NVCA Certificate of Incorporation in Delaware

Primary source · Primary law

The certificate must state its Delaware registered office, registered agent and business or purposes.

(2) The address (which shall be stated in accordance with § 131(c) of this title) of the corporation’s registered office in this State, and the name of its registered agent at such address; (3) The nature of the business or purposes to be conducted or promoted. It shall be sufficient to state, either alone or with other businesses or purposes, that the purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, and by such statement all lawful acts and activities shall be within the purposes of the corporation, except for express limitations, if any;

See 8 Del. C. § 102(a)(2)–(3).

Lawyer commentary · Commentary

The restated charter identifies the corporation and its original incorporation history.

That the name of this corporation is [_______________], and that this corporation was originally incorporated pursuant to the General Corporation Law on [________ __, 20__] [under the name [_______________]].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), introductory certification; drafting notes 2, 3.

Lawyer commentary · Commentary

The form states total authorized shares, each class, par values, and the preferred series designation.

The total number of shares of all classes of stock which the Corporation shall have the authority to issue is [______]. The Corporation has [two] classes of stock, referred to as Common Stock and Preferred Stock. There are [_____] shares of authorized Common Stock, $[_____] par value per share (“Common Stock”), and [______] shares of authorized Preferred Stock, $[______] par value per share (“Preferred Stock”), [all] of which are hereby designated as “Series A Preferred Stock”.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, capitalization; drafting notes 4, 5.

Lawyer commentary · Commentary

The charter commits the corporation to reserve enough common shares for conversion.

The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.2.

Lawyer commentary · Commentary

The common-stock voting clause includes optional limits on common class votes and a cumulative-voting election.

Except as otherwise provided herein or by applicable law, the holders of the Common Stock shall be entitled to one vote for each share of Common Stock held as of the applicable record date for each meeting of stockholders (and written actions in lieu of meetings)[; provided, however, that, except as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Amended and Restated Certificate of Incorporation (this “Certificate of Incorporation”) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or pursuant to the General Corporation Law]. [There shall be no cumulative voting.] [The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by (in addition to any vote of the holders of one or more series of Preferred Stock that may be required by the terms of this Certificate of Incorporation) the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes represented by all outstanding shares of capital stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part A, § 2; drafting notes 6, 7, 8.

Primary source · Primary law

Delaware requires the restated heading and the present name, original name if changed, and original filing date.

A restated certificate of incorporation shall be specifically designated as such in its heading. It shall state, either in its heading or in an introductory paragraph, the corporation’s present name, and, if it has been changed, the name under which it was originally incorporated, and the date of filing of its original certificate of incorporation with the Secretary of State.

See 8 Del. C. § 245(c).

Primary source · Primary law

For multiple classes, Delaware requires aggregate and per-class authorized shares and the applicable par-value or no-par terms.

If the corporation is to be authorized to issue more than 1 class of stock, the certificate of incorporation shall set forth the total number of shares of all classes of stock which the corporation shall have authority to issue and the number of shares of each class and shall specify each class the shares of which are to be without par value and each class the shares of which are to have par value and the par value of the shares of each such class.

See 8 Del. C. § 102(a)(4).

Lawyer commentary · Commentary

The model note includes options, the stock-plan pool, preferred conversion, warrants, convertible notes and relevant dividends in common authorization planning.

The number of authorized shares of Common Stock should be high enough to cover all outstanding shares of Common Stock, plus all shares of Common Stock issuable (i) upon exercise of outstanding options and all other uncommitted shares of stock available for grant under the stock plan pool, (ii) upon the conversion of shares of designated Preferred Stock, including, if applicable, accrued dividends, (iii) upon the exercise or conversion of all other securities exercisable for or convertible into Common Stock (e.g., warrants and convertible promissory notes), and (iv) within a reasonable time frame in respect of any compounding dividend, if applicable. Consideration should also be given to authorizing additional shares of Common Stock to permit the Board of Directors to issue such stock in connection with future events, such as acquisitions of other companies or businesses or in lending transactions. Note, however, that many venture capital investors will not permit the authorization of significant amounts of (or even any) additional shares of Common Stock.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), drafting note 5, first paragraph.

Lawyer commentary · Commentary

The noncumulative alternative makes the specified dividend payable only when declared by the board.

The holders of then outstanding shares of Preferred Stock shall be entitled to receive, only when, as and if declared by the Board of Directors, out of any funds and assets legally available therefor, dividends equal to the applicable Dividend Amount (as defined below) for each share of Preferred Stock, prior and in preference to any declaration or payment of any other dividend (other than dividends on shares of Common Stock payable in shares of Common Stock) during the same calendar year.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 1, noncumulative alternative; drafting notes 9, 10, 11, 12.

Lawyer commentary · Commentary

The cumulative alternative accrues a stated amount per share and requires coordination with liquidation and redemption terms.

From and after the date of the issuance of any shares of Preferred Stock, dividends at the rate per annum of $[___] per share shall accrue on such shares of Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock) (the “Accruing Dividends”).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 1, cumulative alternative; drafting notes 13, 14, 15.

Lawyer commentary · Commentary

The nonparticipating alternative compares the preference with the as-converted payment.

In the event of (a) any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the holders of shares of each series of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, and (b) a Deemed Liquidation Event (as defined below), the holders of shares of each series of Preferred Stock then outstanding shall be entitled to be paid out of the consideration payable to stockholders in such Deemed Liquidation Event or out of the Available Proceeds (as defined below), as applicable, on a pari passu basis based on their respective Liquidation Amounts (as defined below) and before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share of each such series of Preferred Stock equal to the greater of (i) [__ times] the applicable Original Issue Price, plus any dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of such series of Preferred Stock (and all shares of all other series of Preferred Stock that would receive a larger distribution per share if such series of Preferred Stock were converted into Common Stock) been converted into Common Stock pursuant to Section 4 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amount payable pursuant to this sentence is hereinafter referred to, for each series of Preferred Stock, as applicable, as the “Liquidation Amount”). If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Preferred Stock the full amount to which they shall be entitled under this Section 2.1, the holders of shares of Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.1, nonparticipating alternative; drafting notes 16, 17, 18.

Lawyer commentary · Commentary

The deemed-liquidation definition sets transaction triggers, holder waiver, and continuity exceptions.

Definition. Each of the following events shall be considered a “Deemed Liquidation Event” unless the holders of at least [specify percentage], of the outstanding shares of Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (the “Requisite Holders”), elect otherwise by written notice sent to the Corporation at least 10 days prior to the effective date of any such event: a merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance in which the Corporation is a constituent party or a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance, except any such merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance continue to represent, or are converted into or exchanged for shares of capital stock or other equity interests that represent, immediately following such merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance, [a majority[, by voting power,]] of the capital stock or other equity interests of (1) the surviving or resulting corporation or entity; or (2) if the surviving or resulting corporation or entity is a wholly owned subsidiary of another corporation or entity immediately following such merger, consolidation, statutory conversion, transfer of the Corporation, domestication, or continuance, the parent corporation or entity of such surviving or resulting corporation or entity; or (i) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or (ii) the sale, lease, transfer, exclusive license or other disposition (whether by merger, consolidation, statutory conversion, transfer of the Corporation, domestication, continuance or otherwise, and whether in a single transaction or a series of related transactions) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.1; drafting notes 21, 22, 23, 24, 25, 26, 27, 28.

Lawyer commentary · Commentary

The optional clarification excludes a bona fide preferred equity financing, by itself, from deemed liquidation treatment.

[Notwithstanding anything in Section 2.3.1 to the contrary, in no event shall the sale and issuance by the Corporation of Preferred Stock in a bona fide equity financing of the Corporation, in and of itself, be a Deemed Liquidation Event.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.1; drafting note 29.

Lawyer commentary · Commentary

For the specified transaction, the transaction document must allocate consideration under the charter waterfall.

The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Section 2.3.1(a)(i) unless the agreement or plan with respect to such transaction, or terms of such transaction (any such agreement, plan or terms, the “Transaction Document”), provide that the consideration payable to the stockholders of the Corporation in such Deemed Liquidation Event shall be allocated to the holders of capital stock of the Corporation in accordance with Sections 2.1 and 2.2.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.2(a).

Lawyer commentary · Commentary

The optional proceeds-redemption mechanism sets deadlines and respects restrictions on distributions.

[In the event of a Deemed Liquidation Event referred to in Section 2.3.1(a)(ii) or 2.3.1(b), if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within 90 days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each holder of Preferred Stock no later than the 90th day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (ii) to require the redemption of such shares of Preferred Stock, and (ii) if the Requisite Holders so request in a written instrument delivered to the Corporation not later than 120 days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, any other expenses reasonably related to such Deemed Liquidation Event or any other expenses incident to the dissolution of the Corporation as provided herein, in each case as determined in good faith by the Board of Directors), together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the “Available Proceeds”) on the 150th day after such Deemed Liquidation Event (the “DLE Redemption Date”), to redeem all outstanding shares of Preferred Stock at a price per share equal to the applicable Liquidation Amount; provided, that if the definitive agreements governing such Deemed Liquidation Event contain contingent indemnification obligations on the part of the Corporation and prohibit the Corporation from distributing all or a portion of the Available Proceeds while such indemnification obligations remain outstanding, then the DLE Redemption Date shall automatically be extended to the date that is ten business days following the date on which such prohibition expires.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.2(b).

Lawyer commentary · Commentary

The no-redemption election preserves the separate deemed-liquidation redemption provision.

Other than as set forth in Section 2.3.2(b), the Preferred Stock is not redeemable at the option of the holder or the Corporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6, no-redemption alternative; drafting notes 75, 76.

Lawyer commentary · Commentary

The board values noncash consideration, with optional preferred-director approval.

The amount deemed paid or distributed to the holders of capital stock of the Corporation upon any such merger, consolidation, sale, transfer, exclusive license, other disposition or redemption shall be the cash or the value of the property, rights or securities to be paid or distributed to such holders pursuant to such Deemed Liquidation Event. The value of such property, rights or securities shall be determined in good faith by the Board of Directors[, including the approval of [at least one] Preferred Director (as defined herein)].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.3; drafting note 30.

Lawyer commentary · Commentary

The form addresses contingent payments and offers a choice for treating escrow and holdbacks.

In the event of a Deemed Liquidation Event pursuant to Section 2.3.1(a)(i), if any portion of the consideration payable to the stockholders of the Corporation is payable only upon satisfaction of contingencies (the “Additional Consideration”), the Transaction Document shall provide that (a) the portion of such consideration that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 2.1 and 2.2 as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation Event; and (b) any Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be allocated among the holders of capital stock of the Corporation in accordance with Sections 2.1 and 2.2 after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes of this Section 2.3.4, consideration placed into escrow or retained as a holdback to be available for satisfaction of indemnification or similar obligations in connection with such Deemed Liquidation Event shall be deemed to be [Initial Consideration] [Additional Consideration].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 2.3.4; drafting note 31.

Lawyer commentary · Commentary

The model calculates preferred votes on an as-converted basis at the applicable record date.

On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of a meeting), each holder of outstanding shares of Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Preferred Stock held by such holder are convertible (as provided in Section 4 below) as of the record date for determining stockholders entitled to vote on such matter. Except as provided by law or by the other provisions of this Certificate of Incorporation, holders of Preferred Stock shall vote together with the holders of Common Stock as a single class and on an as-converted to Common Stock basis.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.1.

Lawyer commentary · Commentary

The class-specific vacancy provision preserves election by the stockholders entitled to the seat.

If the holders of shares of Preferred Stock or Common Stock, as the case may be, fail to elect a sufficient number of directors to fill all directorships for which they are entitled to elect directors pursuant to Section 3.2(a) [(and to the extent any of such directorships is not otherwise filled by a director appointed in accordance with the last sentence of Section 3.2(a))], then any directorship not so filled shall remain vacant until such time as the holders of the Preferred Stock or Common Stock, as the case may be, fill such directorship in accordance with Section 3.2(a).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.2; drafting notes 32, 33, 34, 35.

Lawyer commentary · Commentary

The form defines the board approval that includes the selected preferred-director consent.

For purposes of this Certificate of Incorporation, “Requisite Directors” means the Board of Directors [including [a majority of] the Preferred Directors then seated].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.2; drafting note 36.

Lawyer commentary · Commentary

The protective provisions require the selected holder consent to effect covered transactions.

At any time when at least [____] shares of Preferred Stock [(subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock)] are outstanding, the Corporation shall not, either directly or indirectly by amendment, merger, consolidation, domestication, transfer of the Corporation, continuance, reorganization, recapitalization, reclassification, waiver, statutory conversion, or otherwise, effect any of the following acts or transactions without (in addition to any other vote required by law or this Certificate of Incorporation) the written consent or affirmative vote of the Requisite Holders[, and any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.3; drafting notes 37, 38, 39, 40, 41, 42, 43, 44, 45.

Lawyer commentary · Commentary

The optional debt restriction sits under a Requisite Directors approval exception, with negotiated thresholds and ordinary-course exclusions.

[unless otherwise approved by the Requisite Directors: [unless the aggregate indebtedness of the Corporation and its subsidiaries for borrowed money following such action would not exceed $[_______]/the amount already included in the annual budget approved in accordance with Section 3.3.9(f) and] other than equipment leases, bank lines of credit or trade payables incurred in the ordinary course of business, create, or issue, any debt security, create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business), or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any subsidiary to take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money;]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.3.9(a); drafting notes 44, 45.

Lawyer commentary · Commentary

An optional restriction expressly covers tokens and instruments convertible into tokens.

[sell, issue, sponsor, create or distribute, or cause or permit any of its subsidiaries to sell, issue, sponsor, create or distribute, any digital tokens, cryptocurrency or other blockchain-based assets (collectively, “Tokens”), including through a pre-sale, initial coin offering, token distribution event or crowdfunding, or through the issuance of any instrument convertible into or exchangeable for Tokens;]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.3.9(i).

Lawyer commentary · Commentary

An optional restriction addresses material IP or asset transactions accompanied by direct engagements of senior executives.

[any license or transfer of the Corporation’s (or its subsidiaries’) intellectual property or assets to a third party in a material transaction or series of related transactions that, viewed in the aggregate, would be material and in connection with which such third party or its affiliates contemporaneously directly engages the services of any of the Corporation’s senior executives in their individual capacities (including transactions commonly referred to as acquihires)];

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.3.9(k).

Lawyer commentary · Commentary

The optional restrictions address acquihire transactions and real estate leases longer than three years, with the stated exceptions.

[any license or transfer of the Corporation’s (or its subsidiaries’) intellectual property or assets to a third party in a material transaction or series of related transactions that, viewed in the aggregate, would be material and in connection with which such third party or its affiliates contemporaneously directly engages the services of any of the Corporation’s senior executives in their individual capacities (including transactions commonly referred to as acquihires)]; [or] [enter into a real estate lease having a term longer than, or extend a real estate lease to result in a term longer than, three years, unless [either (i)] the aggregate annual cost to the Corporation is less than $[_______][or (ii) it is included in an annual budget or any amendment thereto approved in accordance with Section 3.3.9(f)].]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 3.3.9(k)–(l).

Lawyer commentary · Commentary

The model note calls for a separate protective provision when investors want to block a jurisdiction move.

If Investors desire to have a block over the Corporation moving to a different jurisdiction, build in a separate protective provision.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), drafting note 40.

Lawyer commentary · Commentary

The optional conversion ratio divides Original Issue Price by Conversion Price.

Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time, and without the payment of additional consideration by the holder thereof, into such whole number of fully paid and non-assessable shares of Common Stock (calculated as provided in Section 4.2 below), as is determined by dividing the applicable Original Issue Price by the applicable Conversion Price (as defined below) in effect at the time of conversion.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.1.1; drafting notes 46, 47.

Lawyer commentary · Commentary

The model rounds after aggregating the converting holder’s interests in the same series.

The number of shares of Common Stock issuable to a holder of Preferred Stock upon conversion of such Preferred Stock shall be the nearest whole share, after aggregating all fractional interests in shares of Common Stock that would otherwise be issuable upon conversion of all shares of that same series of Preferred Stock being converted by such holder (with any fractional interests after such aggregation representing 0.5 or greater of a whole share being entitled to a whole share).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.2; drafting note 48.

Lawyer commentary · Commentary

Conversion rights continue after a noticed redemption date if the redemption price remains unpaid.

In the event of a notice of redemption of any shares of Preferred Stock pursuant to Section 2.3.2(b) [or Section 6.1], the Conversion Rights of the shares designated for redemption shall terminate at 5:00 p.m. [Eastern/Pacific] time (the “close of business” for purposes hereof) on the last full day preceding the date fixed for redemption, unless the redemption price is not fully paid on such redemption date, in which case the Conversion Rights for such shares shall continue until such price is paid in full.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.1.2.

Lawyer commentary · Commentary

Voluntary conversion requires notice and, for certificated shares, surrender or acceptable lost-certificate documentation.

In order for a holder of Preferred Stock to voluntarily convert shares of Preferred Stock into shares of Common Stock, such holder shall (a) provide written notice to the Corporation at the principal office of the Corporation that such holder elects to convert all or any number of such holder’s shares of Preferred Stock and, if applicable, any event on which such conversion is contingent and (b) if such holder’s shares are certificated, tender to the Corporation at its principal office (1) the certificate or certificates for such shares of Preferred Stock or (2) a stock assignment separate from certificate if such certificate or certificates are electronic (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.1; drafting notes 49, 50.

Lawyer commentary · Commentary

Conversion ends preferred rights while preserving the right to common shares and declared but unpaid dividends.

All shares of Preferred Stock which shall have been surrendered for conversion as herein provided shall no longer be deemed to be outstanding and all rights with respect to such shares shall immediately cease and terminate at the Conversion Time, except only the right of the holders thereof to receive shares of Common Stock in exchange therefor and to receive payment of any dividends declared but unpaid thereon.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.3.

Lawyer commentary · Commentary

The corporation bears issue taxes; a requested transfer into another name may require the requesting person to pay the transfer tax.

The Corporation shall pay any and all issue and other similar taxes that may be payable in respect of any issuance or delivery of shares of Common Stock upon conversion of shares of Preferred Stock pursuant to this Section 4. The Corporation shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of shares of Common Stock in a name other than that in which the shares of Preferred Stock so converted were registered, and no such issuance or delivery shall be made unless and until the person or entity requesting such issuance has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.5.

Lawyer commentary · Commentary

The charter commits the corporation to reserve enough common shares for conversion.

The Corporation shall at all times when the Preferred Stock shall be outstanding, reserve and keep available out of its authorized but unissued capital stock, for the purpose of effecting the conversion of the Preferred Stock, such number of its duly authorized shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding Preferred Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Preferred Stock, the Corporation shall take such corporate action as may be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes, including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to this Certificate of Incorporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.2.

Lawyer commentary · Commentary

The anti-dilution definitions identify excluded issuances and the Original Issue Date.

“Additional Shares of Common Stock” means all shares of Common Stock issued (or, pursuant to Section 4.4.3 below, deemed to be issued) by the Corporation after the Original Issue Date (as defined below), other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, “Exempted Securities”): as to any series of Preferred Stock, shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on such series of Preferred Stock (including dividends payable in connection with dividends on other classes or series of stock); shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Section 4.5, 4.6, 4.7 or 4.8; [shares of Common Stock, Options or Convertible Securities issued to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction [approved by the Requisite Directors] [that do not exceed an aggregate of [______] shares of Common Stock (including shares underlying (directly or indirectly) any such Options or Convertible Securities)];] shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Corporation or any of its subsidiaries pursuant to a plan, agreement or arrangement [approved (i) prior to the Original Issue Date or (ii) by the Requisite Directors]; shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security; [shares of Common Stock, Options or Convertible Securities issued to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions [approved by the Requisite Directors] [that do not exceed an aggregate of [______] shares of Common Stock (including shares underlying (directly or indirectly) any such Options or Convertible Securities)];] [shares of Common Stock, Options or Convertible Securities issued as acquisition consideration pursuant to the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement[, provided that such issuances [are approved by the Requisite Directors] [[do not exceed an aggregate of [______] shares of Common Stock (including shares underlying (directly or indirectly) any such Options or Convertible Securities)];] [or] shares of Common Stock issued in connection with a firm underwritten public offering of the Corporation’s Common Stock pursuant to an effective registration statement; [or] [shares of Common Stock, Options or Convertible Securities issued in connection with sponsored research, collaboration, technology license, development, OEM, marketing or other similar agreements or strategic partnerships [approved by the Requisite Directors] [that do not exceed an aggregate of [______] shares of Common Stock (including shares underlying (directly or indirectly) any such Options or Convertible Securities)]. “Convertible Securities” means any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options. “Option” means any rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities. “Original Issue Date” means the date on which the first share of Series A Preferred Stock is issued.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.1; drafting notes 51, 52, 53.

Lawyer commentary · Commentary

The weighted-average provision responds to an issuance below the current Conversion Price.

In the event the Corporation shall at any time after the Original Issue Date issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 4.4.3), without consideration or for a consideration per share less than the Conversion Price of a series of Preferred Stock in effect immediately prior to such issuance or deemed issuance, then the Conversion Price for such series of Preferred Stock shall be reduced, concurrently with such issue, to a price (calculated to the nearest one-hundredth of a cent) determined in accordance with the following formula:

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.4, weighted-average alternative; drafting note 56.

Lawyer commentary · Commentary

The alternative full-ratchet provision resets Conversion Price to the new issue price, subject to its terms.

In the event the Corporation at any time after the Original Issue Date [and prior to [Date]] issues Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section 4.4.3), without consideration or for a consideration per share less than the Conversion Price of a series of Preferred Stock in effect immediately prior to such issuance or deemed issuance, then the Conversion Price of such series of Preferred Stock shall be reduced, concurrently with such issuance or deemed issuance, to the consideration per share received by the Corporation for such issue or deemed issue of the Additional Shares of Common Stock; provided that if such issuance or deemed issuance was without consideration, then the Corporation shall be deemed to have received an aggregate of [$0.001] of consideration for all such Additional Shares of Common Stock issued or deemed to be issued.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.4, full-ratchet alternative; drafting note 57.

Lawyer commentary · Commentary

Options and convertibles can count as deemed common-share issuances before exercise or conversion.

If the Corporation at any time or from time to time after the Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.3; drafting notes 54, 55.

Lawyer commentary · Commentary

The anti-dilution provision includes a written waiver with an elected holder threshold.

No adjustment in the Conversion Price of any series of Preferred Stock shall be made as the result of the issuance or deemed issuance of Additional Shares of Common Stock if the Corporation receives written notice from [the Requisite Holders] [the holders of [a majority] of the then outstanding shares of such series of Preferred Stock], agreeing that no such adjustment shall be made as the result of the issuance or deemed issuance of such Additional Shares of Common Stock.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.2.

Lawyer commentary · Commentary

The model readjusts covered issuances at multiple closings as one transaction.

In the event the Corporation shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price of a series of Preferred Stock pursuant to the terms of Section 4.4.4[, and such issuance dates occur within a period of no more than [180] days from the first such issuance to the final such issuance,] then, upon the final such issuance, the Conversion Price for such series of Preferred Stock shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.4.6.

Lawyer commentary · Commentary

The model preserves conversion into successor consideration in specified reorganizations.

Subject to the provisions of Section 2.3, if there shall occur any reorganization, recapitalization, reclassification, consolidation or merger involving the Corporation in which the Common Stock (but not the Preferred Stock) is converted into or exchanged for securities, cash or other property (other than a transaction covered by Sections 4.4, 4.6 or 4.7), then, following any such reorganization, recapitalization, reclassification, consolidation or merger, each share of Preferred Stock shall thereafter be convertible in lieu of the Common Stock into which it was convertible prior to such event into the kind and amount of securities, cash or other property which a holder of the number of shares of Common Stock of the Corporation issuable upon conversion of one share of such Preferred Stock immediately prior to such reorganization, recapitalization, reclassification, consolidation or merger would have been entitled to receive pursuant to such transaction; and, in such case, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions in this Section 4 with respect to the rights and interests thereafter of the holders of the Preferred Stock, to the end that the provisions set forth in this Section 4.8 (including provisions with respect to changes in and other adjustments of the Conversion Price of each series of Preferred Stock) shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or other property thereafter deliverable upon the conversion of the Preferred Stock.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.8; drafting notes 58, 59, 60.

Lawyer commentary · Commentary

The corporation supplies holders with the calculation and supporting facts for an adjustment.

Upon the occurrence of each adjustment or readjustment of the Conversion Price of a series of Preferred Stock pursuant to this Section 4, the Corporation at its expense shall, as promptly as reasonably practicable but in any event not later than ten days thereafter, compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of such series of Preferred Stock a certificate setting forth such adjustment or readjustment (including the kind and amount of securities, cash or other property into which such series of Preferred Stock is convertible) and showing in detail the facts upon which such adjustment or readjustment is based.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.9.

Lawyer commentary · Commentary

The model calls for corporate action needed to permit lawful issuance if an adjustment would reduce conversion price below par.

Before taking any action that would cause an adjustment reducing the Conversion Price for any series of Preferred Stock below the then par value of the shares of Common Stock issuable upon conversion of such series of Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and non‑assessable shares of Common Stock at such adjusted Conversion Price.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.3.2.

Lawyer commentary · Commentary

The model requires notice of specified record dates and events, with an elected advance-notice period.

Notice of Record Date. In the event: the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon conversion of the Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or series or any other securities, or to receive any other security; or of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event; or of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation, then, and in each such case, the Corporation will send or cause to be sent to the holders of the Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Preferred Stock and the Common Stock. Such notice shall be sent at least [10] days prior to the record date or effective date for the event specified in such notice.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.10.

Lawyer commentary · Commentary

The model separately adjusts for splits, stock dividends and other distributions.

Adjustment for Stock Splits and Combinations. If at any time or from time to time after the Original Issue Date the Corporation shall effect a subdivision of the outstanding Common Stock, the Conversion Price of each series of Preferred Stock in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after the Original Issue Date combine the outstanding shares of Common Stock, the Conversion Price of each series of Preferred Stock in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this Section 4.5 shall become effective at the close of business on the date the subdivision or combination becomes effective. Adjustment for Certain Dividends and Distributions. If at any time or from time to time after the Original Issue Date the Corporation shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable on the Common Stock in additional shares of Common Stock, then and in each such event the Conversion Price of each series of Preferred Stock in effect immediately before such event shall be decreased as of the time of such issuance or, if such a record date shall have been fixed, as of the close of business on such record date, by multiplying the Conversion Price of each such series of Preferred Stock then in effect by a fraction: the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution. Notwithstanding the foregoing, (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price of each series of Preferred Stock shall be recomputed accordingly as of the close of business on such record date and thereafter the Conversion Price of each series of Preferred Stock shall be adjusted pursuant to this Section 4.6 as of the time of actual payment of such dividends or distributions; and (b) no such adjustment shall be made if the holders of such series of Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of such series of Preferred Stock had been converted into Common Stock on the date of such event. Adjustments for Other Dividends and Distributions. If at any time or from time to time after the Original Issue Date the Corporation shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution payable in securities of the Corporation (other than a distribution of shares of Common Stock in respect of outstanding shares of Common Stock) or in other property and the provisions of Section 1 do not apply to such dividend or distribution, then and in each such event the holders of Preferred Stock shall receive, simultaneously with the distribution to the holders of Common Stock, a dividend or other distribution of such securities or other property in an amount equal to the amount of such securities or other property as they would have received if all outstanding shares of Preferred Stock had been converted into Common Stock on the date of such event.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, §§ 4.5–4.7.

Lawyer commentary · Commentary

The model includes IPO, optional direct-listing, and holder-directed mandatory conversion triggers.

Trigger Events. All outstanding shares of Preferred Stock shall automatically be converted into shares of Common Stock, at the then effective conversion rate as calculated pursuant to Sections 4.1.1 and 4.2, upon the earliest to occur of (the time of such conversion is referred to herein as the “Mandatory Conversion Time”): [(i)] immediately prior to the closing of the sale of shares of Common Stock to the public [at a price of at least $[_____] per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock)], in a firm-commitment underwritten public offering pursuant to an effective registration statement under the Securities Act of 1933, as amended, resulting in at least $[______] of [gross] proceeds[, net of the underwriting discount and commissions,] to the Corporation and in connection with such offering the shares of Common Stock are listed for trading on the Nasdaq Stock Market, the New York Stock Exchange or another exchange or marketplace approved by the [Requisite Directors] (a “Qualified IPO”); [(ii) immediately prior to the effectiveness of the registration statement in connection with the initial listing of the Common Stock (or other equity securities of the Corporation) on the Nasdaq Stock Market, New York Stock Exchange or another exchange or marketplace approved by the [Requisite Directors] by means of an effective registration statement filed by the Corporation with the Securities and Exchange Commission, without a related underwritten offering of such Common Stock (or other equity securities)[, for which the Board of Directors, in its sole discretion, determines that the Corporation is expected to have a market capitalization equal to or greater than $[__________] at any time on the first day of trading] (a “Qualified Direct Listing”);] and the date and time, or upon the occurrence of an event, specified by vote or written consent of the Requisite Holders.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 5.1; drafting notes 61, 62, 63, 64.

Lawyer commentary · Commentary

The mandatory-conversion procedure provides notice and ends preferred rights at the conversion time.

Procedural Requirements. All holders of record of shares of Preferred Stock (or the applicable series thereof) shall be sent written notice of the Mandatory Conversion Time and the place designated for mandatory conversion of all such shares of Preferred Stock pursuant to this Section 5. Such notice need not be sent in advance of the occurrence of the Mandatory Conversion Time. Upon receipt of such notice, each holder of shares of Preferred Stock being converted that holds such shares of Preferred Stock in certificated form shall surrender his, her or its certificate or certificates for all such shares (or, if such holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation at the place designated in such notice. If so required by the Corporation, any certificates surrendered for conversion shall be endorsed or accompanied by written instrument or instruments of transfer, in form satisfactory to the Corporation, duly executed by the registered holder or by his, her or its attorney duly authorized in writing. All rights with respect to the Preferred Stock converted pursuant to Section 5.1, including the rights, if any, to receive notices and vote (other than as a holder of Common Stock), will terminate at the Mandatory Conversion Time (notwithstanding the failure of the holder or holders thereof to surrender any certificates at or prior to such time), except only the rights of the holders thereof, upon surrender of any certificate or certificates of such holders (or lost certificate affidavit and agreement) therefor, to receive the items provided for in the next sentence of this Section 5.2. As soon as practicable after the Mandatory Conversion Time and, if applicable, the surrender of any certificate or certificates (or lost certificate affidavit and agreement) for Preferred Stock, the Corporation shall (a) issue and deliver to such holder, or to his, her or its nominees, a certificate or certificates for the number of full shares of Common Stock issuable on such conversion in accordance with the provisions hereof or issue and deliver to such holder, or to his, her or its nominees, a notice of issuance of uncertificated shares and may, upon written request, issue and deliver a certificate for the number of full shares of Common Stock issuable upon such conversion in accordance with the provisions hereof; and (b) pay any declared but unpaid dividends on the shares of Preferred Stock converted.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 5.2.

Lawyer commentary · Commentary

The optional pay-to-play provision converts a nonparticipating holder’s selected shares on consummation of a qualified financing.

In the event that any holder of shares of Preferred Stock does not participate in a Qualified Financing (as defined below) by purchasing in the aggregate, in such Qualified Financing and within the time period specified by the Corporation (provided that, the Corporation has sent to each holder of Preferred Stock at least 10 days written notice of, and the opportunity to purchase its Pro Rata Amount (as defined below) of, the Qualified Financing), such holder’s Pro Rata Amount, [then each share] [then the Applicable Portion (as defined below) of the shares] of Preferred Stock held by such holder shall automatically, and without any further action on the part of such holder, be converted into shares of Common Stock at the applicable Conversion Price in effect immediately prior to the consummation of such Qualified Financing, effective upon, subject to, and concurrently with, the consummation of the Qualified Financing.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 5A.1; drafting notes 65, 66, 67, 68, 69.

Lawyer commentary · Commentary

The qualified-financing definition contains proceeds, down-round, and opt-out choices.

“Qualified Financing” shall mean any transaction involving the issuance or sale of Additional Shares of Common Stock after the Original Issue Date [that would result in at least $_______ in gross proceeds to the Corporation, [including/excluding] proceeds previously received by Corporation for debt that is being cancelled or converted in connection with such issuance] [or result in the reduction of the Conversion Price of any series of Preferred Stock pursuant to the terms of this Certificate of Incorporation (without giving effect to the operation of Section 4.4.2]], unless the [Requisite Holders] elect, by written notice sent to the Corporation at least [__] days prior to the consummation of the Qualified Financing, that such transaction not be treated as a Qualified Financing for purposes of this Section 5A.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 5A.3.

Lawyer commentary · Commentary

The optional conversion suspension preserves the voting and liquidation calculations while it operates.

[Notwithstanding the foregoing and notwithstanding Section 4.3.1, the optional right to convert shares of Preferred Stock into shares of Common Stock pursuant to the first sentence of this Section 4.1.1 shall be suspended, and no optional conversion may be effective, from and after the date the Corporation delivers (pursuant to Section 5A.1 below) notice of a Qualified Financing (as defined below) until immediately after the earlier of (x) consummation of the Qualified Financing and the associated Special Mandatory Conversion or (y) termination of the Qualified Financing; provided, however, that the foregoing limitation on the right to optionally convert shares into Common Stock pursuant to this Section 4.1.1 shall not affect the calculation of the number of shares deemed issuable upon conversion of such shares for purposes of (A) voting rights under this Certificate of Incorporation, or (B) determining amounts payable in respect of shares of Preferred Stock in connection with a dissolution, liquidation, or winding up of the Corporation or pursuant to a Deemed Liquidation Event.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 4.1.1; drafting note 47.

Lawyer commentary · Commentary

The no-redemption election preserves the separate deemed-liquidation redemption provision.

Other than as set forth in Section 2.3.2(b), the Preferred Stock is not redeemable at the option of the holder or the Corporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6, no-redemption alternative; drafting notes 75, 76.

Lawyer commentary · Commentary

The optional redemption obligation is expressly subject to Delaware distribution limits.

Unless prohibited by Delaware law governing distributions to stockholders, shares of Preferred Stock shall be redeemed by the Corporation at a price per share of such Preferred Stock equal to [the greater of (A)][the applicable Original Issue Price, plus all declared but unpaid dividends thereon][and (B) the Fair Market Value (determined in the manner set forth below) of such share of Preferred Stock as of the date of the Corporation’s receipt of the Redemption Request] (the “Redemption Price”), in three annual installments commencing not more than 60 days after receipt by the Corporation at any time on or after [_____________] from the Requisite Holders of written notice requesting redemption of all shares of Preferred Stock (the “Redemption Request”).

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.1; drafting notes 77, 78, 79, 80, 81, 82, 83, 84.

Lawyer commentary · Commentary

The optional redemption provision requires notice at least 40 days before each redemption date.

The Corporation shall send written notice of the mandatory redemption (the “Redemption Notice”) to each holder of record of Preferred Stock not less than 40 days prior to each Redemption Date.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.2.

Lawyer commentary · Commentary

The bracketed alternative allows a holder to elect exclusion within the specified notice period.

[If the Corporation receives, on or prior to the 20th day after the date of delivery of the Redemption Notice to a holder of Preferred Stock, written notice from such holder that such holder elects to be excluded from the redemption provided in this Section 6, then the shares of Preferred Stock registered on the books of the Corporation in the name of such holder at the time of the Corporation’s receipt of such notice shall thereafter be “Excluded Shares.” Excluded Shares shall not be redeemed or redeemable pursuant to this Section 6, whether on such Redemption Date or thereafter.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.2, Excluded Shares alternative; drafting note 83.

Lawyer commentary · Commentary

Certificated shares must be surrendered or supported by acceptable lost-certificate documentation for redemption payment.

On or before the applicable Redemption Date, each holder of shares of Preferred Stock to be redeemed on such Redemption Date, unless such holder has exercised his, her or its right to convert such shares as provided in Section 4, shall, if a holder of shares in certificated form, surrender the certificate or certificates representing such shares (or, if such registered holder alleges that such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) to the Corporation, in the manner and at the place designated in the Redemption Notice, and thereupon the Redemption Price for such shares shall be payable to the order of the person whose name appears on such certificate or certificates as the owner thereof.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.3.

Lawyer commentary · Commentary

Termination of preferred rights after redemption depends on notice and timely payment, tender or deposit.

If the Redemption Notice shall have been duly given, and if on the applicable Redemption Date the Redemption Price payable upon redemption of the shares of Preferred Stock to be redeemed on such Redemption Date is paid or tendered for payment or deposited with an independent payment agent so as to be available therefor in a timely manner, then notwithstanding that any certificates evidencing any of the shares of Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to such shares of Preferred Stock shall cease to accrue after such Redemption Date and all rights with respect to such shares shall forthwith after the Redemption Date terminate, except only the right of the holders to receive the Redemption Price without interest upon surrender of any such certificate or certificates therefor.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.5.

Lawyer commentary · Commentary

The optional interest provision is triggered by a failure to redeem for any reason.

If any shares of Preferred Stock are not redeemed for any reason on any Redemption Date, all such unredeemed shares shall remain outstanding and entitled to all the rights and preferences provided herein, and the Corporation shall pay interest on the Redemption Price applicable to such unredeemed shares at an aggregate per annum rate equal to [12]% (increased by 1% each month following the Redemption Date until the Redemption Price, and any interest thereon, is paid in full), with such interest to accrue daily in arrears and be compounded [annually]; provided, however, that in no event shall such interest exceed the maximum permitted rate of interest under applicable law (the “Maximum Permitted Rate”), provided, however, that the Corporation shall take all such actions as may be necessary, including, without limitation, making any applicable governmental filings, to cause the Maximum Permitted Rate to be the highest possible rate.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 6.4; drafting note 85.

Lawyer commentary · Commentary

The model cancels acquired preferred shares unless the board and requisite holders approve otherwise.

Unless approved by the Board of Directors and the Requisite Holders, any shares of Preferred Stock that are redeemed, converted or otherwise acquired by the Corporation or any of its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 7.

Lawyer commentary · Commentary

Waivers use the amendment constituency, including series-specific treatment.

Except as otherwise set forth herein, (a) any of the rights, powers, preferences and other terms of the Preferred Stock set forth herein may be waived on behalf of all holders of Preferred Stock by the affirmative written consent or vote of the holders that would otherwise be required to amend such right, powers, preferences, and other terms and (b) at any time more than one series of Preferred Stock is issued and outstanding, any of the rights, powers, preferences and other terms of any series of Preferred Stock set forth herein may be waived on behalf of all holders of such series of Preferred Stock by the affirmative written consent or vote of the holders of such series that would otherwise be required to amend such right, power, preference, or other term.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 8.

Lawyer commentary · Commentary

General notices permit mailing or statutory electronic transmission.

Any notice required or permitted by the provisions of this Article Fourth to be given to a holder of shares of Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the Corporation, or given by electronic transmission in compliance with the provisions of the General Corporation Law, and shall be deemed sent upon such mailing or electronic transmission.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourth, Part B, § 9.

Lawyer commentary · Commentary

The model permits a deliberate election to extend exculpation to officers within applicable law.

To the fullest extent permitted by law, a director [or officer] of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director [or officer].

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Ninth; drafting note 86.

Lawyer commentary · Commentary

Article Tenth authorizes indemnification and advancement; Exhibit A supplies an alternative mandatory structure.

To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which the General Corporation Law permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the General Corporation Law.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Tenth; drafting notes 87, 92.

Lawyer commentary · Commentary

The corporate-opportunities provision renounces the corporation’s interest in defined excluded opportunities.

The Corporation renounces, to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any Excluded Opportunity.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Eleventh; drafting note 88.

Lawyer commentary · Commentary

The optional forum provision identifies covered claims and exceptions to Chancery exclusivity.

[Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the General Corporation Law or the Corporation’s certificate of incorporation or bylaws or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine or that otherwise relates to the internal affairs of the Corporation, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within 10 days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Twelfth; drafting note 89.

Lawyer commentary · Commentary

The optional provision addresses specified service-related repurchases for California distribution calculations.

[For purposes of Section 500 of the California Corporations Code (to the extent applicable), in connection with any repurchase of shares of Common Stock permitted under this Certificate of Incorporation from employees, officers, directors or consultants of the Corporation in connection with a termination of employment or services pursuant to agreements or arrangements approved by the Board of Directors (in addition to any other consent required under this Certificate of Incorporation), such repurchase may be made without regard to any “preferential dividends arrears amount” or “preferential rights amount” (as those terms are defined in Section 500 of the California Corporations Code). Accordingly, for purposes of making any calculation under California Corporations Code Section 500 in connection with such repurchase, the amount of any “preferential dividends arrears amount” or “preferential rights amount” (as those terms are defined therein) shall be deemed to be zero.]

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fourteenth; drafting note 90.

Lawyer commentary · Commentary

The form certifies adoption under the DGCL amendment and restatement provisions.

That this Certificate of Incorporation, which restates and integrates and further amends the provisions of the Corporation’s Certificate of Incorporation, has been duly adopted in accordance with Sections 242 and 245 of the General Corporation Law.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), closing adoption certification; drafting notes 2, 91.

Primary source · Primary law

Section 102(b)(7) excludes specified conduct and excludes officer liability in actions by or in the right of the corporation.

(7) A provision eliminating or limiting the personal liability of a director or officer to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, provided that such provision shall not eliminate or limit the liability of: (i) A director or officer for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders; (ii) A director or officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) A director under § 174 of this title; (iv) A director or officer for any transaction from which the director or officer derived an improper personal benefit; or (v) An officer in any action by or in the right of the corporation.

See 8 Del. C. § 102(b)(7).

Primary source · Primary law

Section 245(b) distinguishes a pure restatement from a restatement that further amends the certificate.

(b) If the restated certificate of incorporation merely restates and integrates but does not further amend the certificate of incorporation, as theretofore amended or supplemented by any instrument that was filed pursuant to any of the sections mentioned in § 104 of this title, it may be adopted by the board of directors without a vote of the stockholders, or it may be proposed by the directors and submitted by them to the stockholders for adoption, in which case the procedure and vote required, if any, by § 242 of this title for amendment of the certificate of incorporation shall be applicable. If the restated certificate of incorporation restates and integrates and also further amends in any respect the certificate of incorporation, as theretofore amended or supplemented, it shall be proposed by the directors and adopted by the stockholders in the manner and by the vote prescribed by § 242 of this title or, if the corporation has not received any payment for any of its stock, in the manner and by the vote prescribed by § 241 of this title.

See 8 Del. C. § 245(b).

Primary source · Primary law

Section 103(d) permits filing effectiveness or a specified later effective time within its stated limit.

(d) Any instrument filed in accordance with subsection (c) of this section shall be effective upon its filing date. Any instrument may provide that it is not to become effective until a specified time subsequent to the time it is filed, but such time shall not be later than a time on the ninetieth day after the date of its filing.

See 8 Del. C. § 103(d).

Primary source · Primary law

Section 103(a)(2) specifies who signs instruments other than the initial incorporation instruments.

(2) All other instruments shall be signed: a. By any authorized officer of the corporation; or b. If it shall appear from the instrument that there are no such officers, then by a majority of the directors or by such directors as may be designated by the board; or c. If it shall appear from the instrument that there are no such officers or directors, then by the holders of record, or such of them as may be designated by the holders of record, of a majority of all outstanding shares of stock; or d. By the holders of record of all outstanding shares of stock.

See 8 Del. C. § 103(a)(2).

Primary source · Primary law

Section 228(e) requires notice after less-than-unanimous consent and the specified consent statement in a filed certificate.

If an action by consent under subsections (a) or (b) of this section has been taken by stockholders or members by less than unanimous consent, prompt notice of the taking of the action by consent shall be given to those stockholders or members as of the record date for the action by consent who have not consented and who would have been entitled to notice of the meeting if the action had been taken at a meeting and the record date for the notice of the meeting were the record date for the action by consent. The notice required by this subsection may be provided by a notice which constitutes a notice of internet availability of proxy materials under rules promulgated under the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. In the event that the action which is consented to is such as would have required the filing of a certificate under any other section of this title, if such action had been voted on by stockholders or by members at a meeting thereof, the certificate filed under such other section shall state, in lieu of any statement required by such section concerning any vote of stockholders or members, that consent has been given in accordance with this section.

See 8 Del. C. § 228(e).

Lawyer commentary · Commentary

In its pay-to-play conversion-block note, the model calls for updating the defined terms used in that bracketed provision to fit the specific circumstances.

If a “pay-to-play” is implemented/contemplated, consider blocking optional conversion during its pendency with language such as this bracketed provision. This is also applicable where the pay-to-play relates to tranches in a financing where later tranches are mandatory. Because the voting rights of the Preferred stock and its rights to proceeds in the event of a liquidation, dissolution, winding up, or Deemed Liquidation Event flow from its optional conversion rights under Section 4.1, the last proviso is important to avoid ambiguity over the status of those rights during any period in which optional conversion rights are suspended. Careful attention should be paid to update and use appropriate defined terms that apply in the specific circumstances.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), drafting note 47, on the § 4.1 pay-to-play proviso. The defined-term instruction is specific to that provision; it is not a general package-review step.

Lawyer commentary · Commentary

The model assigns board-size determination to the bylaws, subject to any additional charter vote.

Subject to any additional vote required by this Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Sixth.

Lawyer commentary · Commentary

The board bylaw power remains subject to additional votes required by the charter or bylaws.

Subject to any additional vote required by this Certificate of Incorporation or the Bylaws of the Corporation, in furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind any or all of the Bylaws of the Corporation.

See NVCA Model Certificate of Incorporation (Oct. 1, 2025), Article Fifth.