Certificate of Incorporation (Updated October 2024) (NVCA)
This document is an Amended and Restated Certificate of Incorporation, designed by the NVCA for venture-backed companies. It outlines the powers, preferences, and special rights of different classes of stock, such as Common and Preferred Stock, covering aspects like voting, dividends, and liquidation. The template also provides various options for deal provisions and discusses jurisdictional considerations, particularly for Delaware corporations with California connections.
This sample document is the work product of a national 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 be construed as legal advice for any particular facts or circumstances. Note that this sample document presents an array of (often mutually exclusive) options with respect to particular deal provisions.
For convenience of review, the drafting committee has flagged new footnotes and footnotes that were substantively revised (excluding cleanup changes) in the October 2024 revision, as a redline will show as changes footnotes that merely moved making it harder to discern a "substantive" change.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
Preliminary Notes
General.
The Certificate of Incorporation is a key document produced in connection with a venture capital portfolio investment. Among other things, the Corporation's Certificate of Incorporation establishes the powers, preferences and special rights of each class and series of the Corporation's stock.
No Impairment Clause.
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 express and specific provisions of the Certificate of Incorporation. Although Delaware courts narrowly construe “no impairment” clauses¹, such provisions can be dangerous, both to the Corporation and to the controlling 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 outstanding 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 action 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, there is no need for a vague catchall, which can give rise to the problems described above. Accordingly, the drafters intentionally did not include a “no impairment” clause in this model charter.
¹ See Kumar v. Racing Corp. of Am., 1991 WL 67083 (Del. Ch. Apr. 26, 1991).
Pay-to-Play Provision.
This model charter includes a sample “pay-to-play” provision, 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 provides for conversion into Common Stock of some or all of the Preferred Stock held by non-participating investors.
Blank Check Preferred.
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California note
This version is drafted for California. US contract and employment rules vary by state, so it will not transfer cleanly elsewhere. Tell GitLaw where the parties are and it adjusts the draft.
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