BYLAWS OF CLOUDIUM TECHNOLOGIES PLC
(as the Surviving Corporation)
Adopted effective as of 11:59 PM Eastern Time, July 9, 2024 (the "Effective Time")
These Bylaws of Cloudium Technologies plc, a Delaware corporation (the "Corporation"), are adopted effective as of the Effective Time in connection with that certain Agreement and Plan of Merger, dated as of January 22, 2024, by and among Cloudium Technologies plc, Stratos Merger Sub Inc., and Solara Digital Infrastructure Fund VI LP (the "Merger Agreement"), and the consummation of the transactions contemplated thereby.
At the Effective Time, pursuant to the Merger Agreement and the Certificate of Merger filed with the Secretary of State of the State of Delaware at 11:59 PM Eastern Time on July 9, 2024, Stratos Merger Sub Inc. merged with and into Cloudium Technologies plc in a reverse triangular merger, with Cloudium Technologies plc continuing as the surviving corporation. Following such merger, the Corporation became, and remains as of the Effective Time, a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP.
These Bylaws supersede and replace in their entirety the prior bylaws of the Corporation and the bylaws of Stratos Merger Sub Inc. From and after the Effective Time, these Bylaws shall constitute the bylaws of the Corporation and shall govern the conduct of its business and affairs, subject in all respects to the General Corporation Law of the State of Delaware, as amended from time to time (the "DGCL"), and the Certificate of Incorporation of the Corporation, as then in effect.
ARTICLE I — OFFICES
Section 1.1 — Registered Office
The registered office of the Corporation in the State of Delaware shall be located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent of the Corporation at such address shall be National Registered Agents Inc., or such other registered agent or registered office as may from time to time be designated by resolution of the Board of Directors and reflected in the appropriate filing made in accordance with the DGCL.
The maintenance of a registered office and registered agent in the State of Delaware is intended to satisfy the requirements of the DGCL and to provide a reliable location for service of process and receipt of official notices. Any change in the registered office or registered agent shall be made in the manner prescribed by applicable law.
Section 1.2 — Other Offices
The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
The principal business office of the Corporation shall initially be located at 600 Townsend Street, Suite 800, San Francisco, California 94103, and may thereafter be relocated to such other place as the Board of Directors may designate from time to time. The designation of a principal business office shall not limit the authority of the Corporation to conduct business, hold property, maintain books and records, or establish administrative, operational, commercial, or executive offices in any other jurisdiction.
ARTICLE II — STOCKHOLDERS
Section 2.1 — Place of Meetings
Meetings of stockholders shall be held at such place, if any, within or without the State of Delaware, as may be designated from time to time by the Board of Directors and stated in the notice of meeting or in a duly executed waiver of notice thereof.
Notwithstanding the foregoing, the Board of Directors may, in its sole discretion and to the fullest extent permitted by the DGCL, determine that any meeting of stockholders shall not be held at any place, but instead shall be held solely by means of remote communication. If authorized by the Board of Directors, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, participate in the meeting and be deemed present in person and vote at such meeting, provided that the Corporation implements such measures as are required by applicable law to verify that each person participating remotely is a stockholder or proxyholder and to maintain a record of votes and other actions taken.
Section 2.2 — Annual Meeting
An annual meeting of stockholders shall be held on such date, at such time, and at such place, if any, or solely by means of remote communication, as shall be designated by the Board of Directors from time to time.
At each annual meeting, the stockholders shall elect directors to serve in accordance with these Bylaws and shall transact such other business as may properly come before the meeting. Failure to hold an annual meeting at the designated time shall not work a forfeiture or dissolution of the Corporation or otherwise affect the validity of corporate action.
Section 2.3 — Special Meetings
Special meetings of stockholders may be called at any time by the Board of Directors, the Chairman of the Board, or the sole stockholder.
For the avoidance of doubt, following the consummation of the merger contemplated by the Merger Agreement and as a consequence of the Corporation being a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, the sole stockholder may call a special meeting of stockholders at any time, for any proper purpose, in accordance with the DGCL, the Certificate of Incorporation, and these Bylaws.
Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of such meeting. No business other than the business specified in the notice of special meeting shall be brought before, or acted upon at, such meeting.
Section 2.4 — Notice of Meetings
Written notice of each meeting of stockholders shall be given in accordance with the DGCL. Such notice shall state the place, if any, date, and hour of the meeting, the means of remote communication, if any, by which stockholders and proxyholders may be deemed present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by law, such notice shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Notice may be delivered personally, by mail, by courier, or by electronic transmission to the extent and in the manner permitted by the DGCL, provided that any stockholder receiving notice by electronic transmission shall have consented to the form and manner of such transmission to the extent required by law.
Notice shall be deemed given at the times specified in the DGCL and, where not inconsistent therewith, in accordance with Section 7.3 of these Bylaws.
Section 2.5 — Quorum
Except as otherwise provided by the DGCL, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote thereat, present in person, present by means of remote communication to the extent authorized by law, or represented by proxy, shall constitute a quorum for the transaction of business at any meeting of stockholders.
If a quorum shall not be present or represented at any meeting of stockholders, the chair of the meeting or the holders of a majority of the shares present in person, present by means of remote communication, or represented by proxy and entitled to vote thereat may adjourn the meeting from time to time to another place, if any, date, or time, without further notice other than announcement at the meeting of the place, if any, date, and time of the adjourned meeting, except as otherwise required by the DGCL. At any adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the original meeting.
Section 2.6 — Voting
Each stockholder entitled to vote at any meeting of stockholders shall be entitled to one (1) vote for each share of capital stock held by such stockholder and entitled to vote on the matter submitted to a vote.
When a quorum is present at any meeting of stockholders, the affirmative vote of the holders of a majority of the shares present in person, present by means of remote communication to the extent permitted by law, or represented by proxy and entitled to vote on the subject matter shall be the act of the stockholders, unless the vote of a greater number or voting by class is required by the DGCL, the Certificate of Incorporation, or these Bylaws.
Voting on any matter, including the election of directors, need not be by written ballot unless required by law, by the Certificate of Incorporation, or by determination of the chair of the meeting.
Section 2.7 — Action by Written Consent
Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing or by electronic transmission, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of stockholders at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of corporate action by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who would have been entitled to notice of the meeting if the action had been taken at a meeting, to the extent required by the DGCL.
As of the Effective Time, the Corporation has a sole stockholder, Solara Digital Infrastructure Fund VI LP, and accordingly written consent is expected to be the principal means by which stockholder action is taken, unless otherwise determined by the sole stockholder or required by law.
Section 2.8 — Proxies
Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing may authorize another person or persons to act for such stockholder by proxy in any manner permitted by the DGCL.
No proxy shall be voted or acted upon after three (3) years from its date, unless such proxy provides for a longer period, in which case such proxy shall be valid for the period stated therein to the fullest extent permitted by Section 212 of the DGCL or any successor provision. A proxy shall be revocable except to the extent otherwise provided by law.
Section 2.9 — Record Date
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, to vote at any such meeting, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date.
Any such record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and shall be not more than sixty (60) days, and where required by the DGCL not less than ten (10) days, before the date of such meeting, action, or other event. If no record date is fixed, the record date shall be determined in accordance with the DGCL.
Section 2.10 — Stockholder List
The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at such meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting, during ordinary business hours, at a place within the city where the meeting is to be held, if any, or as otherwise required by the DGCL. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Except as otherwise required by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 2.10, or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
ARTICLE III — BOARD OF DIRECTORS
Section 3.1 — General Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided in the DGCL or in the Certificate of Incorporation.
The Board of Directors shall have and may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute, the Certificate of Incorporation, or these Bylaws directed or required to be exercised or done by the stockholders.
Section 3.2 — Number, Election, and Term
The number of directors constituting the whole Board of Directors shall be fixed from time to time exclusively by resolution adopted by the Board of Directors or by the sole stockholder; provided, however, that the number of directors shall in no event be less than one (1).
The initial directors of the Corporation serving as of the Effective Time shall be those persons designated in the written consent of the sole stockholder dated July 9, 2024. Thereafter, directors shall be elected in such manner as may be provided by the DGCL, the Certificate of Incorporation, and these Bylaws.
Each director shall hold office until such director's successor has been duly elected and qualified, or until such director's earlier resignation, removal, disqualification, death, or incapacity.
Section 3.3 — Vacancies and Newly Created Directorships
Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the affirmative vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole stockholder.
A director elected to fill a vacancy shall hold office until the next annual meeting of stockholders and until such director's successor shall have been duly elected and qualified, unless sooner removed, resigns, dies, or becomes disqualified. A director elected to fill a newly created directorship resulting from an increase in the number of directors shall hold office for such term as is determined at the time of election, consistent with applicable law and these Bylaws.
Section 3.4 — Removal
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.
As of the Effective Time, because Solara Digital Infrastructure Fund VI LP is the sole stockholder of the Corporation, such removal power may be exercised by Solara Digital Infrastructure Fund VI LP acting in its capacity as sole stockholder.
Section 3.5 — Regular Meetings
Regular meetings of the Board of Directors may be held at such times and at such places, within or without the State of Delaware, as shall from time to time be determined by resolution of the Board of Directors.
Notice of regular meetings need not be given if the time and place, if any, of such meetings have been fixed by resolution of the Board of Directors.
Section 3.6 — Special Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board, any director, or any officer of the Corporation.
Notice of each special meeting shall be given to each director at least twenty-four (24) hours before the time of the meeting by telephone, electronic mail, facsimile transmission, personal delivery, overnight courier, or any other usual means of communication. The notice need not specify the purpose of the meeting unless required by law. Notice of any special meeting may be waived in accordance with Section 7.4 of these Bylaws.
Section 3.7 — Quorum and Voting
A majority of the total number of directors then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, except as otherwise provided by the DGCL or these Bylaws.
The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater number is required by the DGCL, the Certificate of Incorporation, or these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting.
Section 3.8 — Action by Written Consent
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission.
Any such written consent or consents or electronic transmission or transmissions shall be filed with the minutes of the proceedings of the Board of Directors or committee, as applicable, and shall have the same force and effect as a unanimous vote at a duly held meeting.
Section 3.9 — Telephonic / Electronic Meetings
Members of the Board of Directors, or of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone, videoconference, or other communications equipment by means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 3.9 shall constitute presence in person at such meeting for all purposes, including for purposes of determining whether a quorum is present.
Section 3.10 — Committees
The Board of Directors may designate one or more committees, each such committee to consist of one (1) or more directors of the Corporation, to the fullest extent permitted by the DGCL. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board of Directors establishing such committee or in these Bylaws, shall have and may exercise such powers and authority of the Board of Directors in the management of the business and affairs of the Corporation as may be delegated to it by the Board of Directors, except to the extent limited by Section 141(c) of the DGCL or any successor provision.
Unless otherwise provided by the Board of Directors in the resolution establishing a committee, the rules governing meetings, action without meetings, notice, waiver of notice, quorum, and voting requirements of the Board of Directors shall apply to each committee and its members as nearly as practicable.
Section 3.11 — Compensation of Directors
Directors may receive such compensation for their services as directors, and such reimbursement for expenses incurred in attending meetings of the Board of Directors or committees thereof or in the performance of other services for the Corporation, as may be fixed from time to time by resolution of the Board of Directors or by the sole stockholder.
Nothing contained in this Section 3.11 shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Section 3.12 — Chairman of the Board
The Board of Directors may elect from among its members a Chairman of the Board. The Chairman of the Board, if one is elected, shall preside at all meetings of the Board of Directors and at all meetings of stockholders, except as otherwise determined by the Board of Directors or if the Chairman is absent.
The Chairman of the Board shall have such other powers and perform such other duties as may from time to time be assigned by the Board of Directors. The election of a Chairman of the Board shall be optional and the absence of a Chairman shall not affect the validity of any action taken by the Board of Directors or the stockholders.
ARTICLE IV — OFFICERS
Section 4.1 — Officers Generally
The officers of the Corporation shall include a President, a Secretary, and a Treasurer, and may include one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers and agents as may be elected or appointed by the Board of Directors from time to time.
Any two (2) or more offices may be held by the same person, unless otherwise prohibited by law. The initial officers of the Corporation serving as of the Effective Time shall be those persons appointed by the written consent of the Board of Directors of the surviving corporation dated July 9, 2024.
Each officer shall have the authority and perform the duties prescribed by these Bylaws and such additional authority and duties as may be prescribed from time to time by the Board of Directors or, to the extent consistent with these Bylaws, by an officer authorized by the Board of Directors to prescribe the duties of other officers.
Section 4.2 — Election and Term of Office
The officers of the Corporation shall be elected or appointed by the Board of Directors.
Each officer shall hold office until such officer's successor has been duly elected or appointed and qualified, or until such officer's earlier resignation, removal, death, or incapacity. Election or appointment of an officer shall not of itself create any contract rights.
Section 4.3 — Removal
Any officer of the Corporation may be removed by the Board of Directors at any time, with or without cause.
Any such removal shall be without prejudice to the contract rights, if any, of the person so removed. The appointment or election of an officer shall not itself give rise to contractual rights absent a separate agreement.
Section 4.4 — Vacancies
A vacancy in any office by reason of death, resignation, removal, disqualification, or any other cause may be filled by the Board of Directors for the unexpired portion of the term or for such other period as the Board of Directors may determine.
Section 4.5 — President
The President shall be the chief executive officer of the Corporation unless the Board of Directors shall designate another officer as Chief Executive Officer.
Subject to the supervision and direction of the Board of Directors, the President shall have general supervision and control over the business and affairs of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President may execute, in the name of the Corporation, bonds, mortgages, contracts, deeds, and other instruments and documents authorized by the Board of Directors, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or these Bylaws to another officer or agent of the Corporation, or where any such execution shall be otherwise required by law.
The President shall have such further powers and perform such further duties as may from time to time be assigned by the Board of Directors.
Section 4.6 — Vice Presidents
Each Vice President, if any, shall have such powers and perform such duties as may be assigned by the Board of Directors or by the President.
In the absence of the President or in the event of the President's inability or refusal to act, the Vice President, or if there shall be more than one Vice President, the Vice Presidents in the order of their rank as fixed by the Board of Directors or, if not ranked, a Vice President designated by the Board of Directors, shall perform the duties of the President, and when so acting shall have all the powers of and be subject to all the restrictions upon the President.
Section 4.7 — Secretary
The Secretary shall keep or cause to be kept the minutes of all meetings of the stockholders and of the Board of Directors and of all committees of the Board of Directors in one or more books provided for that purpose.
The Secretary shall: act as custodian of the corporate records and of the seal of the Corporation, if any; give or cause to be given notice of all meetings of stockholders and special meetings of the Board of Directors and any committees thereof as required by statute, the Certificate of Incorporation, or these Bylaws; maintain or cause to be maintained the stock ledger and stockholder list of the Corporation; authenticate records of the Corporation; and perform such other duties as may be assigned by the Board of Directors or the President.
The Secretary may sign with the President or any other proper officer certificates for shares of the Corporation, if any are issued in certificated form, and shall perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned.
Section 4.8 — Treasurer / Chief Financial Officer
The Treasurer, who may also be designated by the Board of Directors as the Chief Financial Officer, shall have custody of the corporate funds and securities and shall keep or cause to be kept full and accurate accounts of receipts and disbursements in books belonging to the Corporation.
The Treasurer shall receive and give receipts for moneys due and payable to the Corporation from any source whatsoever, shall deposit or cause to be deposited all such moneys in the name of the Corporation in such banks, trust companies, or other depositories as shall be selected in accordance with these Bylaws or by resolution of the Board of Directors, and shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements.
The Treasurer shall render to the Board of Directors, whenever requested, an account of the financial condition of the Corporation and shall perform all duties incident to the office of Treasurer and such other duties as from time to time may be assigned by the Board of Directors or the President.
Section 4.9 — Assistant Officers
Each Assistant Secretary and Assistant Treasurer, and each other assistant officer of the Corporation, if any, shall have such powers and perform such duties as may be assigned by the Board of Directors or by the officer whom such assistant officer is designated to assist.
Without limiting the generality of the foregoing, Assistant Secretaries and Assistant Treasurers shall perform the duties delegated by the Secretary or Treasurer, respectively, or by the Board of Directors, and in the absence or disability of the Secretary or Treasurer, respectively, may perform the duties and exercise the powers of such office to the extent authorized.
Section 4.10 — Compensation
The compensation of the officers of the Corporation shall be fixed from time to time by the Board of Directors, or as otherwise determined by the sole stockholder to the extent permitted by law.
ARTICLE V — STOCK
Section 5.1 — Stock Certificates; Uncertificated Shares
The shares of the Corporation shall be represented by certificates; provided, however, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares to the fullest extent permitted by the DGCL. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.
Every holder of stock represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by, the Chairman of the Board, the President, or a Vice President, and by the Secretary or an Assistant Secretary, certifying the number of shares owned by such holder in the Corporation. Any or all of the signatures on a certificate may be facsimile signatures to the extent permitted by law.
If any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issuance.
Section 5.2 — Transfer of Shares
Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation and shall be effected, in the case of certificated shares, upon surrender to the Corporation or its transfer agent of the certificate or certificates duly endorsed or accompanied by proper evidence of succession, assignment, or authority to transfer and, in the case of uncertificated shares, upon receipt of proper transfer instructions from the registered holder thereof or from a duly authorized attorney or other legal representative.
The Board of Directors may appoint one or more transfer agents and one or more registrars and may require all certificates, if any, to bear the signature of any such transfer agent or registrar.
For historical reference only, Cascade Corporate Services Inc. previously served as transfer agent for publicly traded shares of Cloudium Technologies plc prior to the merger contemplated by the Merger Agreement. Following such merger, the Corporation is a privately held wholly owned subsidiary, and the Board of Directors may determine such transfer administration arrangements as are appropriate for its post-merger capital structure and ownership.
Section 5.3 — Registered Stockholders
The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares of stock to receive dividends or other distributions, to vote such shares, to receive notices, and for all other purposes, and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not the Corporation shall have notice thereof, except as otherwise required by law.
Section 5.4 — Lost, Stolen, or Destroyed Certificates
The Board of Directors may direct that a new certificate or uncertificated shares be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen, or destroyed.
When authorizing such issuance of a replacement certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent thereto, require the owner of such lost, stolen, or destroyed certificate, or such owner's legal representative, to give the Corporation a bond or other indemnity in such sum and with such surety or sureties as the Board of Directors may direct, sufficient to indemnify the Corporation, its transfer agents, and registrars against any claim that may be made against any of them on account of the alleged loss, theft, or destruction of such certificate or the issuance of such replacement.
Section 5.5 — Record Date
The provisions of Section 2.9 of these Bylaws shall apply to the fixing of record dates with respect to shares of stock of the Corporation for all purposes contemplated by these Bylaws, the Certificate of Incorporation, and the DGCL.
ARTICLE VI — INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 — Right to Indemnification
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as the same now exists or as it may hereafter be amended, any person who was or is made or is threatened to be made a party to, or is otherwise involved in, any threatened, pending, or completed action, suit, proceeding, or investigation, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation, or while a director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, including service with respect to an employee benefit plan, against all expenses, liabilities, and losses actually and reasonably incurred or suffered by such person in connection therewith.
Such expenses, liabilities, and losses may include, without limitation, attorneys' fees, judgments, fines, excise taxes, penalties, and amounts paid in settlement. The rights provided by this Section 6.1 shall apply whether the basis of the Proceeding is alleged action in an official capacity as a director, officer, employee, or agent or in any other capacity while serving in such office or position.
The right to indemnification conferred by this Article VI shall be a contract right and shall include the right to be paid by the Corporation the expenses incurred in defending any such Proceeding in advance of its final disposition to the fullest extent provided in Section 6.2.
Section 6.2 — Advancement of Expenses
Expenses, including attorneys' fees, incurred by a director or officer of the Corporation in defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under the DGCL, these Bylaws, or otherwise.
Such undertaking shall be accepted without reference to the financial ability of the person seeking advancement to make repayment and may be an unlimited general undertaking. Advancement of expenses as provided in this Section 6.2 shall be made promptly, and in any event within such period as may be required by applicable law or by any applicable indemnification agreement.
Section 6.3 — Indemnification of Employees and Agents
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and advancement of expenses to any employee or agent of the Corporation or to any person serving at the request of the Corporation as an employee or agent of another entity or enterprise, on the same terms or on such different terms as the Board of Directors may determine.
Any such indemnification or advancement shall be in addition to, and not in limitation of, any rights available to such person under applicable law, contract, or otherwise.
Section 6.4 — Non-Exclusivity of Rights
The rights to indemnification and advancement of expenses conferred by this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors, or otherwise.
Without limiting the foregoing, the Corporation may enter into one or more indemnification agreements with any director, officer, employee, or agent of the Corporation, and any such agreement may provide rights that are broader than, or supplemental to, those set forth in these Bylaws to the extent permitted by law.
Section 6.5 — Insurance
The Corporation may purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or who is or was serving at the request of the Corporation in any such capacity for another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL.
Section 6.6 — Survival
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall continue as to a person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, administrators, legal representatives, and estate of such person.
No amendment, repeal, or modification of this Article VI shall adversely affect any right or protection existing at the time of such amendment, repeal, or modification with respect to any acts or omissions occurring prior thereto.
Section 6.7 — Limitation on Indemnification
Notwithstanding anything contained in this Article VI to the contrary, except as otherwise required by law, the Corporation shall not be obligated to indemnify or advance expenses to any director or officer in connection with a Proceeding, or part thereof, initiated by such person, except for a Proceeding authorized or consented to by the Board of Directors or a Proceeding brought to enforce rights to indemnification or advancement under this Article VI, the Certificate of Incorporation, any agreement, or applicable law.
In addition, no indemnification or advancement of expenses shall be made to the extent such indemnification or advancement is prohibited by applicable law.
ARTICLE VII — MISCELLANEOUS PROVISIONS
Section 7.1 — Fiscal Year
The fiscal year of the Corporation shall end on September 30 of each year, unless otherwise fixed by resolution of the Board of Directors.
This fiscal year-end is intended to be consistent with the historical fiscal year of Cloudium Technologies plc prior to the Effective Time. Nothing in this Section 7.1 shall limit the authority of the Board of Directors to change the fiscal year of the Corporation if it determines that a different fiscal year is advisable for accounting, tax, financing, operational, or other business reasons.
Section 7.2 — Corporate Seal
The Board of Directors may adopt a corporate seal for the Corporation in such form as it shall determine, and may alter the same at its pleasure.
The absence of a corporate seal on any instrument executed on behalf of the Corporation shall not affect the validity of such instrument unless otherwise required by law.
Section 7.3 — Notices
Whenever notice is required to be given under the DGCL, the Certificate of Incorporation, or these Bylaws, such notice may be given in writing by mail, by hand delivery, by nationally recognized overnight courier, or by electronic transmission, to the extent permitted by law.
If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder, director, or other person entitled thereto at such person's address as it appears on the records of the Corporation. If delivered by overnight courier, such notice shall be deemed given when delivered to such courier service with charges prepaid. If given by hand delivery, such notice shall be deemed given when actually delivered. If given by electronic transmission, such notice shall be deemed given when transmitted to the electronic mail address, facsimile number, or other electronic contact information furnished by the person entitled to notice, in each case to the extent permitted by the DGCL.
Section 7.4 — Waiver of Notice
Whenever any notice is required to be given under the DGCL, the Certificate of Incorporation, or these Bylaws, a written waiver thereof, signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting has not been lawfully called or convened.
Section 7.5 — Checks, Drafts, and Notes
All checks, drafts, electronic funds transfer instructions, or other orders for the payment of money, and all notes, bonds, debentures, or other evidences of indebtedness issued in the name of the Corporation, shall be signed, authorized, or otherwise approved by such officer or officers, agent or agents, of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
Section 7.6 — Contracts and Instruments
The Board of Directors may authorize any officer or officers, agent or agents, in the name of and on behalf of the Corporation, to enter into any contract or execute and deliver any instrument or document, and such authority may be general or confined to specific instances.
Unless so authorized by the Board of Directors or expressly authorized by these Bylaws, no officer, agent, or employee shall have any power or authority to bind the Corporation by any contract or engagement, to pledge its credit, or to render it liable monetarily for any purpose or in any amount.
Section 7.7 — Loans
No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by resolution of the Board of Directors. Such authority may be general or confined to specific instances.
Without limiting the generality of the foregoing, any borrowing, incurrence of indebtedness, guarantee, lien granting, or related financing action by the Corporation shall in all events remain subject to the terms and conditions of that certain Credit Agreement dated July 9, 2024, among the Corporation, as borrower, Meridian Atlantic Bank, N.A., as administrative agent, and the lenders party thereto, as the same may be amended, restated, supplemented, refinanced, replaced, or otherwise modified from time to time, including any covenants therein governing borrowing authority, permitted indebtedness, liens, restricted payments, and related corporate actions.
Section 7.8 — Dividends and Distributions
Subject to the DGCL, the Certificate of Incorporation, and any applicable contractual restrictions binding on the Corporation, dividends upon the shares of capital stock of the Corporation and other distributions with respect thereto may be declared by the Board of Directors at any regular or special meeting, or by unanimous written consent, and may be paid in cash, property, or shares of the Corporation's capital stock.
Any such dividend or distribution shall also be subject to the terms of any applicable financing arrangement, including the restricted payments covenants and related limitations contained in the Credit Agreement referred to in Section 7.7, to the extent then in effect.
Section 7.9 — Books and Records
The Corporation shall keep correct and complete books and records of account, minutes of the proceedings of its stockholders, Board of Directors, and committees of the Board of Directors, and a record of its stockholders, in each case in such form as may be permitted by law.
Such books and records may be kept at the registered office of the Corporation, at its principal place of business, or at such other place or places, within or without the State of Delaware, as may from time to time be designated by the Board of Directors. The Corporation may maintain its records in physical form, electronic form, or any combination thereof, to the extent permitted by applicable law.
Section 7.10 — Governing Law
These Bylaws and the internal affairs of the Corporation shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws that would require the application of the laws of another jurisdiction.
Section 7.11 — Forum Selection
Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for:
(a) any derivative action or proceeding brought on behalf of the Corporation;
(b) any action asserting a claim of breach of fiduciary duty owed by any current or former director, officer, or other employee of the Corporation to the Corporation or the Corporation's stockholders;
(c) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation, or these Bylaws; or
(d) any action asserting a claim governed by the internal affairs doctrine.
If the Court of Chancery of the State of Delaware does not have jurisdiction over any such action or proceeding, then, unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for such action or proceeding shall be the United States District Court for the District of Delaware, to the fullest extent permitted by law.
Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 7.11.
Section 7.12 — Severability
If any provision of these Bylaws, or the application of any such provision to any person or circumstance, shall be held invalid, illegal, or unenforceable to any extent, the remainder of these Bylaws, and the application of such provision to persons or circumstances other than those as to which it is held invalid, illegal, or unenforceable, shall not be affected thereby and shall remain in full force and effect to the fullest extent permitted by law.
ARTICLE VIII — AMENDMENTS
Section 8.1 — Amendments by the Board of Directors