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1、This sample document is the work product of a coalition of attorneys who specialize in venture capital financings, working under the auspices of the NVCA. This document is intended to serve as a starting point only, and should be tailored to meet your specific requirements. This document should not
2、be construed as legal advice for any particular facts or circumstances. Note that this sample presents an array of (often mutually exclusive) options with respect to particular deal provisions.AMENDED AND RESTATEDCERTIFICATE OF INCORPORATIONLast updated June 2013Preliminary NotesGeneral. The Certifi
3、cate of Incorporation is a key document produced in connection with a venture capital portfolio investment. Among other things, the Corporations Certificate of Incorporation establishes the rights, preferences, privileges and restrictions of each class and series of the Corporations stock.No Impairm
4、ent Clause. It is not uncommon for counsel to the investors to include a “no impairment” clause in their Certificate of Incorporation drafts. A “no impairment” clause is a broad and general provision that prohibits the Corporation from acting (or failing to act) in a way that would circumvent the ex
5、press and specific provisions of the Certificate of Incorporation. Although Delaware courts narrowly construe “no impairment” clauses See Kumar v. Racing Corp. of Am., Inc., Case No. C.A. 12039 (Del. Ch. Ct. April 26, 1991)., such provisions can be dangerous, both to the Corporation and to the contr
6、olling investors, because they can give rise to claims of violation by disgruntled minority investors looking for some grounds on which to base a claim, in the absence of any specific protective provisions in the Certificate of Incorporation. In addition, in a transaction in which the terms of the o
7、utstanding Preferred Stock are to be amended, specifically the anti-dilution and conversion rights, certain law firms have taken the position that the existence of a “no impairment” clause in the Certificate of Incorporation requires their firm to express no opinion with regard to the stockholder ac
8、tion taken in connection with the subject transaction, and instead assume for purposes of their opinion that the Corporation has complied with the provisions of the “no impairment” clause. If appropriate attention is paid to the specific, substantive provisions of the Certificate of Incorporation, t
9、here is no need for a vague catchall, which may give rise to the problems described above. Accordingly, the drafters intentionally did not include a “no impairment” clause in this Certificate of Incorporation.Pay-to-Play Provision. This Certificate of Incorporation includes a sample “pay-to-play” pr
10、ovision, pursuant to which Preferred Stock investors are penalized if they fail to invest to a specified extent in certain future rounds of financing. The provision included herein provides for conversion into Common Stock of some or all of the Series A Preferred Stock held by non-participating inve
11、stors. An alternative provision which provides for conversion of some or all of the Series A Preferred Stock held by non-participating investors into a new series of Preferred Stock (e.g., Series A-1 Preferred Stock) identical to the Series A Preferred Stock but with no anti-dilution protection and
12、no further pay-to-play provision is also sometimes used. It is the drafters view that this latter provision is not seen very frequently and therefore it has been intentionally omitted from this Certificate of Incorporation. In the event such a provision is used, careful attention should be paid to t
13、he mechanics of implementing the creation of the additional series of Preferred Stock, which may include the authorization of blank check preferred (as described below).Blank Check Preferred. Blank check preferred is the term used when the Certificate of Incorporation authorizes shares of undesignat
14、ed Preferred Stock and grants the Board of Directors the authority to create a new series of Preferred Stock and establish the rights and preferences of such series. Without this express grant of authority to the Board, the Corporation would need to obtain stockholder approval to amend the Certifica
15、te of Incorporation to create a new series of Preferred Stock. The drafters view the inclusion of blank check preferred in a Certificate of Incorporation for a venture backed company as unusual. It is sometimes seen, if (as noted above under “Pay-to-Play Provision”) the Series A Preferred Stock term
16、s include a pay-to-play provision in which the Series A Preferred Stock of non-participating investors is converted into a shadow series of Series A Preferred Stock, in which case it can be desirable to include blank check preferred to facilitate the creation (if necessary) of such shadow series. Even in those circumstances, however, Section3 of the Series A Preferred Stock terms often includes restrictions on the designation or issuance of b
