Amended & Restated Certificate of Incorporation
For Informational Purposes Only
The foundational charter document filed with the Delaware Secretary of State when a startup closes a priced equity financing round. Establishes preferred stock designations, protective provisions, conversion mechanics, and anti-dilution protections.
What This Document Does
The Amended and Restated Certificate of Incorporation (A&R COI) replaces a company’s original certificate of incorporation upon the closing of a preferred stock financing. It is the single most important corporate document a venture-backed startup will file—it defines the authorized capital structure, designates each series of preferred stock, and establishes the rights, preferences, and restrictions that govern the relationship between preferred investors and common stockholders. Every subsequent corporate action—from issuing stock options to approving a merger—is constrained by the terms of this document.
Why Every Financing Requires This
Authorizes all classes and series of stock, setting the maximum number of shares the company can issue without further stockholder approval.
Creates the Series Seed (or Series A) preferred stock class with specific rights to dividends, liquidation preference, and conversion.
Establishes a veto framework requiring preferred stockholder consent for major corporate actions—mergers, new debt, charter amendments, and more.
Implements broad-based weighted average anti-dilution adjustment to protect investors against future down-round pricing.
Key Articles Explained
Article IV — Authorized Capital Stock
Sets the total number of authorized shares across all classes. Includes designated Series Seed Preferred Stock shares, Common Stock, and blank-check preferred authority for future series. Par value is set at $0.0001 per share. The authorized share count must be sufficient to cover the option pool, outstanding common, and all preferred shares including any anti-dilution adjustments.
Article V — Rights, Preferences & Restrictions of Preferred Stock
The core of the document. Ten sections covering: (1) Non-cumulative dividends payable pari passu with common on an as-converted basis; (2) Liquidation preference equal to the original issue price plus declared but unpaid dividends, with deemed liquidation event mechanics and 15-day advance notice requirements; (3) Voting rights on an as-converted basis with designated board seats for preferred, common, and mutual directors; (4) Fourteen protective provisions requiring majority preferred approval for charter amendments, new senior securities, dividends, mergers, asset sales, option pool increases, and incurrence of material debt; (5) Optional conversion at any time at the applicable conversion rate; (6) Automatic conversion upon a Qualified IPO or majority preferred consent; (7) Broad-based weighted average anti-dilution with the standard CP2 = CP1 x (A+B)/(A+C) formula and eight categories of excluded issuances; (8) No redemption rights; (9) No reissuance of converted shares; (10) Record date notice requirements.
Article IX — DGCL Section 203 Opt-Out
Opts the company out of Delaware’s anti-takeover statute (Section 203), which would otherwise restrict business combinations with 15%+ stockholders. Venture-backed companies routinely opt out because the statute can interfere with future financing and M&A transactions where existing investors hold large blocks.
Article X — Liability Exculpation & Indemnification
Eliminates personal liability for directors and officers under DGCL Section 102(b)(7) for breach of fiduciary duty of care (but not duty of loyalty or bad faith). Provides indemnification and advancement of expenses to the fullest extent permitted by the DGCL, including insurance coverage.
Article XII — Corporate Opportunities
Implements a dual-fiduciary carve-out under DGCL Section 122(17) for venture investor directors. Recognizes that VC board members serve on multiple boards and may encounter business opportunities relevant to both the company and their other portfolio companies. The carve-out eliminates the obligation to present such opportunities to the company, reducing conflict-of-interest exposure for investor directors.
Emerging Provisions (2025-2026)
OISP/DSP Protective Provisions
The October 2025 NVCA update introduced protective provision language addressing the Outbound Investment Security Program (OISP) and Data Security Program (DSP). Companies must obtain preferred stockholder consent before engaging in any covered activity under OISP or becoming a “covered person” under DSP. This template includes these provisions in the Article V protective provisions framework.
Updated Forum Selection Clause
Following the Salzberg v. Sciabacucchi decision, this template includes both (a) Court of Chancery as the exclusive forum for internal corporate claims and (b) federal district courts as the exclusive forum for Securities Act claims. This dual-forum provision is now standard in EDGAR filings and the NVCA model documents.
Updated DGCL Section 122(17) Language
The corporate opportunities provision references updated Section 122(17) of the DGCL (effective August 2023), which replaced the common-law Broz/Corporate Opportunity doctrine with a statutory safe harbor. This gives venture investor directors clearer protection when they encounter opportunities relevant to multiple portfolio companies.
How to Use This Template
This template is designed for a Delaware C corporation closing its first priced preferred stock financing (Series Seed or Series A). Complete all bracketed placeholders including company name, authorized share counts, original issue price, board composition, IPO threshold, and indebtedness limits. The template includes both participating and non-participating liquidation preference alternatives—select the appropriate structure and delete the unused option. File the executed document with the Delaware Secretary of State prior to or simultaneously with closing. This template should be reviewed and customized by qualified legal counsel before use in any transaction.
Disclaimer: This template is provided for informational and educational purposes only and does not constitute legal advice. Montague Law recommends consulting with qualified legal counsel before using this or any legal document. Use of this template does not create an attorney-client relationship. Laws and regulations may have changed since this template was last updated.