CERTIFICATE OF MERGER
Merging
Stratos Merger Sub Inc., a Delaware corporation,
with and into
Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales
(pursuant to Section 252 of the General Corporation Law of the State of Delaware)
Delaware Secretary of State Filed: 11:59 PM ET, July 9, 2024 DE File No. (Merger Sub): 7923841
Pursuant to Section 252 of the General Corporation Law of the State of Delaware (the "DGCL"), the undersigned does hereby certify the following:
FIRST: The name and jurisdiction of incorporation or formation of each of the constituent entities that are parties to the merger are as follows:
(a) Stratos Merger Sub Inc. (the "Merger Sub"), a corporation incorporated under the laws of the State of Delaware. Merger Sub was incorporated on January 8, 2024, and its file number assigned by the Secretary of State of the State of Delaware is 7923841. The registered office of Merger Sub in the State of Delaware is located at 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the name of its registered agent at such address is National Registered Agents Inc. Merger Sub is the merging corporation and shall not survive the merger.
(b) Cloudium Technologies plc (the "Company"), a public limited company incorporated under the laws of England and Wales, with company number 09734521 as assigned by the Registrar of Companies for England and Wales. The registered office of the Company is located at 45 Broadwick Street, London W1F 0DB, United Kingdom. The Company's United States employer identification number (EIN) is 83-2196754. The Company is the surviving entity of the merger.
SECOND: An Agreement and Plan of Merger, dated as of January 22, 2024 (as the same may have been amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), was duly executed by and among (i) Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales, (ii) Stratos Merger Sub Inc., a corporation incorporated under the laws of the State of Delaware, and (iii) Solara Digital Infrastructure Fund VI LP, a limited partnership organized under the laws of the State of Delaware (EIN: 87-4523190) ("Parent"). The Merger Agreement governs and sets forth the terms and conditions of the merger of Stratos Merger Sub Inc. with and into Cloudium Technologies plc (the "Merger"), including the manner and basis of converting the shares of each constituent entity into shares, obligations, or other securities of the surviving corporation or into cash or other consideration.
THIRD: The name of the surviving entity of the Merger shall be Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) (the "Surviving Corporation"). Upon the effectiveness of the Merger, Cloudium Technologies plc shall continue its existence as the Surviving Corporation under the laws of the State of Delaware, as a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP. Stratos Merger Sub Inc. shall cease to exist as a separate entity upon the effectiveness of the Merger, and its separate corporate existence shall be merged into and absorbed by the Surviving Corporation, in accordance with the provisions of Section 252 of the DGCL.
FOURTH: The Merger Agreement and the Merger were duly authorized, adopted, and approved by each of the constituent entities in accordance with the applicable provisions of the DGCL and the applicable laws of England and Wales, as follows:
(a) Stratos Merger Sub Inc.
(i) The Merger Agreement and the Merger contemplated thereby were duly adopted and approved by the board of directors of Stratos Merger Sub Inc. by unanimous written consent in lieu of a meeting, dated January 22, 2024, in accordance with Section 141(f) of the DGCL, and the board of directors of Stratos Merger Sub Inc. declared the Merger Agreement and the transactions contemplated thereby, including the Merger, to be advisable and in the best interests of Stratos Merger Sub Inc. and its sole stockholder and recommended that the sole stockholder of Stratos Merger Sub Inc. adopt and approve the Merger Agreement and the Merger.
(ii) The Merger Agreement and the Merger contemplated thereby were duly adopted and approved by the written consent of Solara Digital Infrastructure Fund VI LP, as the sole stockholder of Stratos Merger Sub Inc., dated January 22, 2024, in accordance with Sections 228 and 252 of the DGCL.
(iii) The foregoing approvals were effected in accordance with the requirements of Sections 228, 251, and 252 of the DGCL.
(b) Cloudium Technologies plc
(i) The Merger Agreement and the Merger contemplated thereby were duly authorized and approved by the board of directors of Cloudium Technologies plc, which determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, were fair to and in the best interests of Cloudium Technologies plc and its stockholders and recommended that the stockholders of Cloudium Technologies plc adopt and approve the Merger Agreement and the Merger.
(ii) The Merger Agreement and the Merger contemplated thereby were duly adopted and approved by the requisite vote of the stockholders of Cloudium Technologies plc at a special meeting of stockholders duly called and held on May 20, 2024, at which approximately 82.4% of the shares voted were voted in favor of the adoption of the Merger Agreement and the approval of the Merger, in accordance with the applicable provisions of the DGCL, the applicable laws of England and Wales (including Part 26 of the Companies Act 2006, as applicable), and the articles of association of Cloudium Technologies plc.
(iii) The approval was obtained in accordance with all applicable requirements of the laws of England and Wales and the DGCL, including, without limitation, Section 252 of the DGCL.
FIFTH: The total number of shares of capital stock that Stratos Merger Sub Inc. was authorized to issue was 1,000 shares of common stock, par value $0.01 per share. All 1,000 authorized shares of common stock of Stratos Merger Sub Inc. were duly issued and outstanding, and all such shares were held of record by Solara Digital Infrastructure Fund VI LP, as the sole stockholder of Stratos Merger Sub Inc.
SIXTH: As of the date of the Merger Agreement, Cloudium Technologies plc had 184,200,000 shares of common stock issued and outstanding. The shares of common stock of Cloudium Technologies plc were listed and traded on the Nasdaq Global Select Market under the ticker symbol "CLDM."
SEVENTH: At the effective time of the Merger (as defined below, the "Effective Time"), by virtue of the Merger and without any action on the part of any holder of shares of any constituent entity, the following shall occur:
(a) Each share of common stock of Cloudium Technologies plc issued and outstanding immediately prior to the Effective Time (other than (i) shares held in the treasury of Cloudium Technologies plc, (ii) shares held directly by Stratos Merger Sub Inc. or Solara Digital Infrastructure Fund VI LP or any of their respective wholly owned subsidiaries, and (iii) shares subject to the Rollover Agreements described in paragraph (b) below) shall be converted automatically into the right to receive $36.92 in cash, without interest and subject to any applicable withholding of taxes (the "Merger Consideration").
(b) Shares of common stock of Cloudium Technologies plc that are subject to: (I) the Rollover Agreement, dated as of January 22, 2024, by and between Solara Digital Infrastructure Fund VI LP and Jonathan Hargrove, pursuant to which 50% of the 7,736,400 shares of common stock of Cloudium Technologies plc held by Jonathan Hargrove (representing a value of approximately $142,814,544 based on the Merger Consideration) shall be treated in accordance with the terms of such Rollover Agreement and converted into equity interests in the Surviving Corporation as set forth therein; and (II) the Rollover Agreement, dated as of January 22, 2024, by and between Solara Digital Infrastructure Fund VI LP and Pinnacle Growth Ventures LLC, pursuant to which 60% of the 21,367,200 shares of common stock of Cloudium Technologies plc held by Pinnacle Growth Ventures LLC (representing a value of approximately $473,241,408 based on the Merger Consideration) shall be treated in accordance with the terms of such Rollover Agreement and converted into equity interests in the Surviving Corporation as set forth therein (the agreements described in clauses (I) and (II) collectively, the "Rollover Agreements").
(c) Each share of common stock, par value $0.01 per share, of Stratos Merger Sub Inc. issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid, and nonassessable share of common stock of the Surviving Corporation.
(d) All shares of common stock of Cloudium Technologies plc converted into the right to receive the Merger Consideration pursuant to paragraph (a) above shall be automatically cancelled and retired at the Effective Time and shall cease to exist, and each holder of any such shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest, upon surrender of the certificate formerly representing such shares (or an appropriate affidavit of loss in lieu thereof) or the transfer of such shares in book-entry form, in each case in accordance with the terms and conditions set forth in the Merger Agreement.
EIGHTH: The certificate of incorporation of the Surviving Corporation shall be amended and restated in its entirety at the Effective Time so as to read as set forth in Exhibit B to the Merger Agreement, which Amended and Restated Certificate of Incorporation of the Surviving Corporation was filed with the Secretary of State of the State of Delaware on July 9, 2024, and such Amended and Restated Certificate of Incorporation shall be the certificate of incorporation of the Surviving Corporation until thereafter amended in accordance with its terms, the DGCL, and the Merger Agreement.
NINTH: This Certificate of Merger shall become effective at 11:59 PM, Eastern Time, on July 9, 2024 (the "Effective Time"), in accordance with Section 103(d) of the DGCL.
TENTH: An executed copy of the Merger Agreement is on file at the principal place of business of the Surviving Corporation, located at 600 Townsend Street, Suite 800, San Francisco, California 94103. A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of either constituent entity in the Merger, in accordance with Section 252(c) of the DGCL.
ELEVENTH: This Certificate of Merger is filed pursuant to Section 252 of the DGCL. The Merger Agreement, and the rights and obligations of the parties thereunder, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the undersigned has caused this Certificate of Merger to be duly executed as of July 9, 2024.
STRATOS MERGER SUB INC.
By: ________
Name: David R. Kowalski
Title: President
CLOUDIUM TECHNOLOGIES PLC
By: ________
Name: Jonathan Hargrove
Title: Chief Executive Officer and Director
By: ________
Name: Nadia Chowdhury
Title: General Counsel and Authorized Signatory
SOLARA DIGITAL INFRASTRUCTURE FUND VI LP
By: Solara Fund VI GP LLC, its general partner
By: ________
Name: Marcus Elliston
Title: Authorized Person
[Signature Page to Certificate of Merger]