1041-00003 · Solara Digital Infrastructure LP · Corporate Governance

board-consent-merger-sub.docx DOCUMENT M&A / Corporate

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UNANIMOUS WRITTEN CONSENT OF THE SOLE DIRECTOR OF STRATOS MERGER SUB INC.

IN LIEU OF A MEETING

January 22, 2024

The undersigned, being the sole director of Stratos Merger Sub Inc., a Delaware corporation (the "Company"), acting pursuant to Section 141(f) of the Delaware General Corporation Law (the "DGCL"), hereby adopts the following resolutions by unanimous written consent in lieu of a meeting, effective as of the date first written above. All actions taken hereby shall have the same force and effect as if taken at a duly convened meeting of the Board of Directors of the Company (the "Board of Directors" or the "Board"), at which a quorum was present and acting throughout.

I. RECITALS AND BACKGROUND

WHEREAS, the Company was incorporated in the State of Delaware on January 8, 2024, and assigned Delaware File No. 7923841, and its registered office is located at 1209 Orange Street, Wilmington, Delaware 19801, with National Registered Agents Inc. serving as its registered agent in the State of Delaware;

WHEREAS, the Company was formed solely and exclusively for the purpose of effectuating a merger with Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) ("Cloudium" or the "Target"), with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom, and its United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, California 94103, whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "CLDM";

WHEREAS, the sole stockholder of the Company is Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI"), acting through its general partner, Solara Fund VI GP LLC, a Delaware limited liability company ("Fund VI GP");

WHEREAS, Fund VI is the investing fund of Solara Digital Infrastructure LP, a Delaware limited partnership ("Solara" or "SDILP"), headquartered at 1200 Market Street, Suite 3400, Wilmington, Delaware 19801, managed by its general partner Solara Digital GP LLC, a Delaware limited liability company;

WHEREAS, the Board of Directors has been presented with and has carefully reviewed the following documents (each a "Transaction Document" and collectively the "Transaction Documents"):

1. Agreement and Plan of Merger (the "Merger Agreement") — to be entered into among Cloudium Technologies plc, Stratos Merger Sub Inc., and Solara Digital Infrastructure Fund VI LP, providing for the merger of the Company with and into Cloudium (the "Merger"), with Cloudium surviving as a wholly owned subsidiary of Fund VI, structured as a reverse triangular merger under the DGCL. The Merger Agreement sets forth the terms, conditions, representations, warranties, covenants, and agreements governing the Merger and the transactions contemplated thereby, including closing conditions, termination provisions, and indemnification obligations of the parties thereto.

2. Equity Commitment Letter (the "ECL") — from Fund VI to the Company, committing equity financing in the aggregate amount of Two Billion Eight Hundred Thirty-Two Million Eight Hundred Eighty-Eight Thousand Ninety-Six Dollars ($2,832,888,096) to fund the transactions contemplated by the Merger Agreement, subject to the terms and conditions set forth therein.

3. Debt Commitment Letter (the "DCL") — from Meridian Atlantic Bank, N.A., in its capacity as Lead Arranger and Administrative Agent, and Ironclad Capital Markets LLC, in its capacity as Co-Arranger (together, the "Commitment Parties"), to Fund VI, committing aggregate debt financing in the amount of Four Billion Two Hundred Forty Million Dollars ($4,240,000,000), comprised of (x) a Three Billion Seven Hundred Forty Million Dollar ($3,740,000,000) senior secured Term Loan B facility and (y) a Five Hundred Million Dollar ($500,000,000) senior secured Revolving Credit Facility, in each case on the terms and subject to the conditions set forth therein, to finance the Merger and the transactions contemplated by the Merger Agreement.

4. Limited Guarantee (the "Guarantee") — from Solara Fund VI GP LLC in favor of Cloudium Technologies plc, guaranteeing payment of the reverse termination fee in the amount of Two Hundred Twenty-One Million Dollars ($221,000,000) plus enforcement costs in an amount not to exceed Twenty-Five Million Dollars ($25,000,000), for a total guarantee amount of Two Hundred Forty-Six Million Dollars ($246,000,000), on the terms and subject to the conditions set forth therein.

5. Escrow Agreement (the "Escrow Agreement") — to be entered into among Fund VI, Cobalt Trust Company, in its capacity as Escrow Agent (the "Escrow Agent"), and the stockholder representative designated in the Merger Agreement (the "Stockholder Representative"), providing for the establishment of an escrow deposit in the aggregate amount of Five Hundred Forty-Four Million Dollars ($544,000,000), representing eight percent (8%) of the aggregate deal value of Six Billion Eight Hundred Million Dollars ($6,800,000,000), to secure certain indemnification obligations under the Merger Agreement.

6. Rollover Agreements — to be entered into between Fund VI and each of the following parties:

(a) Jonathan Hargrove, the Chief Executive Officer of Cloudium, who will roll over fifty percent (50%) of his 7,736,400 shares of Cloudium common stock, representing rollover equity of approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544); and

(b) Pinnacle Growth Ventures LLC, which will roll over sixty percent (60%) of its 21,367,200 shares of Cloudium common stock, representing rollover equity of approximately Four Hundred Seventy-Three Million Two Hundred Forty-One Thousand Four Hundred Eight Dollars ($473,241,408),

for total rollover equity of approximately Six Hundred Sixteen Million Fifty-Five Thousand Nine Hundred Fifty-Two Dollars ($616,055,952) (collectively, the "Rollover Agreements").

7. Voting and Support Agreements — to be executed by (a) Jonathan Hargrove, with respect to his approximately 4.2% stake in Cloudium (representing 7,736,400 shares of Cloudium common stock), and (b) Pinnacle Growth Ventures LLC, with respect to its approximately 11.6% stake in Cloudium (representing 21,367,200 shares of Cloudium common stock), in each case committing the applicable party to vote all of its shares of Cloudium common stock in favor of the Merger and the adoption of the Merger Agreement (collectively, the "Voting and Support Agreements").

8. Certificate of Merger (the "Certificate of Merger") — to be prepared, executed, and filed with the Secretary of State of the State of Delaware at the effective time of the Merger, in form and substance satisfying the requirements of Section 251 of the DGCL and as contemplated by the Merger Agreement.

9. Such other agreements, certificates, instruments, and documents as may be necessary, appropriate, or desirable in connection with the consummation of the transactions contemplated by the Merger Agreement (collectively with the foregoing, the "Transaction Documents").

WHEREAS, the Board of Directors has further reviewed and considered the following summary of the key terms of the transactions contemplated by the Transaction Documents:

• Transaction Value. The aggregate transaction value is Six Billion Eight Hundred Million Dollars ($6,800,000,000), representing approximately Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share of Cloudium common stock (based on 184,200,000 shares outstanding as of the date hereof), payable in cash at the closing of the Merger, subject to rollover elections by Jonathan Hargrove and Pinnacle Growth Ventures LLC pursuant to the Rollover Agreements.

• Merger Structure. The Merger is structured as a reverse triangular merger under the DGCL, pursuant to which the Company will merge with and into Cloudium, with Cloudium surviving the Merger as a wholly owned subsidiary of Fund VI. Following the Merger, the separate corporate existence of the Company shall cease.

• Indemnification Terms. The aggregate indemnification cap is fifteen percent (15%) of deal value, or One Billion Twenty Million Dollars ($1,020,000,000). An escrow deposit in the amount of eight percent (8%) of deal value, or Five Hundred Forty-Four Million Dollars ($544,000,000), will be held by Cobalt Trust Company as Escrow Agent. The tipping basket for indemnification claims is seventy-five hundredths of one percent (0.75%) of deal value, or Fifty-One Million Dollars ($51,000,000), with a de minimis threshold of Five Hundred Thousand Dollars ($500,000) per individual claim. The survival period for representations and warranties is eighteen (18) months, expiring on January 9, 2026, except for fundamental representations and tax representations, which shall survive for the applicable statute of limitations period.

• Termination Fees. The termination fee payable by Cloudium in certain circumstances specified in the Merger Agreement is three and one-quarter percent (3.25%) of deal value, or Two Hundred Twenty-One Million Dollars ($221,000,000). The reverse termination fee payable by Solara in certain circumstances specified in the Merger Agreement is five and one-half percent (5.5%) of deal value, or Three Hundred Seventy-Four Million Dollars ($374,000,000).

• No-Shop Provision. The Merger Agreement contains a no-shop provision effective from and after execution of the Merger Agreement, subject to a customary fiduciary-out exception permitting the board of directors of Cloudium to terminate the Merger Agreement under certain specified circumstances in order to accept a superior proposal, subject to the payment of the termination fee.

• Material Adverse Effect. The definition of "Material Adverse Effect" in the Merger Agreement contains customary carveouts for, among other things, pandemics, epidemics, and public health emergencies, acts of war, sabotage, terrorism, or military action, and changes in applicable law or regulations.

• Change of Control. The Board has noted that the Merger will trigger change of control provisions under certain of Cloudium's material contracts, and the Merger Agreement contemplates appropriate efforts by the parties to obtain all necessary consents and waivers in connection therewith.

• Representations and Warranties Insurance. A buyer-side representations and warranties insurance policy (the "R&W Policy") has been bound with Northfield Assurance Ltd. (Policy No. NFA-TRI-2024-00487), providing a coverage limit of Six Hundred Eighty Million Dollars ($680,000,000) (equal to ten percent (10%) of aggregate deal value), with a retention of Five Hundred Forty-Four Million Dollars ($544,000,000) (equal to the escrow amount), and a total premium of Thirteen Million Six Hundred Thousand Dollars ($13,600,000).

• Financing. The Merger and related transactions will be financed with (i) a senior secured Term Loan B facility in the aggregate principal amount of Three Billion Seven Hundred Forty Million Dollars ($3,740,000,000), bearing interest at SOFR plus 325 basis points, with a seven (7)-year maturity, and (ii) a senior secured Revolving Credit Facility in the aggregate principal amount of Five Hundred Million Dollars ($500,000,000), bearing interest at SOFR plus 275 basis points, with a five (5)-year maturity, in each case arranged by Meridian Atlantic Bank, N.A. (as Lead Arranger and Administrative Agent) and Ironclad Capital Markets LLC (as Co-Arranger), together with (iii) an equity contribution of Two Billion Eight Hundred Thirty-Two Million Eight Hundred Eighty-Eight Thousand Ninety-Six Dollars ($2,832,888,096) from Fund VI pursuant to the Equity Commitment Letter.

• Repayment of Existing Indebtedness. At or prior to the closing of the Merger, Cloudium's existing indebtedness in the aggregate amount of Eight Hundred Twenty Million Dollars ($820,000,000), comprised of (a) a term loan in the principal amount of Six Hundred Twenty Million Dollars ($620,000,000) and (b) a revolving credit facility in the principal amount of Two Hundred Million Dollars ($200,000,000), in each case owed to Atlas Commercial Lending Corp., will be repaid and discharged in full.

• Total Funding Requirement. The total funding requirement for the consummation of the Merger and related transactions, inclusive of merger consideration, repayment of existing indebtedness, transaction fees, and other costs, is Seven Billion One Hundred Eighty-Eight Million Nine Hundred Forty-Four Thousand Forty-Eight Dollars ($7,188,944,048).

WHEREAS, after careful consideration and review of the Transaction Documents, the terms and conditions of the Merger, the financing arrangements, and all other relevant matters, the Board of Directors has determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company and its sole stockholder;

NOW, THEREFORE, BE IT, and it hereby is, resolved as follows:

II. APPROVAL OF THE MERGER AGREEMENT

RESOLVED, that the Merger Agreement, substantially in the form presented to and reviewed by the Board of Directors, together with all exhibits, schedules, annexes, and disclosure schedules attached thereto, and with such changes, modifications, amendments, or supplements as may be approved by the officers of the Company executing the same (such execution to be conclusive evidence of such approval), be, and the same hereby is, approved and adopted in all respects.

RESOLVED FURTHER, that the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, whereby the Company shall merge with and into Cloudium Technologies plc, with Cloudium surviving the Merger as a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, be, and the same hereby is, approved, adopted, declared advisable, and authorized in all respects.

RESOLVED FURTHER, that the Board of Directors hereby recommends that the sole stockholder of the Company, Solara Digital Infrastructure Fund VI LP, approve and adopt the Merger Agreement and the Merger and all of the transactions contemplated thereby, and that a written consent of the sole stockholder be solicited for such purpose.

III. APPROVAL OF THE TRANSACTION DOCUMENTS

RESOLVED, that each of the Transaction Documents described in the recitals hereto, including without limitation the Equity Commitment Letter, the Debt Commitment Letter, the Limited Guarantee, the Escrow Agreement, the Rollover Agreements, the Voting and Support Agreements, the Certificate of Merger, and all other ancillary agreements, certificates, instruments, and documents entered into or to be entered into in connection with the Merger and the transactions contemplated by the Merger Agreement, in each case substantially in the forms presented to and reviewed by the Board of Directors or in such forms as shall be approved by the officers of the Company executing the same, be, and each of the same hereby is, approved and authorized in all respects.

IV. AUTHORIZATION TO EXECUTE AND DELIVER

RESOLVED, that any officer of the Company, and each of them acting individually (each, an "Authorized Officer"), be, and each of them hereby is, authorized and directed, in the name and on behalf of the Company, to execute and deliver the Merger Agreement, the Certificate of Merger, and each of the other Transaction Documents to which the Company is or is to become a party, together with all such other agreements, certificates, instruments, notices, consents, and documents as such Authorized Officer may deem necessary, appropriate, or desirable to carry out the purposes and intent of the foregoing resolutions, and that the execution and delivery of any such document by any such Authorized Officer shall be conclusive evidence of such Authorized Officer's approval thereof and of the Company's authorization and approval of the same.

V. AUTHORIZATION TO FILE THE CERTIFICATE OF MERGER

RESOLVED, that any Authorized Officer of the Company be, and each of them hereby is, authorized and directed to cause the Certificate of Merger to be prepared, executed, and filed with the Secretary of State of the State of Delaware at the effective time of the Merger and in the manner contemplated by the Merger Agreement and applicable provisions of the DGCL, including Section 251 thereof, with such effective time to be as set forth in the Merger Agreement, and to take all such actions as may be necessary or advisable to effect such filing, including the payment of any filing fees or taxes associated therewith.

VI. AUTHORIZATION OF PERFORMANCE OF OBLIGATIONS

RESOLVED, that any Authorized Officer of the Company, and each of them acting individually, be, and each of them hereby is, authorized, empowered, and directed, in the name and on behalf of the Company, to take or cause to be taken all such further actions, to execute and deliver or cause to be executed and delivered all such further instruments, agreements, certificates, and documents, and to pay or cause to be paid all such fees, costs, and expenses (including filing fees, legal fees, accounting fees, financial advisory fees, insurance premiums, and other transaction expenses), as such Authorized Officer may determine in his or her sole discretion to be necessary, appropriate, or advisable in order to fully carry out the intent and accomplish the purposes of the foregoing resolutions and the transactions contemplated thereby, and that all such actions heretofore taken by any officer of the Company in connection therewith be, and the same hereby are, ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company.

VII. ENGAGEMENT OF ADVISORS

RESOLVED, that the engagement of Calderwood & Harkness LLP as legal counsel to Solara and the Company in connection with the Merger and the transactions contemplated by the Merger Agreement (Matter No. 1041-00003), with Harrison Wexford serving as Responsible Partner, be, and the same hereby is, confirmed, ratified, and approved in all respects, and that the Authorized Officers be, and each of them hereby is, authorized to execute and deliver such engagement letters, fee arrangements, and related documents as may be necessary or appropriate in connection therewith.

RESOLVED FURTHER, that the engagement of Osprey Bancroft & Co. as financial advisor to Solara in connection with the Merger and the transactions contemplated by the Merger Agreement, including the rendering of a fairness opinion and such other financial advisory services as may be requested, be, and the same hereby is, confirmed, ratified, and approved in all respects.

RESOLVED FURTHER, that the engagement of Glenmore Thornton LLP as accounting and tax advisor to Solara and the Company in connection with the Merger and the transactions contemplated by the Merger Agreement, including the provision of tax structuring advice, due diligence support, and such other accounting and tax services as may be requested, be, and the same hereby is, confirmed, ratified, and approved in all respects.

RESOLVED FURTHER, that the engagement of Albright & Kerr LLP as UK regulatory counsel to Solara in connection with matters before the UK Competition and Markets Authority and other UK regulatory bodies arising in connection with the Merger, be, and the same hereby is, confirmed, ratified, and approved in all respects.

VIII. REGULATORY FILINGS

RESOLVED, that the Authorized Officers of the Company and the authorized representatives of Solara be, and each of them hereby is, authorized and directed to prepare, execute, and file, or cause to be prepared, executed, and filed, all notifications, filings, applications, and submissions required or advisable in connection with the Merger and the transactions contemplated by the Merger Agreement, including without limitation:

(a) the Pre-Merger Notification and Report Form required to be filed pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the rules and regulations promulgated thereunder, with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice, together with all documentary attachments, supplemental information, and responses to any requests for additional information or documentary material ("Second Requests") as may be issued by such agencies;

(b) the Merger Notice Form required to be filed with the UK Competition and Markets Authority (the "CMA") pursuant to the Enterprise Act 2002, as amended, together with all supporting documentation, responses to information requests, and such other materials as may be required or requested by the CMA in connection with its review of the Merger;

(c) any other antitrust, competition, foreign direct investment, national security, or regulatory filings, notifications, or submissions in any jurisdiction worldwide, including without limitation filings with the European Commission, the Australian Competition and Consumer Commission, and any other governmental authority, as may be required or advisable in connection with the Merger;

and to take all such actions as may be necessary, appropriate, or desirable to obtain all required regulatory approvals, clearances, consents, and waivers in connection with the Merger and the transactions contemplated by the Transaction Documents, including the negotiation and acceptance of any consent orders, consent decrees, hold-separate orders, timing agreements, or other regulatory commitments.

IX. GENERAL AUTHORITY

RESOLVED, that any Authorized Officer of the Company be, and each of them hereby is, authorized and empowered to take any and all such further actions, and to execute and deliver any and all such further documents, instruments, certificates, and agreements, in the name and on behalf of the Company, as such Authorized Officer may deem necessary, appropriate, or desirable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, with such Authorized Officer's execution and delivery of any such document being conclusive evidence of his or her determination that the same is necessary, appropriate, or desirable.

RESOLVED FURTHER, that any and all actions heretofore taken by any officer, director, or authorized representative of the Company in connection with the matters referenced in the foregoing resolutions, including actions taken prior to the date of this consent in anticipation of the Merger and the transactions contemplated by the Transaction Documents, be, and the same hereby are, ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company.

X. EFFECTIVENESS; COUNTERPARTS; GOVERNING LAW

This consent may be executed in one or more counterparts, including by facsimile or portable document format (PDF) transmission, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Signatures delivered by facsimile or PDF transmission shall be deemed to be original signatures for all purposes.

This consent shall be effective as of January 22, 2024, and shall be filed with the minutes of the proceedings of the Board of Directors of the Company and maintained in the corporate records of the Company at its registered office.

This consent and all matters arising out of or relating to this consent shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule that would cause the application of the laws of any other jurisdiction.

The remainder of this page is intentionally left blank. Signature page follows.

SIGNATURE PAGE TO UNANIMOUS WRITTEN CONSENT OF THE SOLE DIRECTOR OF STRATOS MERGER SUB INC.

IN WITNESS WHEREOF, the undersigned, being the sole director of Stratos Merger Sub Inc., has executed this Unanimous Written Consent as of the date first written above.

STRATOS MERGER SUB INC.

________________________________________

Name: Marcus Elliston

Title: Sole Director

(Designee of Solara Fund VI GP LLC)

Date: January 22, 2024

ACKNOWLEDGMENT AND FILING NOTATION

This Unanimous Written Consent of the Sole Director of Stratos Merger Sub Inc., dated January 22, 2024, is being filed with the corporate records of Stratos Merger Sub Inc. at its registered office located at 1209 Orange Street, Wilmington, Delaware 19801, c/o National Registered Agents Inc., registered agent, in accordance with Section 141(f) of the Delaware General Corporation Law.

Reference is hereby made to the companion document entitled "Unanimous Written Consent of the Sole Stockholder of Stratos Merger Sub Inc." executed by Solara Digital Infrastructure Fund VI LP, acting through its general partner, Solara Fund VI GP LLC, of even date herewith, which is being filed contemporaneously with the corporate records of the Company.

UNANIMOUS WRITTEN CONSENT OF THE SOLE DIRECTOR OF STRATOS MERGER SUB INC.
IN LIEU OF A MEETING
January 22, 2024
The undersigned, being the sole director of Stratos Merger Sub Inc., a Delaware corporation (the "Company"), acting pursuant to Section 141(f) of the Delaware General Corporation Law (the "DGCL"), hereby adopts the following resolutions by unanimous written consent in lieu of a meeting, effective as of the date first written above. All actions taken hereby shall have the same force and effect as if taken at a duly convened meeting of the Board of Directors of the Company (the "Board of Directors" or the "Board"), at which a quorum was present and acting throughout.
I. RECITALS AND BACKGROUND
WHEREAS, the Company was incorporated in the State of Delaware on January 8, 2024, and assigned Delaware File No. 7923841, and its registered office is located at 1209 Orange Street, Wilmington, Delaware 19801, with National Registered Agents Inc. serving as its registered agent in the State of Delaware;
WHEREAS, the Company was formed solely and exclusively for the purpose of effectuating a merger with Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) ("Cloudium" or the "Target"), with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom, and its United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, California 94103, whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "CLDM";
WHEREAS, the sole stockholder of the Company is Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI"), acting through its general partner, Solara Fund VI GP LLC, a Delaware limited liability company ("Fund VI GP");
WHEREAS, Fund VI is the investing fund of Solara Digital Infrastructure LP, a Delaware limited partnership ("Solara" or "SDILP"), headquartered at 1200 Market Street, Suite 3400, Wilmington, Delaware 19801, managed by its general partner Solara Digital GP LLC, a Delaware limited liability company;
WHEREAS, the Board of Directors has been presented with and has carefully reviewed the following documents (each a "Transaction Document" and collectively the "Transaction Documents"):
1.  Agreement and Plan of Merger (the "Merger Agreement") — to be entered into among Cloudium Technologies plc, Stratos Merger Sub Inc., and Solara Digital Infrastructure Fund VI LP, providing for the merger of the Company with and into Cloudium (the "Merger"), with Cloudium surviving as a wholly owned subsidiary of Fund VI, structured as a reverse triangular merger under the DGCL. The Merger Agreement sets forth the terms, conditions, representations, warranties, covenants, and agreements governing the Merger and the transactions contemplated thereby, including closing conditions, termination provisions, and indemnification obligations of the parties thereto.
2.  Equity Commitment Letter (the "ECL") — from Fund VI to the Company, committing equity financing in the aggregate amount of Two Billion Eight Hundred Thirty-Two Million Eight Hundred Eighty-Eight Thousand Ninety-Six Dollars ($2,832,888,096) to fund the transactions contemplated by the Merger Agreement, subject to the terms and conditions set forth therein.
3.  Debt Commitment Letter (the "DCL") — from Meridian Atlantic Bank, N.A., in its capacity as Lead Arranger and Administrative Agent, and Ironclad Capital Markets LLC, in its capacity as Co-Arranger (together, the "Commitment Parties"), to Fund VI, committing aggregate debt financing in the amount of Four Billion Two Hundred Forty Million Dollars ($4,240,000,000), comprised of (x) a Three Billion Seven Hundred Forty Million Dollar ($3,740,000,000) senior secured Term Loan B facility and (y) a Five Hundred Million Dollar ($500,000,000) senior secured Revolving Credit Facility, in each case on the terms and subject to the conditions set forth therein, to finance the Merger and the transactions contemplated by the Merger Agreement.
4.  Limited Guarantee (the "Guarantee") — from Solara Fund VI GP LLC in favor of Cloudium Technologies plc, guaranteeing payment of the reverse termination fee in the amount of Two Hundred Twenty-One Million Dollars ($221,000,000) plus enforcement costs in an amount not to exceed Twenty-Five Million Dollars ($25,000,000), for a total guarantee amount of Two Hundred Forty-Six Million Dollars ($246,000,000), on the terms and subject to the conditions set forth therein.
5.  Escrow Agreement (the "Escrow Agreement") — to be entered into among Fund VI, Cobalt Trust Company, in its capacity as Escrow Agent (the "Escrow Agent"), and the stockholder representative designated in the Merger Agreement (the "Stockholder Representative"), providing for the establishment of an escrow deposit in the aggregate amount of Five Hundred Forty-Four Million Dollars ($544,000,000), representing eight percent (8%) of the aggregate deal value of Six Billion Eight Hundred Million Dollars ($6,800,000,000), to secure certain indemnification obligations under the Merger Agreement.
6.  Rollover Agreements — to be entered into between Fund VI and each of the following parties:
(a) Jonathan Hargrove, the Chief Executive Officer of Cloudium, who will roll over fifty percent (50%) of his 7,736,400 shares of Cloudium common stock, representing rollover equity of approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544); and
(b) Pinnacle Growth Ventures LLC, which will roll over sixty percent (60%) of its 21,367,200 shares of Cloudium common stock, representing rollover equity of approximately Four Hundred Seventy-Three Million Two Hundred Forty-One Thousand Four Hundred Eight Dollars ($473,241,408),
for total rollover equity of approximately Six Hundred Sixteen Million Fifty-Five Thousand Nine Hundred Fifty-Two Dollars ($616,055,952) (collectively, the "Rollover Agreements").
7.  Voting and Support Agreements — to be executed by (a) Jonathan Hargrove, with respect to his approximately 4.2% stake in Cloudium (representing 7,736,400 shares of Cloudium common stock), and (b) Pinnacle Growth Ventures LLC, with respect to its approximately 11.6% stake in Cloudium (representing 21,367,200 shares of Cloudium common stock), in each case committing the applicable party to vote all of its shares of Cloudium common stock in favor of the Merger and the adoption of the Merger Agreement (collectively, the "Voting and Support Agreements").
8.  Certificate of Merger (the "Certificate of Merger") — to be prepared, executed, and filed with the Secretary of State of the State of Delaware at the effective time of the Merger, in form and substance satisfying the requirements of Section 251 of the DGCL and as contemplated by the Merger Agreement.
9.  Such other agreements, certificates, instruments, and documents as may be necessary, appropriate, or desirable in connection with the consummation of the transactions contemplated by the Merger Agreement (collectively with the foregoing, the "Transaction Documents").
WHEREAS, the Board of Directors has further reviewed and considered the following summary of the key terms of the transactions contemplated by the Transaction Documents:
•  Transaction Value. The aggregate transaction value is Six Billion Eight Hundred Million Dollars ($6,800,000,000), representing approximately Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share of Cloudium common stock (based on 184,200,000 shares outstanding as of the date hereof), payable in cash at the closing of the Merger, subject to rollover elections by Jonathan Hargrove and Pinnacle Growth Ventures LLC pursuant to the Rollover Agreements.
•  Merger Structure. The Merger is structured as a reverse triangular merger under the DGCL, pursuant to which the Company will merge with and into Cloudium, with Cloudium surviving the Merger as a wholly owned subsidiary of Fund VI. Following the Merger, the separate corporate existence of the Company shall cease.
•  Indemnification Terms. The aggregate indemnification cap is fifteen percent (15%) of deal value, or One Billion Twenty Million Dollars ($1,020,000,000). An escrow deposit in the amount of eight percent (8%) of deal value, or Five Hundred Forty-Four Million Dollars ($544,000,000), will be held by Cobalt Trust Company as Escrow Agent. The tipping basket for indemnification claims is seventy-five hundredths of one percent (0.75%) of deal value, or Fifty-One Million Dollars ($51,000,000), with a de minimis threshold of Five Hundred Thousand Dollars ($500,000) per individual claim. The survival period for representations and warranties is eighteen (18) months, expiring on January 9, 2026, except for fundamental representations and tax representations, which shall survive for the applicable statute of limitations period.
•  Termination Fees. The termination fee payable by Cloudium in certain circumstances specified in the Merger Agreement is three and one-quarter percent (3.25%) of deal value, or Two Hundred Twenty-One Million Dollars ($221,000,000). The reverse termination fee payable by Solara in certain circumstances specified in the Merger Agreement is five and one-half percent (5.5%) of deal value, or Three Hundred Seventy-Four Million Dollars ($374,000,000).
•  No-Shop Provision. The Merger Agreement contains a no-shop provision effective from and after execution of the Merger Agreement, subject to a customary fiduciary-out exception permitting the board of directors of Cloudium to terminate the Merger Agreement under certain specified circumstances in order to accept a superior proposal, subject to the payment of the termination fee.
•  Material Adverse Effect. The definition of "Material Adverse Effect" in the Merger Agreement contains customary carveouts for, among other things, pandemics, epidemics, and public health emergencies, acts of war, sabotage, terrorism, or military action, and changes in applicable law or regulations.
•  Change of Control. The Board has noted that the Merger will trigger change of control provisions under certain of Cloudium's material contracts, and the Merger Agreement contemplates appropriate efforts by the parties to obtain all necessary consents and waivers in connection therewith.
•  Representations and Warranties Insurance. A buyer-side representations and warranties insurance policy (the "R&W Policy") has been bound with Northfield Assurance Ltd. (Policy No. NFA-TRI-2024-00487), providing a coverage limit of Six Hundred Eighty Million Dollars ($680,000,000) (equal to ten percent (10%) of aggregate deal value), with a retention of Five Hundred Forty-Four Million Dollars ($544,000,000) (equal to the escrow amount), and a total premium of Thirteen Million Six Hundred Thousand Dollars ($13,600,000).
•  Financing. The Merger and related transactions will be financed with (i) a senior secured Term Loan B facility in the aggregate principal amount of Three Billion Seven Hundred Forty Million Dollars ($3,740,000,000), bearing interest at SOFR plus 325 basis points, with a seven (7)-year maturity, and (ii) a senior secured Revolving Credit Facility in the aggregate principal amount of Five Hundred Million Dollars ($500,000,000), bearing interest at SOFR plus 275 basis points, with a five (5)-year maturity, in each case arranged by Meridian Atlantic Bank, N.A. (as Lead Arranger and Administrative Agent) and Ironclad Capital Markets LLC (as Co-Arranger), together with (iii) an equity contribution of Two Billion Eight Hundred Thirty-Two Million Eight Hundred Eighty-Eight Thousand Ninety-Six Dollars ($2,832,888,096) from Fund VI pursuant to the Equity Commitment Letter.
•  Repayment of Existing Indebtedness. At or prior to the closing of the Merger, Cloudium's existing indebtedness in the aggregate amount of Eight Hundred Twenty Million Dollars ($820,000,000), comprised of (a) a term loan in the principal amount of Six Hundred Twenty Million Dollars ($620,000,000) and (b) a revolving credit facility in the principal amount of Two Hundred Million Dollars ($200,000,000), in each case owed to Atlas Commercial Lending Corp., will be repaid and discharged in full.
•  Total Funding Requirement. The total funding requirement for the consummation of the Merger and related transactions, inclusive of merger consideration, repayment of existing indebtedness, transaction fees, and other costs, is Seven Billion One Hundred Eighty-Eight Million Nine Hundred Forty-Four Thousand Forty-Eight Dollars ($7,188,944,048).
WHEREAS, after careful consideration and review of the Transaction Documents, the terms and conditions of the Merger, the financing arrangements, and all other relevant matters, the Board of Directors has determined that the Merger Agreement and the transactions contemplated thereby, including the Merger, are fair to, and in the best interests of, the Company and its sole stockholder;
NOW, THEREFORE, BE IT, and it hereby is, resolved as follows:
II. APPROVAL OF THE MERGER AGREEMENT
RESOLVED, that the Merger Agreement, substantially in the form presented to and reviewed by the Board of Directors, together with all exhibits, schedules, annexes, and disclosure schedules attached thereto, and with such changes, modifications, amendments, or supplements as may be approved by the officers of the Company executing the same (such execution to be conclusive evidence of such approval), be, and the same hereby is, approved and adopted in all respects.
RESOLVED FURTHER, that the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, whereby the Company shall merge with and into Cloudium Technologies plc, with Cloudium surviving the Merger as a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, be, and the same hereby is, approved, adopted, declared advisable, and authorized in all respects.
RESOLVED FURTHER, that the Board of Directors hereby recommends that the sole stockholder of the Company, Solara Digital Infrastructure Fund VI LP, approve and adopt the Merger Agreement and the Merger and all of the transactions contemplated thereby, and that a written consent of the sole stockholder be solicited for such purpose.
III. APPROVAL OF THE TRANSACTION DOCUMENTS
RESOLVED, that each of the Transaction Documents described in the recitals hereto, including without limitation the Equity Commitment Letter, the Debt Commitment Letter, the Limited Guarantee, the Escrow Agreement, the Rollover Agreements, the Voting and Support Agreements, the Certificate of Merger, and all other ancillary agreements, certificates, instruments, and documents entered into or to be entered into in connection with the Merger and the transactions contemplated by the Merger Agreement, in each case substantially in the forms presented to and reviewed by the Board of Directors or in such forms as shall be approved by the officers of the Company executing the same, be, and each of the same hereby is, approved and authorized in all respects.
IV. AUTHORIZATION TO EXECUTE AND DELIVER
RESOLVED, that any officer of the Company, and each of them acting individually (each, an "Authorized Officer"), be, and each of them hereby is, authorized and directed, in the name and on behalf of the Company, to execute and deliver the Merger Agreement, the Certificate of Merger, and each of the other Transaction Documents to which the Company is or is to become a party, together with all such other agreements, certificates, instruments, notices, consents, and documents as such Authorized Officer may deem necessary, appropriate, or desirable to carry out the purposes and intent of the foregoing resolutions, and that the execution and delivery of any such document by any such Authorized Officer shall be conclusive evidence of such Authorized Officer's approval thereof and of the Company's authorization and approval of the same.
V. AUTHORIZATION TO FILE THE CERTIFICATE OF MERGER
RESOLVED, that any Authorized Officer of the Company be, and each of them hereby is, authorized and directed to cause the Certificate of Merger to be prepared, executed, and filed with the Secretary of State of the State of Delaware at the effective time of the Merger and in the manner contemplated by the Merger Agreement and applicable provisions of the DGCL, including Section 251 thereof, with such effective time to be as set forth in the Merger Agreement, and to take all such actions as may be necessary or advisable to effect such filing, including the payment of any filing fees or taxes associated therewith.
VI. AUTHORIZATION OF PERFORMANCE OF OBLIGATIONS
RESOLVED, that any Authorized Officer of the Company, and each of them acting individually, be, and each of them hereby is, authorized, empowered, and directed, in the name and on behalf of the Company, to take or cause to be taken all such further actions, to execute and deliver or cause to be executed and delivered all such further instruments, agreements, certificates, and documents, and to pay or cause to be paid all such fees, costs, and expenses (including filing fees, legal fees, accounting fees, financial advisory fees, insurance premiums, and other transaction expenses), as such Authorized Officer may determine in his or her sole discretion to be necessary, appropriate, or advisable in order to fully carry out the intent and accomplish the purposes of the foregoing resolutions and the transactions contemplated thereby, and that all such actions heretofore taken by any officer of the Company in connection therewith be, and the same hereby are, ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company.
VII. ENGAGEMENT OF ADVISORS
RESOLVED, that the engagement of Calderwood & Harkness LLP as legal counsel to Solara and the Company in connection with the Merger and the transactions contemplated by the Merger Agreement (Matter No. 1041-00003), with Harrison Wexford serving as Responsible Partner, be, and the same hereby is, confirmed, ratified, and approved in all respects, and that the Authorized Officers be, and each of them hereby is, authorized to execute and deliver such engagement letters, fee arrangements, and related documents as may be necessary or appropriate in connection therewith.
RESOLVED FURTHER, that the engagement of Osprey Bancroft & Co. as financial advisor to Solara in connection with the Merger and the transactions contemplated by the Merger Agreement, including the rendering of a fairness opinion and such other financial advisory services as may be requested, be, and the same hereby is, confirmed, ratified, and approved in all respects.
RESOLVED FURTHER, that the engagement of Glenmore Thornton LLP as accounting and tax advisor to Solara and the Company in connection with the Merger and the transactions contemplated by the Merger Agreement, including the provision of tax structuring advice, due diligence support, and such other accounting and tax services as may be requested, be, and the same hereby is, confirmed, ratified, and approved in all respects.
RESOLVED FURTHER, that the engagement of Albright & Kerr LLP as UK regulatory counsel to Solara in connection with matters before the UK Competition and Markets Authority and other UK regulatory bodies arising in connection with the Merger, be, and the same hereby is, confirmed, ratified, and approved in all respects.
VIII. REGULATORY FILINGS
RESOLVED, that the Authorized Officers of the Company and the authorized representatives of Solara be, and each of them hereby is, authorized and directed to prepare, execute, and file, or cause to be prepared, executed, and filed, all notifications, filings, applications, and submissions required or advisable in connection with the Merger and the transactions contemplated by the Merger Agreement, including without limitation:
(a) the Pre-Merger Notification and Report Form required to be filed pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the rules and regulations promulgated thereunder, with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice, together with all documentary attachments, supplemental information, and responses to any requests for additional information or documentary material ("Second Requests") as may be issued by such agencies;
(b) the Merger Notice Form required to be filed with the UK Competition and Markets Authority (the "CMA") pursuant to the Enterprise Act 2002, as amended, together with all supporting documentation, responses to information requests, and such other materials as may be required or requested by the CMA in connection with its review of the Merger;
(c) any other antitrust, competition, foreign direct investment, national security, or regulatory filings, notifications, or submissions in any jurisdiction worldwide, including without limitation filings with the European Commission, the Australian Competition and Consumer Commission, and any other governmental authority, as may be required or advisable in connection with the Merger;
and to take all such actions as may be necessary, appropriate, or desirable to obtain all required regulatory approvals, clearances, consents, and waivers in connection with the Merger and the transactions contemplated by the Transaction Documents, including the negotiation and acceptance of any consent orders, consent decrees, hold-separate orders, timing agreements, or other regulatory commitments.
IX. GENERAL AUTHORITY
RESOLVED, that any Authorized Officer of the Company be, and each of them hereby is, authorized and empowered to take any and all such further actions, and to execute and deliver any and all such further documents, instruments, certificates, and agreements, in the name and on behalf of the Company, as such Authorized Officer may deem necessary, appropriate, or desirable to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated thereby, with such Authorized Officer's execution and delivery of any such document being conclusive evidence of his or her determination that the same is necessary, appropriate, or desirable.
RESOLVED FURTHER, that any and all actions heretofore taken by any officer, director, or authorized representative of the Company in connection with the matters referenced in the foregoing resolutions, including actions taken prior to the date of this consent in anticipation of the Merger and the transactions contemplated by the Transaction Documents, be, and the same hereby are, ratified, confirmed, approved, and adopted in all respects as the acts and deeds of the Company.
X. EFFECTIVENESS; COUNTERPARTS; GOVERNING LAW
This consent may be executed in one or more counterparts, including by facsimile or portable document format (PDF) transmission, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Signatures delivered by facsimile or PDF transmission shall be deemed to be original signatures for all purposes.
This consent shall be effective as of January 22, 2024, and shall be filed with the minutes of the proceedings of the Board of Directors of the Company and maintained in the corporate records of the Company at its registered office.
This consent and all matters arising out of or relating to this consent shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule that would cause the application of the laws of any other jurisdiction.
The remainder of this page is intentionally left blank. Signature page follows.
SIGNATURE PAGE TO UNANIMOUS WRITTEN CONSENT OF THE SOLE DIRECTOR OF STRATOS MERGER SUB INC.
IN WITNESS WHEREOF, the undersigned, being the sole director of Stratos Merger Sub Inc., has executed this Unanimous Written Consent as of the date first written above.
STRATOS MERGER SUB INC.
________________________________________
Name: Marcus Elliston
Title: Sole Director
(Designee of Solara Fund VI GP LLC)
Date: January 22, 2024
ACKNOWLEDGMENT AND FILING NOTATION
This Unanimous Written Consent of the Sole Director of Stratos Merger Sub Inc., dated January 22, 2024, is being filed with the corporate records of Stratos Merger Sub Inc. at its registered office located at 1209 Orange Street, Wilmington, Delaware 19801, c/o National Registered Agents Inc., registered agent, in accordance with Section 141(f) of the Delaware General Corporation Law.
Reference is hereby made to the companion document entitled "Unanimous Written Consent of the Sole Stockholder of Stratos Merger Sub Inc." executed by Solara Digital Infrastructure Fund VI LP, acting through its general partner, Solara Fund VI GP LLC, of even date herewith, which is being filed contemporaneously with the corporate records of the Company.