the Written Consent and have confirmed that (a) each signature page appears to have been duly executed by the stockholder named therein or by a duly authorized representative of such stockholder, (b) the number of shares set forth on each signature page is consistent with the records of the Company, and (c) the aggregate number of shares represented by the executed consents is accurately stated in paragraph 3 above.
IN WITNESS WHEREOF, I have hereunto set my hand on the date indicated below.
________________________________________
Name: [Insert name]
Title: [Secretary / Assistant Secretary]
Date: [Insert date]
[END OF FORM OF WRITTEN CONSENT]
Class/Series of Stock | Number of Shares
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
Class/Series of Stock | Number of Shares
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
Class/Series of Stock | Number of Shares
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]
[Insert class/series of stock] | [Insert number of shares]

FORM OF WRITTEN CONSENT IN LIEU OF A SPECIAL MEETING OF STOCKHOLDERS OF [INSERT FULL LEGAL NAME OF TARGET COMPANY]

RECITALS

RESOLUTIONS

WAIVER OF APPRAISAL RIGHTS

GENERAL PROVISIONS

SIGNATURE PAGES TO WRITTEN CONSENT

STOCKHOLDER SIGNATURE PAGE

STOCKHOLDER SIGNATURE PAGE

STOCKHOLDER SIGNATURE PAGE

EXHIBIT A

SECRETARY'S CERTIFICATION PAGE

CERTIFICATE OF SECRETARY

Record

Parties

Dates

Amounts