1041-00003 · Solara Digital Infrastructure LP · Closing

surviving-corp-certificate-of-incorporation-filed.docx DOCUMENT M&A / Corporate

33 / 155 ← → ✕

Contract analysis Extract to table

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

CLOUDIUM TECHNOLOGIES PLC

(As the Surviving Corporation)

Filed with the Secretary of State of the State of Delaware

July 9, 2024

Pursuant to Sections 242, 245, and 252 of the General Corporation Law of the State of Delaware

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

CLOUDIUM TECHNOLOGIES PLC

Cloudium Technologies plc (the "Corporation"), a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

FIRST: The Corporation was originally incorporated under the name "Cloudium Technologies plc" pursuant to the laws of England and Wales, with Company Number 09734521, as registered with Companies House in Cardiff, Wales, United Kingdom.

SECOND: The Corporation is the surviving corporation in a merger (the "Merger") with Stratos Merger Sub Inc., a corporation organized under the laws of the State of Delaware (Delaware File Number 7923841) ("Merger Sub"), pursuant to that certain Agreement and Plan of Merger, dated as of January 22, 2024 (the "Merger Agreement"), by and among the Corporation, Merger Sub, and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI" or the "Sole Stockholder"), pursuant to which Merger Sub was merged with and into the Corporation, with the Corporation continuing as the surviving corporation in the Merger and becoming domesticated in and governed by the laws of the State of Delaware.

THIRD: A Certificate of Merger with respect to the Merger was duly filed with the Secretary of State of the State of Delaware on July 9, 2024, and became effective at 11:59 PM Eastern Time on July 9, 2024.

FOURTH: As a result of the Merger and the filing of the Certificate of Merger, the Corporation is now domesticated in and governed by the laws of the State of Delaware as a Delaware corporation, and all of the provisions of the General Corporation Law of the State of Delaware (as it may be amended from time to time, the "DGCL") are applicable to the Corporation.

FIFTH: This Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation") was duly adopted in accordance with Sections 242, 245, and 252 of the DGCL. This Certificate of Incorporation restates and integrates and further amends the certificate of incorporation of the Corporation, as the surviving corporation in the Merger, as hereinafter set forth in its entirety.

SIXTH: The text of the certificate of incorporation of the Corporation, as the surviving corporation in the Merger, is hereby amended and restated in its entirety to read as follows:

ARTICLE I

NAME. The name of the corporation is Cloudium Technologies plc (the "Corporation"). The Corporation may conduct business under this name or under any assumed name, trade name, or fictitious business name as the Board of Directors may determine from time to time, subject to compliance with applicable law.

ARTICLE II

REGISTERED OFFICE AND REGISTERED AGENT

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware 19801. The name of the registered agent of the Corporation at such address is National Registered Agents Inc. The Corporation may, from time to time, change its registered office or registered agent, or both, by filing a statement with the Secretary of State of the State of Delaware as provided by the DGCL.

ARTICLE III

PURPOSE. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation shall have all the powers and privileges conferred by the DGCL and any other applicable law, together with any incidental powers necessary or convenient to the conduct, promotion, or attainment of the business or purposes of the Corporation.

ARTICLE IV

AUTHORIZED CAPITAL STOCK

Section 4.1 *Authorized Shares.*

The total number of shares of all classes of capital stock that the Corporation is authorized to issue is one thousand (1,000) shares of common stock, par value $0.01 per share (the "Common Stock").

For the avoidance of doubt, in connection with the Merger, all one hundred eighty-four million two hundred thousand (184,200,000) ordinary shares of the Corporation previously outstanding and listed for trading on the Nasdaq Global Select Market under the ticker symbol "CLDM" were cancelled and converted into the right to receive $36.92 per share in cash, without interest and subject to applicable withholding taxes, as merger consideration pursuant to the Merger Agreement. The authorized capital structure set forth in this Section 4.1 reflects the simplified capitalization of the Corporation as a wholly owned subsidiary of Fund VI following consummation of the Merger. No shares of preferred stock are authorized as of the date hereof; provided, however, that the Board of Directors may authorize the issuance of one or more classes or series of preferred stock by causing the filing of a certificate of amendment to this Certificate of Incorporation in accordance with the DGCL.

Section 4.2 *Rights and Preferences of Common Stock.*

The holders of shares of Common Stock shall be entitled to the following rights and shall be subject to the following restrictions:

(a) Voting Rights. Each holder of Common Stock shall be entitled to one (1) vote for each share of Common Stock held by such holder on all matters submitted to a vote of the stockholders of the Corporation. Except as otherwise required by law, the holders of Common Stock shall vote together as a single class on all matters submitted to a vote of the stockholders.

(b) Dividends. Subject to the rights, if any, of the holders of any outstanding class or series of preferred stock, the holders of shares of Common Stock shall be entitled to receive dividends and other distributions (payable in cash, property, or shares of capital stock of the Corporation) as and when declared thereon by the Board of Directors from time to time out of the assets or funds of the Corporation legally available therefor.

(c) Liquidation Rights. Upon any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of any outstanding class or series of preferred stock, the holders of shares of Common Stock shall be entitled to receive all of the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by each such holder.

(d) No Preemptive Rights. No holder of Common Stock shall have any preemptive right to subscribe for, purchase, or otherwise acquire any shares of capital stock of the Corporation of any class or series, whether now or hereafter authorized, or any securities convertible into or exchangeable for any such shares, except to the extent that such right may be granted by the Board of Directors or by a separate agreement.

ARTICLE V

BOARD OF DIRECTORS

Section 5.1 *Management by Board of Directors.*

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation (the "Board of Directors" or the "Board"). In addition to the powers and authority expressly conferred upon the Board by statute, this Certificate of Incorporation, or the bylaws of the Corporation (as the same may be amended from time to time, the "Bylaws"), the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation, and the Bylaws.

Section 5.2 *Number of Directors.*

The number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by resolution adopted by the Board of Directors or the Sole Stockholder. No reduction of the authorized number of directors shall have the effect of removing any director before such director's term of office expires. The initial number of directors of the Corporation as the surviving corporation in the Merger is as set forth in the Board Written Consent effective as of July 9, 2024, as designated by Fund VI in accordance with the Merger Agreement.

Section 5.3 *Election and Term.*

Directors shall be elected at the annual meeting of stockholders or by written consent of the Sole Stockholder in lieu thereof. Directors need not be elected by written ballot unless required by the Bylaws. Each director so elected shall hold office until such director's successor is duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal. Directors need not be stockholders of the Corporation.

Section 5.4 *Removal.*

Any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the holders of a majority of the shares of capital stock of the Corporation then entitled to vote at an election of directors. As of the date hereof, the Sole Stockholder of the Corporation is Fund VI, and accordingly, Fund VI shall have the sole power to remove any director or the entire Board of Directors, with or without cause, by written consent or at any meeting of stockholders called for such purpose.

Section 5.5 *Vacancies.*

Any vacancy on the Board of Directors, whether arising from death, resignation, disqualification, removal, an increase in the authorized number of directors, or any other cause, may be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, by the sole remaining director, or by the Sole Stockholder. Any director so chosen shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred (if applicable) or until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal.

Section 5.6 *Written Consent of Directors.*

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 or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee. Such written consent or consents shall have the same force and effect as a unanimous vote of the Board of Directors or such committee at a duly convened meeting.

ARTICLE VI

STOCKHOLDER ACTION. Section 6.1 *Annual and Special Meetings.*

Annual meetings of stockholders of the Corporation shall be held at such place, on such date, and at such time as may be fixed from time to time by the Board of Directors, or as may otherwise be designated in the Bylaws. Special meetings of the stockholders of the Corporation may be called at any time by the Board of Directors, the chairperson of the Board (if any), or the Sole Stockholder. The stockholders of the Corporation shall not have the right to call a special meeting of stockholders except as expressly provided in this Section 6.1 with respect to the Sole Stockholder or as otherwise required by the DGCL. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice of such meeting.

Section 6.2 *Action by Written Consent.*

Any action required or permitted to be taken at any annual or special meeting of the stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, is or are signed by the holder or 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 at which all shares entitled to vote thereon were present and voted. Such written consents shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the book or books in which proceedings of meetings of stockholders are recorded. Since, as of the date hereof, the Sole Stockholder of the Corporation is Fund VI, all actions of the stockholders of the Corporation may be taken by the written consent of Fund VI without a meeting, without prior notice, and without a vote.

ARTICLE VII

LIMITATION OF DIRECTOR LIABILITY

Section 7.1 *Elimination of Personal Liability.*

To the fullest extent permitted by the DGCL as it now exists or as it may hereafter be amended (including, without limitation, Section 102(b)(7) thereof), 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; provided, however, that nothing contained herein shall eliminate or limit the liability of a director:

(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 the unlawful payment of dividends, stock purchases, or redemptions); or

(iv) for any transaction from which the director derived an improper personal benefit.

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. Any amendment, repeal, or modification of this Section 7.1 shall not adversely affect any right or protection of a director of the Corporation existing at the time of such amendment, repeal, or modification with respect to acts or omissions occurring prior to such amendment, repeal, or modification.

Section 7.2 *Effect of Amendment.*

No amendment, repeal, or elimination of this Article VII, and no amendment, repeal, or elimination of any provision of the DGCL or any other applicable law, shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment, repeal, or elimination. The provisions of this Article VII shall be deemed to be a contract between the Corporation and each director who serves in such capacity at any time while this Article VII is in effect, and any modification or repeal of this Article VII shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit, or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.

ARTICLE VIII

INDEMNIFICATION. Section 8.1 *Right to Indemnification.*

The Corporation shall indemnify, to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (including, without limitation, Section 145 of the DGCL), any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person 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, partner, trustee, or agent of another corporation, partnership, joint venture, trust, limited liability company, or other enterprise (including, without limitation, service with respect to any employee benefit plan) (each such person, an "Indemnitee"), against all expenses (including attorneys' fees), judgments, fines (including excise taxes assessed with respect to employee benefit plans), and amounts paid in settlement actually and reasonably incurred by such Indemnitee in connection with such Proceeding. The Corporation shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if the initiation of such Proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors.

Section 8.2 *Advancement of Expenses.*

The Corporation shall, to the fullest extent permitted by applicable law, pay the expenses (including attorneys' fees) incurred by an Indemnitee who is or was a director or officer of the Corporation in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of such Proceeding shall be made only upon receipt of an undertaking by or on behalf of such Indemnitee to repay all amounts so 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 under this Article VIII or otherwise. The rights conferred upon Indemnitees in this Section 8.2 shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director or officer and shall inure to the benefit of such Indemnitee's heirs, executors, and administrators.

Section 8.3 *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 as a director, officer, employee, partner, trustee, or agent of another corporation, partnership, joint venture, trust, limited liability company, 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 provisions of this Article VIII or under the DGCL.

Section 8.4 *Non-Exclusivity.*

The rights conferred upon Indemnitees in this Article VIII shall not be exclusive of any other right that any Indemnitee may have or hereafter acquire under any applicable law, provision of this Certificate of Incorporation, the Bylaws, any agreement, vote of stockholders or disinterested directors, or otherwise. Nothing contained in this Article VIII shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons when and as authorized by applicable law, including, without limitation, employees and agents of the Corporation who are not Indemnitees.

Section 8.5 *Survival.*

The rights to indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of the heirs, executors, and administrators of such person. No amendment, alteration, or repeal of this Article VIII, or adoption of any provision of this Certificate of Incorporation inconsistent with this Article VIII, shall eliminate or reduce the right of any person to indemnification or advancement of expenses under this Article VIII with respect to any acts or omissions occurring prior to such amendment, alteration, repeal, or adoption.

ARTICLE IX

AMENDMENT. Section 9.1 *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; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any 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 voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required to amend, alter, change, or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with, Article V, Article VI, Article VII, Article VIII, or this Article IX.

Section 9.2 *Amendment of Bylaws.*

In furtherance and not in limitation of the powers conferred by the DGCL, the Board of Directors is expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the directors then in office. The stockholders of the Corporation shall also have the power to adopt, amend, alter, or repeal the Bylaws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of the capital stock of the Corporation required by law, by this Certificate of Incorporation, or by the Bylaws, the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required to adopt, amend, alter, or repeal any provision of the Bylaws.

ARTICLE X

GENERAL PROVISIONS. Section 10.1 *Effectiveness.*

This Amended and Restated Certificate of Incorporation has been duly executed by an authorized officer of the Corporation and shall be effective upon its filing with the Secretary of State of the State of Delaware on July 9, 2024.

Section 10.2 *Severability.*

If any provision of this Certificate of Incorporation shall be held to be invalid, illegal, or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality, and enforceability of such provision in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal, or unenforceable that is not itself held to be invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby.

Section 10.3 *Governing Law.*

This Certificate of Incorporation and the rights and obligations of the Corporation and its stockholders hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (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.

[Remainder of page intentionally left blank; signature page follows.]

IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation as of the date set forth below.

CLOUDIUM TECHNOLOGIES PLC (as the Surviving Corporation)

By: ________

Name: Helena R. Vasquez

Title: Executive Vice President, General Counsel and Secretary

Date: July 9, 2024

SECRETARY OF STATE — STATE OF DELAWARE

FILING ENDORSEMENT

OFFICE OF THE SECRETARY OF STATE DIVISION OF CORPORATIONS STATE OF DELAWARE

FILED: July 9, 2024

EFFECTIVE: July 9, 2024 at 11:59 PM Eastern Time

DOCUMENT: Amended and Restated Certificate of Incorporation of Cloudium Technologies plc

FILED CONCURRENTLY WITH: Certificate of Merger of Stratos Merger Sub Inc. (Delaware File No. 7923841) with and into Cloudium Technologies plc (effective 11:59 PM ET, July 9, 2024)

STATE OF DELAWARE FILE NUMBER: 7923841

[Secretary of State File Stamp]

________________________________________

Jeffrey W. Bullock Secretary of State

Authentication: 204731892

Date: 07/09/2024

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CLOUDIUM TECHNOLOGIES PLC
(As the Surviving Corporation)
Filed with the Secretary of State of the State of Delaware
July 9, 2024
Pursuant to Sections 242, 245, and 252 of the General Corporation Law of the State of Delaware
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CLOUDIUM TECHNOLOGIES PLC
Cloudium Technologies plc (the "Corporation"), a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
FIRST: The Corporation was originally incorporated under the name "Cloudium Technologies plc" pursuant to the laws of England and Wales, with Company Number 09734521, as registered with Companies House in Cardiff, Wales, United Kingdom.
SECOND: The Corporation is the surviving corporation in a merger (the "Merger") with Stratos Merger Sub Inc., a corporation organized under the laws of the State of Delaware (Delaware File Number 7923841) ("Merger Sub"), pursuant to that certain Agreement and Plan of Merger, dated as of January 22, 2024 (the "Merger Agreement"), by and among the Corporation, Merger Sub, and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI" or the "Sole Stockholder"), pursuant to which Merger Sub was merged with and into the Corporation, with the Corporation continuing as the surviving corporation in the Merger and becoming domesticated in and governed by the laws of the State of Delaware.
THIRD: A Certificate of Merger with respect to the Merger was duly filed with the Secretary of State of the State of Delaware on July 9, 2024, and became effective at 11:59 PM Eastern Time on July 9, 2024.
FOURTH: As a result of the Merger and the filing of the Certificate of Merger, the Corporation is now domesticated in and governed by the laws of the State of Delaware as a Delaware corporation, and all of the provisions of the General Corporation Law of the State of Delaware (as it may be amended from time to time, the "DGCL") are applicable to the Corporation.
FIFTH: This Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation") was duly adopted in accordance with Sections 242, 245, and 252 of the DGCL. This Certificate of Incorporation restates and integrates and further amends the certificate of incorporation of the Corporation, as the surviving corporation in the Merger, as hereinafter set forth in its entirety.
SIXTH: The text of the certificate of incorporation of the Corporation, as the surviving corporation in the Merger, is hereby amended and restated in its entirety to read as follows:
ARTICLE I
NAME.  The name of the corporation is Cloudium Technologies plc (the "Corporation"). The Corporation may conduct business under this name or under any assumed name, trade name, or fictitious business name as the Board of Directors may determine from time to time, subject to compliance with applicable law.
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware 19801. The name of the registered agent of the Corporation at such address is National Registered Agents Inc. The Corporation may, from time to time, change its registered office or registered agent, or both, by filing a statement with the Secretary of State of the State of Delaware as provided by the DGCL.
ARTICLE III
PURPOSE.  The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation shall have all the powers and privileges conferred by the DGCL and any other applicable law, together with any incidental powers necessary or convenient to the conduct, promotion, or attainment of the business or purposes of the Corporation.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
Section 4.1 *Authorized Shares.*
The total number of shares of all classes of capital stock that the Corporation is authorized to issue is one thousand (1,000) shares of common stock, par value $0.01 per share (the "Common Stock").
For the avoidance of doubt, in connection with the Merger, all one hundred eighty-four million two hundred thousand (184,200,000) ordinary shares of the Corporation previously outstanding and listed for trading on the Nasdaq Global Select Market under the ticker symbol "CLDM" were cancelled and converted into the right to receive $36.92 per share in cash, without interest and subject to applicable withholding taxes, as merger consideration pursuant to the Merger Agreement. The authorized capital structure set forth in this Section 4.1 reflects the simplified capitalization of the Corporation as a wholly owned subsidiary of Fund VI following consummation of the Merger. No shares of preferred stock are authorized as of the date hereof; provided, however, that the Board of Directors may authorize the issuance of one or more classes or series of preferred stock by causing the filing of a certificate of amendment to this Certificate of Incorporation in accordance with the DGCL.
Section 4.2 *Rights and Preferences of Common Stock.*
The holders of shares of Common Stock shall be entitled to the following rights and shall be subject to the following restrictions:
(a) Voting Rights. Each holder of Common Stock shall be entitled to one (1) vote for each share of Common Stock held by such holder on all matters submitted to a vote of the stockholders of the Corporation. Except as otherwise required by law, the holders of Common Stock shall vote together as a single class on all matters submitted to a vote of the stockholders.
(b) Dividends. Subject to the rights, if any, of the holders of any outstanding class or series of preferred stock, the holders of shares of Common Stock shall be entitled to receive dividends and other distributions (payable in cash, property, or shares of capital stock of the Corporation) as and when declared thereon by the Board of Directors from time to time out of the assets or funds of the Corporation legally available therefor.
(c) Liquidation Rights. Upon any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of any outstanding class or series of preferred stock, the holders of shares of Common Stock shall be entitled to receive all of the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by each such holder.
(d) No Preemptive Rights. No holder of Common Stock shall have any preemptive right to subscribe for, purchase, or otherwise acquire any shares of capital stock of the Corporation of any class or series, whether now or hereafter authorized, or any securities convertible into or exchangeable for any such shares, except to the extent that such right may be granted by the Board of Directors or by a separate agreement.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 *Management by Board of Directors.*
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors of the Corporation (the "Board of Directors" or the "Board"). In addition to the powers and authority expressly conferred upon the Board by statute, this Certificate of Incorporation, or the bylaws of the Corporation (as the same may be amended from time to time, the "Bylaws"), the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, this Certificate of Incorporation, and the Bylaws.
Section 5.2 *Number of Directors.*
The number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by resolution adopted by the Board of Directors or the Sole Stockholder. No reduction of the authorized number of directors shall have the effect of removing any director before such director's term of office expires. The initial number of directors of the Corporation as the surviving corporation in the Merger is as set forth in the Board Written Consent effective as of July 9, 2024, as designated by Fund VI in accordance with the Merger Agreement.
Section 5.3 *Election and Term.*
Directors shall be elected at the annual meeting of stockholders or by written consent of the Sole Stockholder in lieu thereof. Directors need not be elected by written ballot unless required by the Bylaws. Each director so elected shall hold office until such director's successor is duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal. Directors need not be stockholders of the Corporation.
Section 5.4 *Removal.*
Any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the holders of a majority of the shares of capital stock of the Corporation then entitled to vote at an election of directors. As of the date hereof, the Sole Stockholder of the Corporation is Fund VI, and accordingly, Fund VI shall have the sole power to remove any director or the entire Board of Directors, with or without cause, by written consent or at any meeting of stockholders called for such purpose.
Section 5.5 *Vacancies.*
Any vacancy on the Board of Directors, whether arising from death, resignation, disqualification, removal, an increase in the authorized number of directors, or any other cause, may be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, by the sole remaining director, or by the Sole Stockholder. Any director so chosen shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred (if applicable) or until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal.
Section 5.6 *Written Consent of Directors.*
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 or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee. Such written consent or consents shall have the same force and effect as a unanimous vote of the Board of Directors or such committee at a duly convened meeting.
ARTICLE VI
STOCKHOLDER ACTION.  Section 6.1 *Annual and Special Meetings.*
Annual meetings of stockholders of the Corporation shall be held at such place, on such date, and at such time as may be fixed from time to time by the Board of Directors, or as may otherwise be designated in the Bylaws. Special meetings of the stockholders of the Corporation may be called at any time by the Board of Directors, the chairperson of the Board (if any), or the Sole Stockholder. The stockholders of the Corporation shall not have the right to call a special meeting of stockholders except as expressly provided in this Section 6.1 with respect to the Sole Stockholder or as otherwise required by the DGCL. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice of such meeting.
Section 6.2 *Action by Written Consent.*
Any action required or permitted to be taken at any annual or special meeting of the stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, is or are signed by the holder or 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 at which all shares entitled to vote thereon were present and voted. Such written consents shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the book or books in which proceedings of meetings of stockholders are recorded. Since, as of the date hereof, the Sole Stockholder of the Corporation is Fund VI, all actions of the stockholders of the Corporation may be taken by the written consent of Fund VI without a meeting, without prior notice, and without a vote.
ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY
Section 7.1 *Elimination of Personal Liability.*
To the fullest extent permitted by the DGCL as it now exists or as it may hereafter be amended (including, without limitation, Section 102(b)(7) thereof), 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; provided, however, that nothing contained herein shall eliminate or limit the liability of a director:
(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 the unlawful payment of dividends, stock purchases, or redemptions); or
(iv) for any transaction from which the director derived an improper personal benefit.
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. Any amendment, repeal, or modification of this Section 7.1 shall not adversely affect any right or protection of a director of the Corporation existing at the time of such amendment, repeal, or modification with respect to acts or omissions occurring prior to such amendment, repeal, or modification.
Section 7.2 *Effect of Amendment.*
No amendment, repeal, or elimination of this Article VII, and no amendment, repeal, or elimination of any provision of the DGCL or any other applicable law, shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment, repeal, or elimination. The provisions of this Article VII shall be deemed to be a contract between the Corporation and each director who serves in such capacity at any time while this Article VII is in effect, and any modification or repeal of this Article VII shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit, or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts.
ARTICLE VIII
INDEMNIFICATION.  Section 8.1 *Right to Indemnification.*
The Corporation shall indemnify, to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended (including, without limitation, Section 145 of the DGCL), any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person 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, partner, trustee, or agent of another corporation, partnership, joint venture, trust, limited liability company, or other enterprise (including, without limitation, service with respect to any employee benefit plan) (each such person, an "Indemnitee"), against all expenses (including attorneys' fees), judgments, fines (including excise taxes assessed with respect to employee benefit plans), and amounts paid in settlement actually and reasonably incurred by such Indemnitee in connection with such Proceeding. The Corporation shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if the initiation of such Proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors.
Section 8.2 *Advancement of Expenses.*
The Corporation shall, to the fullest extent permitted by applicable law, pay the expenses (including attorneys' fees) incurred by an Indemnitee who is or was a director or officer of the Corporation in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of such Proceeding shall be made only upon receipt of an undertaking by or on behalf of such Indemnitee to repay all amounts so 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 under this Article VIII or otherwise. The rights conferred upon Indemnitees in this Section 8.2 shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director or officer and shall inure to the benefit of such Indemnitee's heirs, executors, and administrators.
Section 8.3 *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 as a director, officer, employee, partner, trustee, or agent of another corporation, partnership, joint venture, trust, limited liability company, 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 provisions of this Article VIII or under the DGCL.
Section 8.4 *Non-Exclusivity.*
The rights conferred upon Indemnitees in this Article VIII shall not be exclusive of any other right that any Indemnitee may have or hereafter acquire under any applicable law, provision of this Certificate of Incorporation, the Bylaws, any agreement, vote of stockholders or disinterested directors, or otherwise. Nothing contained in this Article VIII shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons when and as authorized by applicable law, including, without limitation, employees and agents of the Corporation who are not Indemnitees.
Section 8.5 *Survival.*
The rights to indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of the heirs, executors, and administrators of such person. No amendment, alteration, or repeal of this Article VIII, or adoption of any provision of this Certificate of Incorporation inconsistent with this Article VIII, shall eliminate or reduce the right of any person to indemnification or advancement of expenses under this Article VIII with respect to any acts or omissions occurring prior to such amendment, alteration, repeal, or adoption.
ARTICLE IX
AMENDMENT.  Section 9.1 *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; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any 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 voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required to amend, alter, change, or repeal, or adopt any provision as part of this Certificate of Incorporation inconsistent with, Article V, Article VI, Article VII, Article VIII, or this Article IX.
Section 9.2 *Amendment of Bylaws.*
In furtherance and not in limitation of the powers conferred by the DGCL, the Board of Directors is expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the directors then in office. The stockholders of the Corporation shall also have the power to adopt, amend, alter, or repeal the Bylaws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of the capital stock of the Corporation required by law, by this Certificate of Incorporation, or by the Bylaws, the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required to adopt, amend, alter, or repeal any provision of the Bylaws.
ARTICLE X
GENERAL PROVISIONS.  Section 10.1 *Effectiveness.*
This Amended and Restated Certificate of Incorporation has been duly executed by an authorized officer of the Corporation and shall be effective upon its filing with the Secretary of State of the State of Delaware on July 9, 2024.
Section 10.2 *Severability.*
If any provision of this Certificate of Incorporation shall be held to be invalid, illegal, or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality, and enforceability of such provision in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal, or unenforceable that is not itself held to be invalid, illegal, or unenforceable) shall not in any way be affected or impaired thereby.
Section 10.3 *Governing Law.*
This Certificate of Incorporation and the rights and obligations of the Corporation and its stockholders hereunder shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (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.
[Remainder of page intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation as of the date set forth below.
CLOUDIUM TECHNOLOGIES PLC (as the Surviving Corporation)
By: ________
Name: Helena R. Vasquez
Title: Executive Vice President, General Counsel and Secretary
Date: July 9, 2024
SECRETARY OF STATE — STATE OF DELAWARE
FILING ENDORSEMENT
OFFICE OF THE SECRETARY OF STATE DIVISION OF CORPORATIONS STATE OF DELAWARE
FILED: July 9, 2024
EFFECTIVE: July 9, 2024 at 11:59 PM Eastern Time
DOCUMENT: Amended and Restated Certificate of Incorporation of Cloudium Technologies plc
FILED CONCURRENTLY WITH: Certificate of Merger of Stratos Merger Sub Inc. (Delaware File No. 7923841) with and into Cloudium Technologies plc (effective 11:59 PM ET, July 9, 2024)
STATE OF DELAWARE FILE NUMBER: 7923841
[Secretary of State File Stamp]
________________________________________
Jeffrey W. Bullock Secretary of State
Authentication: 204731892
Date: 07/09/2024

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

CLOUDIUM TECHNOLOGIES PLC

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

CLOUDIUM TECHNOLOGIES PLC

ARTICLE I

ARTICLE II

REGISTERED OFFICE AND REGISTERED AGENT

ARTICLE III

ARTICLE IV

AUTHORIZED CAPITAL STOCK

ARTICLE V

BOARD OF DIRECTORS

ARTICLE VI

ARTICLE VII

LIMITATION OF DIRECTOR LIABILITY

ARTICLE VIII

ARTICLE IX

ARTICLE X

FILING ENDORSEMENT

OFFICE OF THE SECRETARY OF STATE DIVISION OF CORPORATIONS STATE OF DELAWARE

STATE OF DELAWARE FILE NUMBER: 7923841

Record

Parties

Dates

Amounts