CALDERWOOD & HARKNESS LLP Attorneys at Law
June 10, 2024
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT
FORM OF OFFICER'S CERTIFICATE OF BUYER
PENTERRA PHARMACEUTICALS CORP.
Delivered Pursuant to Section [__] of the Stock Purchase Agreement
This Form of Officer's Certificate (this "Certificate") is to be delivered pursuant to Section [Insert applicable SPA section reference] of that certain Stock Purchase Agreement, dated as of [Insert date of SPA] (as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Agreement"), by and among [Insert Buyer full legal name], [Insert Target/Company full legal name], the Sellers identified therein, and [Insert Stockholder Representative name], as Stockholder Representative (the "Stockholder Representative").
INSTRUCTION TO EXECUTING OFFICER: This certificate is to be executed and delivered at the Closing by a duly authorized officer of Buyer. All bracketed fields must be completed prior to execution. Capitalized terms used but not defined herein shall have the respective meanings ascribed to such terms in the Agreement. This form should be reviewed and approved by deal counsel prior to execution to confirm that all certifications are accurate and consistent with the terms of the Agreement as in effect on the Closing Date, including any amendments, waivers, or modifications executed between signing and closing.
OFFICER'S CERTIFICATE OF BUYER
RECITALS
[Insert name], the undersigned, hereby certifies that [he/she] is the [Insert title, e.g., Chief Executive Officer, Chief Financial Officer, General Counsel] of [Insert Buyer full legal name], a [Insert state of incorporation] corporation (the "Buyer"), and that [he/she] is duly authorized to execute and deliver this Certificate on behalf of the Buyer.
Reference is made to that certain Stock Purchase Agreement, dated as of [Insert SPA date] (the "Agreement"), by and among the Buyer, [Insert Company full legal name], a [Insert state of incorporation] corporation (the "Company"), the Sellers party thereto (collectively, the "Sellers"), and [Insert Stockholder Representative name], in [his/her] capacity as Stockholder Representative (the "Stockholder Representative"). The Agreement provides, among other things, for the purchase by the Buyer of all of the issued and outstanding capital stock of the Company from the Sellers, upon the terms and subject to the conditions set forth therein.
The undersigned is a duly authorized officer of the Buyer and is delivering this Certificate on behalf of the Buyer in satisfaction of the condition to the obligations of the Sellers to consummate the transactions contemplated by the Agreement set forth in Section [Insert section reference, e.g., § 7.3(_)] of the Agreement. The undersigned has reviewed the Agreement and is familiar with its terms, and has made or caused to be made such investigations and inquiries as the undersigned has deemed necessary or appropriate in connection with the certifications set forth herein.
Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Agreement.
The undersigned hereby certifies to the Sellers and the Stockholder Representative, on behalf of the Buyer and not in any individual capacity, as follows:
SECTION 1: CERTIFICATION OF REPRESENTATIONS AND WARRANTIES
1.1 Bring-Down of Representations and Warranties
The representations and warranties of the Buyer contained in Article [Insert Article number] of the Agreement are true and correct in all material respects as of the date of the Agreement and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date; provided, however, that (a) with respect to those representations and warranties of the Buyer contained in Article [Insert Article number] of the Agreement that are qualified by "materiality," "Material Adverse Effect," or words of similar import, such representations and warranties are true and correct in all respects (without giving effect to any such materiality, Material Adverse Effect, or similar qualification contained therein) as of the date of the Agreement and as of the Closing Date with the same force and effect as though such representations and warranties had been made on and as of the Closing Date, and (b) with respect to those representations and warranties of the Buyer that by their terms expressly speak as of a specified date or period of time, such representations and warranties are true and correct (subject to the materiality qualifications set forth in the preceding clauses (a) and (b), as applicable) as of such specified date or period of time.
INSTRUCTION: [Insert applicable bring-down standard from the Agreement. The standard set forth above is illustrative only. The precise bring-down standard must match the language of the applicable closing condition in the Agreement (e.g., Section 7.3). If the Agreement provides for an alternative standard — such as "true and correct in all respects except where the failure to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Buyer" or "a material adverse effect on the Buyer's ability to consummate the transactions contemplated by the Agreement" — the language of this Section 1.1 must be revised accordingly. Deal counsel should confirm the precise formulation prior to execution.]
No event, circumstance, change, development, or condition has occurred between the date of the Agreement and the Closing Date that, individually or in the aggregate, has resulted in or would reasonably be expected to result in, a material adverse effect on the ability of the Buyer to consummate the transactions contemplated by the Agreement or to perform its obligations thereunder.
SECTION 2: CERTIFICATION OF COMPLIANCE WITH COVENANTS
2.1 Performance of Covenants and Obligations
The Buyer has performed or complied in all material respects with all of the covenants, agreements, and obligations required to be performed or complied with by the Buyer under the Agreement at or prior to the Closing Date. Without limiting the generality of the foregoing, the Buyer has duly and timely satisfied all of its obligations under the Agreement with respect to the delivery of the Closing consideration, the execution and delivery of all ancillary agreements and instruments required to be executed and delivered by the Buyer at or prior to the Closing, and the taking of all corporate and other actions required to be taken by the Buyer in connection with the consummation of the transactions contemplated by the Agreement.
INSTRUCTION: The covenant compliance standard set forth above ("in all material respects") is illustrative. The precise standard must mirror the language of the applicable closing condition section of the Agreement. If the Agreement employs a different standard for the bring-down of covenant compliance (e.g., compliance "in all respects" or compliance "in all material respects, except where the failure to so perform or comply has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Buyer"), this Section 2.1 must be revised accordingly. Deal counsel should confirm the precise formulation prior to execution.
SECTION 3: NO LEGAL IMPEDIMENT
INSTRUCTION: This Section 3 is optional and should be included only if the applicable closing condition section of the Agreement requires the Buyer to certify the absence of legal impediments to the Buyer's consummation of the Closing. If such a certification is not required by the Agreement, this Section 3 may be deleted in its entirety. Deal counsel should review the Agreement to confirm whether this certification is required.
[If applicable per the Agreement, include the following:]
As of the Closing Date, no temporary restraining order, preliminary or permanent injunction, cease and desist order, or other order, decree, or ruling issued by any court of competent jurisdiction or any governmental authority, and no statute, law, rule, or regulation enacted, promulgated, or deemed applicable by any governmental authority, is in effect that (a) prevents, enjoins, restrains, prohibits, or makes illegal the consummation of the transactions contemplated by the Agreement by the Buyer, (b) imposes material limitations on the ability of the Buyer to consummate the transactions contemplated by the Agreement, or (c) requires the divestiture by the Buyer of any material assets or businesses of the Company or its Subsidiaries as a condition to the consummation of the transactions contemplated by the Agreement.
[If not applicable per the Agreement, delete this Section 3.]
SECTION 4: ADDITIONAL CERTIFICATIONS
INSTRUCTION: This Section 4 is a placeholder for any additional certifications that may be required by the Agreement to be included in the Buyer's officer's certificate delivered at Closing. Examples of additional certifications that may be required include, but are not limited to:
• Solvency of the Buyer (immediately after giving effect to the Closing and the transactions contemplated by the Agreement)
• Absence of bankruptcy, insolvency, reorganization, receivership, or similar proceedings involving the Buyer
• Availability of financing sufficient to pay the aggregate Closing consideration
• Confirmation that all regulatory approvals required to be obtained by the Buyer have been obtained and remain in full force and effect
• Confirmation that the Buyer's board of directors has duly authorized the execution, delivery, and performance of the Agreement and all ancillary documents
Deal counsel should review the closing deliverables sections (including, without limitation, Section [Insert section reference] and any related schedules or exhibits) of the Agreement to determine whether any additional certifications are required in this Certificate. If no additional certifications are required, this Section 4 may be deleted in its entirety or replaced with a notation that no additional certifications are applicable.
[Insert any additional certifications required by the Agreement, or note "Intentionally Omitted" if no additional certifications are required.]
SECTION 5: RELIANCE AND DELIVERY
This Certificate is being delivered by the undersigned on behalf of the Buyer in satisfaction of the conditions to the obligations of the Sellers to consummate the Closing set forth in Section [Insert section reference] of the Agreement, and for no other purpose. The undersigned acknowledges and agrees that the Sellers and the Stockholder Representative are entitled to rely upon the certifications and statements set forth in this Certificate in connection with the consummation of the transactions contemplated by the Agreement, and that such reliance is reasonable under the circumstances.
This Certificate is being delivered as of the Closing Date, which is [Insert Closing Date]. The certifications and statements set forth herein are made and given as of the Closing Date and, except as otherwise expressly set forth herein, speak only as of the Closing Date.
Nothing in this Certificate shall be deemed to limit, modify, or otherwise affect (a) any representation, warranty, covenant, agreement, or obligation of the Buyer set forth in the Agreement, (b) any right or remedy of the Sellers or the Stockholder Representative under the Agreement, or (c) any other certificate, instrument, or document delivered at the Closing pursuant to the Agreement. This Certificate is not intended to, and shall not, create any rights in any Person other than the Sellers and the Stockholder Representative, except as expressly provided in the Agreement.
The undersigned is delivering this Certificate in [his/her] capacity as a duly authorized officer of the Buyer and not in any personal or individual capacity, and the undersigned shall have no personal liability with respect to the certifications and statements made herein, except to the extent of any fraud or intentional misrepresentation by the undersigned.
[Signature Page Follows]
[SIGNATURE PAGE TO OFFICER'S CERTIFICATE OF BUYER]
IN WITNESS WHEREOF, the undersigned has executed and delivered this Officer's Certificate as of the date set forth below.
[INSERT BUYER FULL LEGAL NAME]
By: ________
Name: [Insert name of authorized officer]
Title: [Insert title of authorized officer]
Date: [Insert Closing Date]
INSTRUCTION: The certifying officer should be a senior officer of the Buyer authorized by the applicable board resolutions (or equivalent governing authority resolutions) to deliver closing certificates and other documents on behalf of the Buyer at the Closing. Prior to execution, deal counsel should confirm that:
1. The certifying officer has been duly authorized by the Buyer's board of directors (or equivalent governing body) to execute and deliver this Certificate, as evidenced by the board resolutions attached to or referenced in the secretary's certificate delivered at the Closing.
2. The certifying officer's name and title are accurately stated and are consistent with the board resolutions and the secretary's certificate.
3. The certifying officer has reviewed the Agreement and is familiar with the representations, warranties, covenants, agreements, and obligations of the Buyer thereunder that are the subject of the certifications made in this Certificate.
4. The certifying officer has made or caused to be made such investigations and inquiries as are reasonably necessary to support the certifications and statements set forth in this Certificate.
FORMATTING AND USAGE INSTRUCTIONS (Internal — Calderwood & Harkness LLP — Not for Execution)
The following instructions are for the use of deal counsel at Calderwood & Harkness LLP and counsel to the Buyer in preparing this Certificate for execution at Closing. These instructions are not a part of the Certificate itself and should be removed from the final execution copy prior to delivery.
1. Form Document. This is a form document to be held in the closing deliverables set and completed only at the time of Closing or immediately prior thereto. It should not be circulated in executed form prior to the Closing Date.
2. Bracketed Fields. All bracketed fields (e.g., "[Insert ...]") must be filled in with the applicable information from the executed Agreement (including any amendments, waivers, or modifications thereto) and the facts as of the Closing Date. No bracketed fields should remain in the execution copy.
3. Bring-Down and Covenant Compliance Standards. The bring-down standard (Section 1.1) and covenant compliance standard (Section 2.1) must precisely mirror the language of the applicable closing condition sections in the Agreement. Any deviation between the language of this Certificate and the language of the Agreement could result in a challenge to the sufficiency of this Certificate as a closing deliverable. Deal counsel should perform a word-for-word comparison of the certification language in this Certificate against the applicable provisions of the Agreement prior to execution.
4. Optional Sections. Sections 3 and 4 are optional and should be included only if the applicable closing condition sections of the Agreement require the corresponding certifications. If not required, these sections should be deleted from the execution copy. If Section 3 or Section 4 is deleted, the remaining sections should be renumbered accordingly.
5. Pre-Execution Review. This form should be reviewed by deal counsel prior to execution to ensure consistency with any amendments, waivers, modifications, or supplements to the Agreement executed or delivered between signing and closing. In particular, deal counsel should confirm that:
(a) The bring-down standard has not been modified by any amendment to the Agreement;
(b) No additional covenants or obligations of the Buyer have been added by amendment that would be covered by the covenant compliance certification;
(c) All regulatory approvals, consents, and other conditions precedent to the Buyer's obligations have been satisfied or duly waived;
(d) The factual matters certified in this Certificate are accurate as of the Closing Date; and
(e) The form and substance of this Certificate are consistent with any comments or requirements communicated by counsel to the Sellers or the Stockholder Representative during the closing process.
6. Copies and Distribution. Copies of this executed Certificate are to be delivered to (i) the Sellers (or their designated representative or counsel), (ii) the Stockholder Representative (or [his/her] designated counsel), and (iii) retained in the Buyer's closing binder and the firm's deal file. If the Agreement requires delivery to any escrow agent, paying agent, or other third party, additional copies should be prepared and delivered accordingly.
7. Retention. A copy of the executed Certificate, together with copies of the Agreement and all ancillary documents, should be retained in the Calderwood & Harkness LLP engagement file for a period consistent with the firm's document retention policies and any applicable statutes of limitations under the Agreement.
8. Coordination. The preparation and execution of this Certificate should be coordinated with the preparation and execution of all other closing deliverables of the Buyer under the Agreement, including without limitation the secretary's certificate, good standing certificates, FIRPTA certificates (if applicable), and any ancillary agreements or instruments to be executed and delivered at the Closing.
End of Form