STATE OF DELAWARE
CERTIFICATE OF INCORPORATION
A STOCK CORPORATION
Pursuant to the General Corporation Law of the State of Delaware (Title 8, Delaware Code)
Delaware Secretary of State Division of Corporations
Filed: February 24, 2025
File Number: 7291034
CERTIFICATE OF INCORPORATION
OF
HARROWGATE VELOCITY MERGER SUB INC.
The undersigned, being a natural person of the age of eighteen years or older, for the purpose of forming a corporation pursuant to the provisions of the General Corporation Law of the State of Delaware (Title 8, Delaware Code, as amended from time to time, the "DGCL"), does hereby certify as follows:
ARTICLE FIRST: NAME
The name of the corporation is Harrowgate Velocity Merger Sub Inc. (the "Corporation").
ARTICLE SECOND: REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. The name of the registered agent of the Corporation at such address is Capitol Registered Agents LLC. The registered agent is a Delaware limited liability company organized and existing under the laws of the State of Delaware.
ARTICLE THIRD: PURPOSE
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 the State of Delaware. Without limiting the generality of the foregoing, the Corporation is formed solely to effectuate a merger transaction with VeloPay Systems, Inc., a Delaware corporation ("VeloPay"), pursuant to a reverse triangular merger under Section 251 of the Delaware General Corporation Law (the "Merger"), and to engage in all acts and activities related thereto or incidental thereto, including, without limitation, the execution and delivery of any and all agreements, certificates, instruments, and documents, and the taking of any and all actions, as may be necessary, appropriate, advisable, or convenient in connection with the consummation of the Merger and any transactions contemplated thereby.
ARTICLE FOURTH: AUTHORIZED CAPITAL STOCK
The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares. All such shares shall be of a single class designated as Common Stock, with a par value of $0.01 per share. No other classes or series of stock are authorized. The aggregate par value of all authorized shares of capital stock of the Corporation having par value is Ten Dollars ($10.00).
The holders of the Common Stock shall be entitled to one (1) vote per share on all matters submitted to a vote of the stockholders of the Corporation. Subject to the rights, if any, of any holders of any class or series of stock specifically provided for or as may be fixed from time to time pursuant to the provisions of this Certificate of Incorporation, the holders of shares of Common Stock shall share ratably in all dividends, if any, as may be declared from time to time by the Board of Directors of the Corporation in its discretion from funds legally available therefor. In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, after the payment or provision for payment of all debts and liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to share ratably in all remaining assets of the Corporation available for distribution to its stockholders.
ARTICLE FIFTH: INCORPORATOR
The name and mailing address of the sole incorporator of the Corporation are as follows:
Name: Megan Chu
Address: c/o Calderwood & Harkness LLP, 787 Seventh Avenue, 38th Floor, New York, New York 10019
The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware and the election and qualification of the initial director named herein.
ARTICLE SIXTH: BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors. The number of directors constituting the initial Board of Directors of the Corporation shall be one (1). The name and mailing address of the person who is to serve as the initial director of the Corporation, to serve until the first annual meeting of stockholders of the Corporation or until such director's successor is duly elected and qualified, or until such director's earlier death, resignation, or removal, is as follows:
Name: Priya Deshmukh
Address: c/o Harrowgate Capital Management IV LLC, 300 King Street, Suite 4200, Wilmington, Delaware 19801
The number of directors constituting the Board of Directors may thereafter be increased or decreased from time to time in the manner provided in the bylaws of the Corporation; provided, however, that the number of directors shall in no event be less than one (1). The election of directors need not be by written ballot unless the bylaws of the Corporation so provide.
ARTICLE SEVENTH: LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
A director 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, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Without limiting the generality of the foregoing, a director 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, except for liability (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL (relating to unlawful payment of dividends, unlawful stock purchase, or unlawful redemption), or (iv) for any transaction from which the director derived an improper personal benefit.
The foregoing provision is intended to be consistent with, and shall be interpreted in accordance with, Section 102(b)(7) of the DGCL.
If the DGCL is amended after the filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended from time to time. No repeal or modification of this Article SEVENTH shall adversely affect any right or protection of a director of the Corporation existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director occurring prior to, such repeal or modification.
ARTICLE EIGHTH: INDEMNIFICATION
Section 8.1. Right to Indemnification. The Corporation shall, to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to, or is otherwise involved in (as a witness or otherwise), any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that he or she is or was a director or officer of the Corporation, or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, member, trustee, or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise (an "Indemnitee"), from and against any and all claims, liabilities, losses, damages, judgments, fines, penalties, amounts paid in settlement, and expenses (including attorneys' fees, costs, and charges) actually and reasonably incurred by such Indemnitee in connection with such Proceeding, and such indemnification shall continue as to an Indemnitee who has ceased to be a director or officer of the Corporation and shall inure to the benefit of such Indemnitee's heirs, executors, and administrators.
The Corporation may, by action of its Board of Directors, provide indemnification and hold harmless rights to any person who is or was an employee or agent of the Corporation, or who is or was serving at the request of the Corporation as a director, officer, employee, member, trustee, or agent of another corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise, to the fullest extent of the provisions of this Article EIGHTH with respect to the indemnification of directors and officers of the Corporation, or to any lesser extent as the Board of Directors may determine in its discretion.
Section 8.2. Advancement of Expenses. The Corporation shall, to the fullest extent not prohibited by applicable law, pay or advance the expenses (including attorneys' fees, costs, and charges) incurred by an Indemnitee in defending or otherwise participating in any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment or advancement of expenses in advance of the final disposition of a Proceeding shall be made only upon receipt of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so paid or advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this Article EIGHTH or otherwise. The rights to indemnification and advancement of expenses conferred by this Article EIGHTH shall not be exclusive of any other right which any Indemnitee may have or hereafter acquire under any statute, any provision of this Certificate of Incorporation, the bylaws of the Corporation, any agreement, any vote of stockholders or disinterested directors, or otherwise.
Section 8.3. Non-Exclusivity of Rights. The rights conferred on any Indemnitee by this Article EIGHTH shall not be exclusive of any other rights which such Indemnitee may have or hereafter acquire under any applicable statute, provision of this Certificate of Incorporation, the bylaws of the Corporation, any agreement, any vote of the stockholders or disinterested directors of the Corporation, or otherwise. No repeal or modification of this Article EIGHTH shall in any way diminish or adversely affect the rights of any current or former director, officer, employee, or agent of the Corporation hereunder in respect of any occurrence or matter arising prior to any such repeal or modification.
Section 8.4. Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or of any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan, or other enterprise against any expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the DGCL.
ARTICLE NINTH: AMENDMENT OF CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock of the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of a majority of the outstanding shares of stock entitled to vote thereon shall be required to amend, alter, change, or repeal, or adopt any provision as part of, this Certificate of Incorporation.
ARTICLE TENTH: AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred upon the Board of Directors by the laws of the State of Delaware, the Board of Directors of the Corporation is hereby expressly authorized to adopt, amend, or repeal the bylaws of the Corporation by the affirmative vote of a majority of the whole Board of Directors. The stockholders of the Corporation shall also have the power to adopt, amend, or repeal the bylaws of the Corporation. The grant of authority to the Board of Directors to adopt, amend, or repeal the bylaws of the Corporation shall not divest the stockholders of the power, nor limit the power of the stockholders, to adopt, amend, or repeal the bylaws.
ARTICLE ELEVENTH: SOLE STOCKHOLDER
The sole stockholder of the Corporation shall be Harrowgate Private Equity Fund IV LP, a Delaware limited partnership (EIN: 87-4231956), with an address at 300 King Street, Suite 4200, Wilmington, Delaware 19801 (the "Sole Stockholder"). All one thousand (1,000) authorized shares of Common Stock of the Corporation shall be issued to the Sole Stockholder upon incorporation, in consideration for the payment of the aggregate par value thereof in the amount of Ten Dollars ($10.00). The Sole Stockholder, as the holder of all issued and outstanding shares of Common Stock of the Corporation, may act by written consent in lieu of a meeting of stockholders in accordance with Section 228 of the DGCL and the bylaws of the Corporation.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned, being the sole incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, has executed, signed, and acknowledged this Certificate of Incorporation this 24th day of February, 2025.
SOLE INCORPORATOR:
By: ________
Name: Megan Chu
Sole Incorporator
Address:
c/o Calderwood & Harkness LLP 787 Seventh Avenue, 38th Floor New York, New York 10019
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILING ENDORSEMENT
I, Jeffrey W. Bullock, Secretary of State of the State of Delaware, do hereby certify that the above and foregoing is a true and correct copy of the Certificate of Incorporation of Harrowgate Velocity Merger Sub Inc., filed in this office on the date indicated below.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Dover this 24th day of February, 2025.
________________________________________
Jeffrey W. Bullock Secretary of State of the State of Delaware
Authentication: 205103482 Date: 02-24-25
[SEAL]
This Certificate of Incorporation was prepared by Calderwood & Harkness LLP, 787 Seventh Avenue, 38th Floor, New York, New York 10019, as counsel to Harrowgate Capital Management IV LLC, in connection with the proposed merger of Harrowgate Velocity Merger Sub Inc. with and into VeloPay Systems, Inc.
| Entity Name: | Harrowgate Velocity Merger Sub Inc. |
| Entity Type: | Corporation (Stock) |
| Filed: | February 24, 2025 |
| File Number: | 7291034 |
| Effective Date: | February 24, 2025 |
| EIN (Internal Reference): | 93-1847265 |