SECRETARY'S CERTIFICATE OF PENTERRA PHARMACEUTICALS CORP.
Delivered in connection with that certain Stock Purchase Agreement, dated as of June 10, 2024, by and among Penterra Pharmaceuticals Corp., a Delaware corporation, Veridian Biosciences, Inc., a Delaware corporation, the Sellers identified therein, and David Ng, solely in his capacity as Stockholder Representative
Date: June 10, 2024
I. Introductory Recitals
I, Thomas F. Holbrook, do hereby certify that I am the duly elected, qualified, and acting General Counsel and Secretary of Penterra Pharmaceuticals Corp., a corporation duly organized and existing under the laws of the State of Delaware (the "Company" or "Buyer"), with its principal executive offices at 1100 Meridian Boulevard, Suite 400, Princeton, New Jersey 08540.
This Secretary's Certificate (this "Certificate") is being delivered in connection with, and pursuant to the requirements of, that certain Stock Purchase Agreement, dated as of June 10, 2024 (the "Agreement"), by and among Penterra Pharmaceuticals Corp. ("Buyer"), Veridian Biosciences, Inc., a corporation organized and existing under the laws of the State of Delaware (referred to herein as the "Target" or "Veridian"), the Sellers identified on the signature pages thereto (collectively, the "Sellers"), and David Ng, solely in his capacity as the Stockholder Representative (the "Stockholder Representative"). Pursuant to the Agreement, Buyer has agreed to acquire one hundred percent (100%) of the outstanding capital stock of Veridian Biosciences, Inc. for an aggregate purchase price of Nine Hundred Million Dollars ($900,000,000) in cash (the "Transaction"), subject to the terms and conditions set forth therein.
This Certificate is being delivered pursuant to the closing conditions set forth in Article VII of the Agreement and as required by the ancillary transaction documents executed and delivered in connection therewith, including, without limitation, the Escrow Agreement, the Transition Services Agreement, and the Side Letter re: Financing Cooperation Obligations.
In my capacity as General Counsel and Secretary of the Company, I have full access to, and have reviewed, the corporate books, records, minute books, and other organizational documents of Penterra Pharmaceuticals Corp. as maintained at the Company's principal executive offices and by its registered agent in the State of Delaware. I have made such examinations and inquiries as I have deemed necessary or appropriate to enable me to render the certifications set forth herein, including consultation with officers, directors, and advisors of the Company.
Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Agreement.
II. Good Standing and Organization
I hereby certify that Penterra Pharmaceuticals Corp. is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Delaware. The Company was originally incorporated on March 14, 2006, by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware.
The Company's registered agent for service of process in the State of Delaware is Capitol Corporate Services, Inc., located at 1675 South Ashbury Asset Advisors, Suite B, Dover, Delaware 19901. The Company has at all times since its incorporation maintained a registered agent and registered office in the State of Delaware as required by the Delaware General Corporation Law (the "DGCL").
The Company's shares of common stock are listed and traded on The Nasdaq Stock Market LLC under the ticker symbol "PPCA." The Company's federal Employer Identification Number is 22-3847561.
The Company has full corporate power and authority under the DGCL, its Certificate of Incorporation, and its Bylaws to execute and deliver the Agreement and each of the ancillary transaction documents to which the Company is a party, to perform its obligations thereunder, and to consummate the transactions contemplated thereby. The Company has been duly qualified to transact business as a foreign corporation and is in good standing in each jurisdiction where the nature of its business or the ownership or leasing of its properties requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company's ability to consummate the Transaction.
III. Certification of Certificate of Incorporation
I hereby certify that attached hereto as Exhibit A is a true, correct, and complete copy of the Certificate of Incorporation of Penterra Pharmaceuticals Corp., as amended, restated, supplemented, or otherwise modified through the date hereof (including all certificates of amendment, certificates of designation, and certificates of correction filed with the Secretary of State of the State of Delaware from and after the date of original incorporation), and as currently in full force and effect as of the date of this Certificate.
The Certificate of Incorporation attached as Exhibit A was duly filed with, and accepted for filing by, the Secretary of State of the State of Delaware in accordance with the provisions of the DGCL. No amendments to the Certificate of Incorporation have been filed with the Secretary of State of the State of Delaware, or authorized by the Board of Directors or the stockholders of the Company, since the date of the most recent amendment reflected in the copy attached as Exhibit A. No proceedings to amend, restate, or otherwise modify the Certificate of Incorporation are pending or, to the knowledge of the undersigned, contemplated as of the date hereof.
IV. Certification of Bylaws
I hereby certify that attached hereto as Exhibit B is a true, correct, and complete copy of the Bylaws of Penterra Pharmaceuticals Corp., as amended, restated, supplemented, or otherwise modified through the date hereof, and as currently in full force and effect as of the date of this Certificate.
No amendments to the Bylaws have been adopted by the Board of Directors or the stockholders of the Company since the date of the most recent amendment reflected in the copy attached as Exhibit B. No proceedings to amend, restate, or otherwise modify the Bylaws are pending or, to the knowledge of the undersigned, contemplated as of the date hereof. The Bylaws attached as Exhibit B are consistent with and do not conflict with the Certificate of Incorporation of the Company.
V. Certification of Board Resolutions
I hereby certify that attached hereto as Exhibit C is a true, correct, and complete copy of the resolutions (the "Resolutions") duly adopted by the Board of Directors of Penterra Pharmaceuticals Corp. on June 10, 2024, in connection with the Transaction.
The Resolutions were duly adopted at a meeting of the Board of Directors duly called and held in accordance with the Certificate of Incorporation, the Bylaws, and the DGCL, at which a quorum of the Board of Directors was present and acting throughout, or, alternatively, by unanimous written consent of the Board of Directors in lieu of a meeting, as permitted by Section 141(f) of the DGCL, by the Certificate of Incorporation, and by the Bylaws. Proper notice of such meeting was given to all directors entitled to receive such notice, or such notice was duly waived by each director who did not receive the same, in accordance with the Bylaws and the DGCL.
The Resolutions authorized the following corporate actions, among others:
(a) The execution and delivery by the Company of the Stock Purchase Agreement, dated as of June 10, 2024, by and among Penterra Pharmaceuticals Corp., Veridian Biosciences, Inc., the Sellers identified therein, and David Ng as Stockholder Representative, providing for the acquisition by the Company of one hundred percent (100%) of the issued and outstanding capital stock of Veridian Biosciences, Inc. for an aggregate purchase price of Nine Hundred Million Dollars ($900,000,000) in cash, subject to customary adjustments for working capital, indebtedness, transaction expenses, and cash as set forth in the Agreement;
(b) The execution and delivery by the Company of the Escrow Agreement (the "Escrow Agreement") by and among Penterra Pharmaceuticals Corp., Fidelis National Escrow Corp., as escrow agent (the "Escrow Agent"), and David Ng, solely in his capacity as Stockholder Representative, providing for (i) the establishment of an indemnification escrow fund in the amount of One Hundred Eighty Million Dollars ($180,000,000), representing twenty percent (20%) of the aggregate purchase price, to secure the indemnification obligations of the Sellers under the Agreement, and (ii) the establishment of a stockholder representative expense fund in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000) for the purpose of funding the costs and expenses incurred by the Stockholder Representative in performing his duties under the Agreement and the Escrow Agreement;
(c) The execution and delivery by the Company of all ancillary transaction documents contemplated by the Agreement, including, without limitation, (i) the Transition Services Agreement between the Company and Veridian, (ii) the Side Letter re: Financing Cooperation Obligations, and (iii) such other agreements, instruments, certificates, and documents as may be necessary, desirable, or advisable in connection with the consummation of the Transaction;
(d) The authorization of Dr. Anand Rajagopal, Chief Executive Officer of the Company, and Thomas F. Holbrook, General Counsel and Secretary of the Company, each acting individually and with full authority (and each, an "Authorized Signatory"), to execute and deliver the Agreement and all ancillary transaction documents to which the Company is a party, and to execute and deliver all certificates, instruments, notices, and other documents required or contemplated to be delivered by the Company in connection with the Transaction, with such modifications, amendments, and supplements as either Authorized Signatory may approve in his or her sole discretion, such approval to be conclusively evidenced by such Authorized Signatory's execution thereof; and
(e) The authorization of the officers of the Company, and each of them acting singly, to take all such further actions and to execute and deliver all such further instruments, agreements, certificates, and documents as any of them may deem necessary or advisable to carry out the intent and accomplish the purposes of the foregoing resolutions, and to consummate the transactions contemplated by the Agreement and the ancillary transaction documents.
I further certify that the Resolutions have not been amended, modified, revoked, rescinded, or superseded in any respect and remain in full force and effect as of the date hereof. No other resolutions have been adopted by the Board of Directors of the Company, or by any committee thereof, that would in any way amend, modify, supersede, conflict with, or limit the authority granted by the Resolutions.
VI. Incumbency and Authority of Officers
I hereby certify that the following persons are the duly elected or appointed, qualified, and acting officers of Penterra Pharmaceuticals Corp. holding the offices 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:
Each of the foregoing officers was duly holding the office set forth opposite his or her name on June 10, 2024, the date of execution and delivery of the Agreement and the ancillary transaction documents. Each of the foregoing officers has been duly elected or appointed to such office in accordance with the Certificate of Incorporation, the Bylaws, and the DGCL, and no proceedings to remove, suspend, or otherwise limit the authority of any such officer are pending or, to the knowledge of the undersigned, contemplated.
Without limiting the generality of the foregoing, I further certify that Dr. Anand Rajagopal, Chief Executive Officer, and Thomas F. Holbrook, General Counsel and Secretary, are each duly authorized to execute and deliver, on behalf of Penterra Pharmaceuticals Corp., the Agreement and each of the ancillary transaction documents to which the Company is a party, and to take all actions contemplated thereby, in each case as authorized by the Resolutions. Any document executed by either of the foregoing Authorized Signatories on behalf of the Company in connection with the Transaction shall be valid and binding upon the Company in accordance with its terms.
VII. Certification Regarding Chair of the Board of Directors
I hereby certify that Margaret Liu Whitfield is the duly elected and acting Chair of the Board of Directors of Penterra Pharmaceuticals Corp. Ms. Whitfield has served as Chair of the Board of Directors continuously since her election to such position by the Board of Directors.
Ms. Whitfield presided over the meeting of the Board of Directors at which the Resolutions were adopted (or, if the Resolutions were adopted by unanimous written consent in lieu of a meeting, Ms. Whitfield signed such written consent in her capacity as a director and Chair of the Board of Directors, as applicable). The meeting at which the Resolutions were adopted (or the written consent by which the Resolutions were adopted) was conducted in all respects in accordance with the Certificate of Incorporation, the Bylaws, and the DGCL.
VIII. No Conflict; No Proceedings
I hereby certify that, based upon my review of the Certificate of Incorporation and Bylaws of the Company in connection with the Transaction, the execution, delivery, and performance by the Company of the Agreement and the ancillary transaction documents, and the consummation of the transactions contemplated thereby, do not and will not (a) conflict with or violate the Certificate of Incorporation or the Bylaws of Penterra Pharmaceuticals Corp., (b) conflict with or violate any resolution adopted by the Board of Directors or any committee thereof that is currently in effect, or (c) result in the creation or imposition of any lien, charge, or encumbrance on any of the assets or properties of the Company pursuant to the Certificate of Incorporation or Bylaws.
To the knowledge of the undersigned Secretary, after due inquiry, no proceedings for the dissolution, liquidation, receivership, conservatorship, or winding up of Penterra Pharmaceuticals Corp. have been commenced, are pending, or are contemplated, whether voluntary or involuntary, under the DGCL or any other applicable law, and no order, judgment, or decree has been entered by any court or governmental authority directing or providing for the dissolution, liquidation, or winding up of the Company.
IX. Further Certifications
I further certify that all corporate action on the part of Penterra Pharmaceuticals Corp. and its Board of Directors, officers, and stockholders necessary for the authorization, execution, delivery, and performance of the Agreement and the ancillary transaction documents, and for the consummation of the transactions contemplated thereby, has been duly and validly taken in accordance with the Certificate of Incorporation, the Bylaws, and the DGCL.
No further corporate approvals, consents, authorizations, or other actions by the Board of Directors, any committee of the Board of Directors, or the stockholders of the Company are required in connection with the Company's execution, delivery, and performance of the Agreement and the ancillary transaction documents or the consummation of the transactions contemplated thereby. Without limiting the foregoing, the Transaction does not require the approval of the stockholders of the Company under the DGCL, the Certificate of Incorporation, the Bylaws, or the applicable rules and regulations of The Nasdaq Stock Market LLC.
X. Reliance
This Certificate is being furnished and delivered for the benefit of Veridian Biosciences, Inc., the Sellers, and David Ng, solely in his capacity as Stockholder Representative, and their respective successors and permitted assigns, each of whom is entitled to rely upon the certifications and representations contained herein in connection with the closing of the Transaction and the delivery of the Agreement and the ancillary transaction documents.
The undersigned is aware that Zalcourt Archer & Cole LLP, counsel to Veridian Biosciences, Inc. and the Sellers, may rely upon this Certificate in connection with the delivery of any legal opinions rendered by such firm in connection with the transactions contemplated by the Agreement, and such firm is hereby authorized to so rely. Nothing in this Certificate shall be deemed to expand or limit any rights or remedies of any party under the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Secretary's Certificate as of the 10th day of June, 2024.
________________________________________
Thomas F. Holbrook General Counsel and Secretary Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, New Jersey 08540
Counter-Certification of Secretary's Incumbency
The undersigned, Dr. Anand Rajagopal, Chief Executive Officer of Penterra Pharmaceuticals Corp., a Delaware corporation, hereby certifies that Thomas F. Holbrook is the duly elected, qualified, and acting General Counsel and Secretary of Penterra Pharmaceuticals Corp. and held such office on June 10, 2024, the date of the foregoing Secretary's Certificate. Mr. Holbrook is duly authorized to execute and deliver the foregoing Secretary's Certificate on behalf of the Company, and the signature appearing on such Certificate is the genuine signature of Thomas F. Holbrook.
This counter-certification is delivered as of the 10th day of June, 2024.
________________________________________
Dr. Anand Rajagopal Chief Executive Officer Penterra Pharmaceuticals Corp. 1100 Meridian Boulevard, Suite 400 Princeton, New Jersey 08540
EXHIBIT A
Certificate of Incorporation of Penterra Pharmaceuticals Corp.
(as amended to date and currently in effect)
Attached hereto is a true, correct, and complete copy of the Certificate of Incorporation of Penterra Pharmaceuticals Corp., as filed with the Secretary of State of the State of Delaware, together with all certificates of amendment, certificates of designation, and certificates of correction filed from and after the date of original incorporation through the date hereof. Penterra Pharmaceuticals Corp. is a corporation organized under the Delaware General Corporation Law.
[Certificate of Incorporation and all amendments attached hereto]
EXHIBIT B
Bylaws of Penterra Pharmaceuticals Corp.
(as amended to date and currently in effect)
Attached hereto is a true, correct, and complete copy of the Bylaws of Penterra Pharmaceuticals Corp., as amended, restated, supplemented, or otherwise modified through the date hereof and currently in full force and effect.
[Bylaws and all amendments attached hereto]
EXHIBIT C
Resolutions of the Board of Directors of Penterra Pharmaceuticals Corp.
Adopted June 10, 2024
Attached hereto is a true, correct, and complete copy of the Resolutions of the Board of Directors of Penterra Pharmaceuticals Corp. dated June 10, 2024, authorizing, among other things:
(a) The execution and delivery of the Stock Purchase Agreement for the acquisition of one hundred percent (100%) of the issued and outstanding capital stock of Veridian Biosciences, Inc. for an aggregate purchase price of Nine Hundred Million Dollars ($900,000,000);
(b) The execution and delivery of the Escrow Agreement with Fidelis National Escrow Corp. as Escrow Agent, providing for (i) an indemnification escrow fund of One Hundred Eighty Million Dollars ($180,000,000) and (ii) a stockholder representative expense fund of Two Million Five Hundred Thousand Dollars ($2,500,000);
(c) The execution and delivery of all ancillary transaction documents, including the Transition Services Agreement, the Side Letter re: Financing Cooperation Obligations, and all other agreements contemplated by the Stock Purchase Agreement;
(d) The authorization of Dr. Anand Rajagopal, Chief Executive Officer, and Thomas F. Holbrook, General Counsel and Secretary, each as an Authorized Signatory on behalf of the Company; and
(e) The taking of all such further actions as may be necessary or advisable in connection with the consummation of the transactions.
[Resolutions attached hereto]
| Name | Title | Signature |
| Dr. Anand Rajagopal | Chief Executive Officer | ________ |
| Catherine M. Burgess | Chief Financial Officer | ________ |
| Thomas F. Holbrook | General Counsel and Secretary | ________ |
| Natalie Reiner | Senior Vice President, Corporate Development | ________ |