1018-00006 · Penterra Pharmaceuticals Corp · Closing

secretarys-certificate-penterra.docx DOCUMENT IP / Technology

9 / 39 ← → ✕

SECRETARY'S CERTIFICATE OF PENTERRA PHARMACEUTICALS CORP.

October 20, 2023

Re: Out-License of Compound PPC-4187 (Penteracitinib) to Meridian Bio Therapeutics Limited pursuant to that certain Exclusive License Agreement dated as of October 2, 2023 (the "License Agreement"), effective October 20, 2023

I, the undersigned, hereby certify that I am the duly elected, qualified, and acting Secretary of Penterra Pharmaceuticals Corp., a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), with Employer Identification Number 22-3948175, having its principal office at 400 Pharma Drive, Suite 800, Princeton, New Jersey 08540, and its registered office and registered agent for service of process in the State of Delaware at 1209 Orange Street, Wilmington, Delaware 19801, c/o Delaware Corporate Services Inc. The Company's common stock is listed on The Nasdaq Global Select Market under the ticker symbol "PNTR."

This Secretary's Certificate (this "Certificate") is delivered pursuant to the requirements of that certain Exclusive License Agreement, dated as of October 2, 2023 (the "License Agreement"), by and between the Company, as Licensor, and Meridian Bio Therapeutics Limited, a limited company organized under the laws of Hong Kong Special Administrative Region (Company Registration No. 2847631) ("Meridian" or "Licensee"), as Licensee, and the ancillary agreements entered into in connection therewith, including without limitation (i) the Escrow Agreement, dated as of October 2, 2023, among the Company, Meridian, and Velthorn National Bank, N.A., as Escrow Agent (the "Escrow Agreement"), (ii) the Active Pharmaceutical Ingredient Supply Agreement, dated as of the date hereof, between the Company and Meridian (the "Supply Agreement"), (iii) the Technology Transfer Agreement, dated as of the date hereof, between the Company and Meridian (the "Technology Transfer Agreement"), (iv) the Trademark License Agreement, dated as of the date hereof, between the Company and Meridian (the "Trademark License Agreement"), (v) the Quality Agreement, dated as of the date hereof, between the Company and Meridian (the "Quality Agreement"), and (vi) the Pharmacovigilance Agreement, dated as of the date hereof, between the Company and Meridian (the "Pharmacovigilance Agreement," and together with the License Agreement, the Escrow Agreement, the Supply Agreement, the Technology Transfer Agreement, the Trademark License Agreement, and the Quality Agreement, the "Transaction Documents").

In my capacity as Secretary and as custodian of the corporate records, minute books, and seal of the Company, and in connection with the closing of the transactions contemplated by the Transaction Documents on the date hereof (the "Closing Date"), I hereby certify as follows:

Section 1. Certification of Board Resolutions

Attached hereto as Exhibit A are true, correct, and complete copies of resolutions (the "Resolutions") duly adopted by the Board of Directors of Penterra Pharmaceuticals Corp. (the "Board") at a meeting of the Board duly called and held on July 18, 2023 (the "Board Meeting"), at which meeting a quorum of the directors was present and acting throughout the entirety of the proceedings. Due and proper notice of the Board Meeting was given to all directors in accordance with the Amended and Restated Bylaws of the Company, and the Board Meeting was conducted in all respects in conformity with the Certificate of Incorporation, the Amended and Restated Bylaws, and the General Corporation Law of the State of Delaware.

The Resolutions authorize and approve, among other things, the following actions:

(a) The out-licensing by the Company of the Company's proprietary compound designated PPC-4187 (International Nonproprietary Name: Penteracitinib), a selective Janus kinase 1 (JAK1) inhibitor being developed for the treatment of moderate-to-severe atopic dermatitis, to Meridian Bio Therapeutics Limited for the Asia-Pacific Territory (as defined in the License Agreement);

(b) The negotiation, execution, and delivery by the Company of the Exclusive License Agreement and all schedules thereto, including without limitation Schedule A (Licensed Patents), Schedule B (Licensed Know-How), Schedule C (Licensed Trademarks), Schedule D (Territory), Schedule E (Development Plan), and Schedule F (MFN Pricing Methodology);

(c) The negotiation, execution, and delivery by the Company of the Escrow Agreement with Meridian and Velthorn National Bank, N.A., as Escrow Agent, providing for the establishment and administration of an escrow account in connection with certain milestone payments under the License Agreement;

(d) The negotiation, execution, and delivery by the Company of each of the following ancillary transaction documents: (i) the Active Pharmaceutical Ingredient Supply Agreement, (ii) the Technology Transfer Agreement, (iii) the Trademark License Agreement, (iv) the Quality Agreement, and (v) the Pharmacovigilance Agreement;

(e) The grant of an exclusive license under the Licensed Patents, Licensed Know-How, and Licensed Trademarks in the Territory, which Territory consists of the People's Republic of China (including Hong Kong Special Administrative Region and Macau Special Administrative Region), Japan, the Republic of Korea, Australia, New Zealand, Singapore, Thailand, Malaysia, Indonesia, the Philippines, Vietnam, and Taiwan, for total consideration of up to One Hundred Twenty Million Dollars ($120,000,000);

(f) The authorization of any officer of the Company, including without limitation the Chief Executive Officer (Dr. Raymond K. Ostrowski), the General Counsel (Anita M. Fremont, Esq.), the Senior Vice President, Business Development (Leland J. Cho), and the Chief Financial Officer (Garrett T. Holloway), each acting individually and without the joinder of any other officer, to negotiate, execute, and deliver the License Agreement and all ancillary Transaction Documents on behalf of the Company, and to take all actions and execute all instruments, certificates, and documents as such officer may deem necessary, appropriate, or desirable to consummate and give full effect to the transactions contemplated by the Transaction Documents; and

(g) The engagement of Calderwood & Harkness LLP as outside legal counsel, Prescott Hale & Co. LLC as financial advisor, and Whitford & Cascade Insurance Brokers as patent prosecution counsel, each in connection with the negotiation, documentation, and consummation of the transactions contemplated by the Transaction Documents.

I further certify that the Resolutions have not been amended, modified, rescinded, or revoked in any respect since their adoption on July 18, 2023, and that the Resolutions remain in full force and effect as of the date hereof. No other resolutions have been adopted by the Board or by any committee of the Board that would in any way limit, restrict, modify, or supersede the authority granted in the Resolutions.

Section 2. Incumbency Certificate

I further certify that the following persons are the duly elected or appointed, qualified, and acting officers of Penterra Pharmaceuticals Corp. in the capacities set forth opposite their respective names as of the date hereof, and that the signatures set forth opposite their respective names are their true and genuine signatures:

I further certify that each such officer identified above held his or her respective office on October 2, 2023, the date of execution of the License Agreement, and continues to hold such office as of the date hereof, October 20, 2023, the Effective Date and Closing Date under the Transaction Documents. No such officer has resigned, been removed, or otherwise ceased to serve in such capacity during the period from October 2, 2023 through the date hereof.

Each such officer is authorized to execute and deliver, on behalf of the Company, the License Agreement and the ancillary Transaction Documents, and to take all actions and execute all further instruments, certificates, and documents as may be necessary or desirable in connection therewith, pursuant to the Board Resolutions described in Section 1 above.

Section 3. Certification of Organizational Documents

I further certify that attached hereto as Exhibit B is a true, correct, and complete copy of the Certificate of Incorporation of Penterra Pharmaceuticals Corp. (the "Certificate of Incorporation"), as originally filed with the Secretary of State of the State of Delaware, together with all certificates of amendment, certificates of designation, certificates of correction, and restated certificates of incorporation, if any, as filed with the Secretary of State of the State of Delaware through the date hereof. The Certificate of Incorporation, as so amended and restated, is in full force and effect as of the date hereof and has not been further amended, modified, restated, or supplemented since the date of the most recent amendment attached as part of Exhibit B.

I further certify that attached hereto as Exhibit C is a true, correct, and complete copy of the Amended and Restated Bylaws of Penterra Pharmaceuticals Corp. (the "Bylaws"), as currently in effect, together with all amendments thereto adopted by the Board of Directors or the stockholders of the Company through the date hereof. The Bylaws are in full force and effect as of the date hereof and have not been further amended, modified, restated, or supplemented since the date of the most recent amendment attached as part of Exhibit C.

Neither the Certificate of Incorporation nor the Bylaws has been further amended, modified, restated, or supplemented since the date of the most recent amendment attached hereto, and each such document remains in full force and effect as of the date hereof.

Section 4. Good Standing and Due Organization

I further certify that the Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. In connection with this certification, I note that a Certificate of Good Standing (also referred to as a Certificate of Status or Certificate of Existence) was issued by the Secretary of State of the State of Delaware with respect to the Company, dated October 12, 2023 (the "Good Standing Certificate"), a copy of which may be separately delivered to Meridian as an independent closing deliverable pursuant to the requirements of the License Agreement. As of the date hereof, the Company has not been notified of any change in its status or standing since the date of issuance of the Good Standing Certificate.

I further certify that the Company is duly qualified to do business as a foreign corporation and is in good standing in the State of New Jersey and in each other jurisdiction where the nature of its business activities or the character or location of the properties owned, leased, or operated by it requires such qualification, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company or its ability to perform its obligations under the Transaction Documents.

Section 5. No Conflicts; No Proceedings

I further certify that, to the best of my knowledge after due inquiry, the execution, delivery, and performance by the Company of the License Agreement and each of the ancillary Transaction Documents do not and will not:

(a) violate, conflict with, or result in a breach of any provision of the Certificate of Incorporation or the Bylaws of the Company;

(b) to the knowledge of the undersigned Secretary, violate, conflict with, or result in a breach of any law, statute, regulation, order, judgment, injunction, or decree of any court or governmental authority applicable to or binding upon the Company or any of its properties or assets; or

(c) to the knowledge of the undersigned Secretary, result in a default, give rise to any right of termination, cancellation, or acceleration, or require any consent or waiver under any material contract, agreement, indenture, mortgage, lease, license, permit, or other instrument to which the Company is a party or by which the Company or any of its properties or assets may be bound or affected.

I further certify that, as of the date hereof, no proceedings have been taken, filed, or commenced, and no proceedings are pending or, to the knowledge of the undersigned Secretary, threatened, for the dissolution, liquidation, insolvency, bankruptcy, reorganization, or winding up of the Company, whether voluntary or involuntary. No receiver, trustee, custodian, liquidator, or similar officer or fiduciary has been appointed for the Company or for any substantial part of its properties or assets, and no petition or application seeking any such appointment has been filed.

Section 6. Governing Law Acknowledgment

I acknowledge, for purposes of this Certificate, that the License Agreement and the related Transaction Documents are governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York.

I further acknowledge that, pursuant to Article 14 of the License Agreement, any and all disputes, controversies, or claims arising out of or relating to the License Agreement or the other Transaction Documents, including the breach, termination, or invalidity thereof, shall be finally settled by binding arbitration administered by the International Court of Arbitration of the International Chamber of Commerce (the "ICC"), seated in New York, New York, United States of America, before a panel of three (3) arbitrators appointed in accordance with the ICC Rules of Arbitration then in effect.

IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of October 20, 2023.

PENTERRA PHARMACEUTICALS CORP.

By: ________

Name: Catherine E. Langford

Title: Secretary

I, Dr. Raymond K. Ostrowski, Chief Executive Officer of Penterra Pharmaceuticals Corp., hereby confirm that Catherine E. Langford is the duly elected, qualified, and acting Secretary of the Company and is authorized to execute and deliver this Certificate on behalf of the Company. I further confirm the accuracy of the statements made herein regarding the incumbency and authority of the officers of the Company.

ATTESTATION:

By: ________

Name: Dr. Raymond K. Ostrowski

Title: Chief Executive Officer

Date: October 20, 2023

EXHIBIT A

RESOLUTIONS OF THE BOARD OF DIRECTORS OF PENTERRA PHARMACEUTICALS CORP.

Adopted July 18, 2023

The following resolutions were duly adopted by the Board of Directors (the "Board") of Penterra Pharmaceuticals Corp., a Delaware corporation (the "Company"), at a meeting of the Board duly called and held on July 18, 2023, at which a quorum of directors was present and acting throughout the entirety of the proceedings:

WHEREAS, the Company has developed and owns all right, title, and interest in and to the proprietary compound designated PPC-4187, a selective Janus kinase 1 (JAK1) inhibitor (proposed International Nonproprietary Name: Penteracitinib), including all intellectual property, know-how, data, and regulatory filings related thereto, which compound is being developed for the treatment of moderate-to-severe atopic dermatitis in adult and adolescent patients;

WHEREAS, the Company has completed its Phase IIb randomized, double-blind, placebo-controlled clinical trial of PPC-4187 (Study PPC-4187-201), which enrolled a total of four hundred and twenty (420) patients across thirty-seven (37) clinical sites in the United States, Canada, and the European Union, and the topline results of which, reported in June 2023, demonstrated that PPC-4187 achieved the primary endpoint of EASI-75 response at Week 16 with statistical significance (p<0.001 versus placebo across all dose groups), with a favorable safety and tolerability profile consistent with selective JAK1 inhibition;

WHEREAS, the Company's PPC-4187 program is supported by seven (7) patent families covering composition of matter, crystalline polymorphic forms, methods of use for the treatment of inflammatory and autoimmune conditions, pharmaceutical formulations, and manufacturing processes, including without limitation the following key issued patents: (i) U.S. Patent No. 11,234,567 (composition of matter, expiring August 12, 2037), (ii) U.S. Patent No. 11,345,678 (crystalline Form A, expiring November 3, 2038), and corresponding patents and patent applications in the Territory, including Chinese Patent No. ZL 2020 1 0456789.0, Japanese Patent No. 7,012,345, Korean Patent No. 10-2345678, and Australian Patent No. 2020234567;

WHEREAS, the Company has obtained a United States federal trademark registration for the proposed trade name PENTECLAR (U.S. Reg. No. 6,789,012) and has filed corresponding trademark applications in several jurisdictions within the proposed licensed territory;

WHEREAS, the Company has identified Meridian Bio Therapeutics Limited, a limited company organized under the laws of Hong Kong Special Administrative Region (Company Registration No. 2847631) ("Meridian"), as a prospective licensee possessing substantial commercialization capabilities, regulatory expertise, and established commercial infrastructure across the Asia-Pacific region, including in the People's Republic of China, Japan, the Republic of Korea, Australia, and Southeast Asia;

WHEREAS, the Company has engaged Prescott Hale & Co. LLC (Victoria R. Chen, Senior Managing Director) as its financial advisor in connection with the proposed transaction, and Prescott Hale & Co. LLC has conducted a comprehensive valuation analysis of the PPC-4187 asset and the proposed license terms and has rendered its opinion to the Board that the financial terms of the proposed transaction are fair, from a financial point of view, to the Company and its stockholders;

WHEREAS, the Board has reviewed and considered the terms of the proposed exclusive out-license of PPC-4187 to Meridian for the Asia-Pacific Territory for aggregate deal consideration of up to One Hundred Twenty Million Dollars ($120,000,000), structured as follows: (i) an upfront payment of Eighteen Million Dollars ($18,000,000) payable at closing; (ii) development milestone payments aggregating up to Thirty-Two Million Dollars ($32,000,000); (iii) regulatory milestone payments aggregating up to Twenty-Five Million Dollars ($25,000,000); and (iv) commercial milestone payments aggregating up to Forty-Five Million Dollars ($45,000,000), together with tiered royalties on annual aggregate net sales in the Territory at rates of eight percent (8%) on annual net sales up to the first tier threshold, eleven percent (11%) on annual net sales from the first tier threshold up to the second tier threshold, and fourteen percent (14%) on annual net sales above the second tier threshold, subject to a most favored nation pricing clause and comprehensive mutual indemnification provisions;

WHEREAS, the Board has reviewed the terms of the proposed Exclusive License Agreement and each of the ancillary transaction documents, including the Escrow Agreement, the API Supply Agreement, the Technology Transfer Agreement, the Trademark License Agreement, the Quality Agreement, and the Pharmacovigilance Agreement, and has determined, after careful deliberation and in the exercise of its business judgment, that the proposed transaction and the terms thereof are in the best interests of the Company and its stockholders;

NOW, THEREFORE, BE IT RESOLVED, that the Board hereby authorizes and approves the out-licensing of PPC-4187 (Penteracitinib) to Meridian on substantially the terms presented to the Board and described in the materials provided to the Board at this meeting, including the grant of an exclusive license under the Licensed Patents, Licensed Know-How, and Licensed Trademarks in the Territory for aggregate consideration of up to One Hundred Twenty Million Dollars ($120,000,000), and that the Board deems the Transaction to be advisable, fair, and in the best interests of the Company and its stockholders;

RESOLVED FURTHER, that any officer of the Company, including without limitation Dr. Raymond K. Ostrowski, Chief Executive Officer, Anita M. Fremont, Esq., General Counsel, Leland J. Cho, Senior Vice President, Business Development, and Garrett T. Holloway, Chief Financial Officer, each acting individually and without the need for joinder of any other officer, be, and each of them hereby is, authorized and empowered, in the name of and on behalf of the Company, to negotiate, finalize, execute, and deliver the Exclusive License Agreement and all schedules, exhibits, and attachments thereto, and to negotiate, finalize, execute, and deliver each of the ancillary transaction documents, including the Escrow Agreement, the API Supply Agreement, the Technology Transfer Agreement, the Trademark License Agreement, the Quality Agreement, and the Pharmacovigilance Agreement, in each case with such changes, modifications, amendments, and supplements as the officer executing the same shall approve, such approval to be conclusively evidenced by such officer's execution and delivery thereof;

RESOLVED FURTHER, that each of the aforementioned officers be, and each of them hereby is, authorized and empowered to take all actions, execute all instruments, agreements, certificates, and documents, and pay all expenses, fees, and costs as such officer, in his or her sole discretion, may deem necessary, appropriate, or desirable to carry out the purpose and intent of the foregoing resolutions and to consummate and give full effect to the transactions contemplated by the Transaction Documents;

RESOLVED FURTHER, that the Board hereby ratifies, confirms, and approves all actions heretofore taken by any officer, director, agent, or representative of the Company in furtherance of the transactions contemplated by the foregoing resolutions, including without limitation the engagement of Calderwood & Harkness LLP (Marcus Delgado, Responsible Partner) as outside legal counsel, Prescott Hale & Co. LLC (Victoria R. Chen, Senior Managing Director) as financial advisor, and Whitford & Cascade Insurance Brokers as patent prosecution counsel, and all actions taken by such persons in connection with the negotiation and preparation of the Transaction Documents; and

RESOLVED FURTHER, that any officer of the Company be, and each of them hereby is, authorized and empowered to take all such further actions and to execute and deliver all such further instruments, agreements, certificates, and documents as may be necessary or desirable to carry out the purposes and intent of the foregoing resolutions, the authorization of such actions, execution, and delivery to be conclusively evidenced by the taking of such actions or the execution and delivery of such instruments, agreements, certificates, or documents.

The foregoing is a true, correct, and complete copy of the Resolutions adopted by the Board of Directors of Penterra Pharmaceuticals Corp. at a meeting held on July 18, 2023.

EXHIBIT B

CERTIFICATE OF INCORPORATION OF PENTERRA PHARMACEUTICALS CORP.

True and correct copy of the Certificate of Incorporation of Penterra Pharmaceuticals Corp. as originally filed with the Secretary of State of the State of Delaware, together with all certificates of amendment, certificates of designation, certificates of correction, and restated certificates of incorporation filed therewith through the date hereof.

[Attached Behind]

EXHIBIT C

AMENDED AND RESTATED BYLAWS OF PENTERRA PHARMACEUTICALS CORP.

True and correct copy of the Amended and Restated Bylaws of Penterra Pharmaceuticals Corp. as currently in effect, together with all amendments thereto adopted by the Board of Directors or the stockholders of the Company through the date hereof.