STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 01/08/2024
FILE NO. 7923841
CERTIFICATE OF INCORPORATION
OF
STRATOS MERGER SUB INC.
A Delaware Corporation
Formed Pursuant to the General Corporation Law of the State of Delaware
The undersigned, acting as incorporator for the purpose of forming a corporation under the provisions of the General Corporation Law of the State of Delaware (Title 8 of the Delaware Code, as amended from time to time, the "DGCL"), hereby adopts the following Certificate of Incorporation:
ARTICLE I
NAME. The name of the corporation is Stratos Merger Sub Inc. (hereinafter referred to as the "Corporation").
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, Delaware 19801. The name of the registered agent of the Corporation at such address is National Registered Agents Inc.
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. Without limiting the generality of the foregoing, the Corporation is formed solely for the purpose of effectuating a merger transaction, structured as a reverse triangular merger, with and into Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (registered number 09384271) (the "Target"), pursuant to the terms and conditions of that certain Agreement and Plan of Merger (as may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement") to be entered into by and among the Corporation, the Target, and Solara Digital Infrastructure LP, a Delaware limited partnership and the indirect parent of the Corporation (the "Parent"), and to engage in any and all activities necessary, incidental, advisable, or related to the consummation of such merger transaction and the transactions contemplated thereby, including, without limitation, the execution and delivery of any agreements, instruments, certificates, or other documents in furtherance thereof and the taking of any and all actions as may be required or advisable in connection therewith.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
Section 4.1. Authorized Shares. The total number of shares of capital stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common stock, par value $0.01 per share (the "Common Stock").
Section 4.2. No Preferred Stock. No shares of preferred stock are authorized at the time of the formation of the Corporation. The Corporation shall have the authority to issue all of its authorized shares in a single class of Common Stock. Each share of Common Stock shall be identical in all respects to every other share of Common Stock, and each holder of Common Stock shall be entitled to one (1) vote for each share of Common Stock held of record by such holder on all matters submitted to a vote of stockholders.
Section 4.3. Issuance. Shares of Common Stock may be issued by the Corporation from time to time as approved by its board of directors without further approval of the stockholders of the Corporation, except as may otherwise be required by the DGCL, this Certificate of Incorporation, or the bylaws of the Corporation.
ARTICLE V
INCORPORATOR. The name and mailing address of the incorporator of the Corporation are as follows:
Tiffany Rosenthal Calderwood & Harkness LLP 599 Lexington Avenue New York, New York 10022
The incorporator is acting in her capacity as Lead Associate, Mergers & Acquisitions, at Calderwood & Harkness LLP, on behalf of the firm in its role as legal counsel representing Solara Digital Infrastructure LP, a Delaware limited partnership, in connection with the formation of the Corporation and the transactions contemplated in connection therewith. The powers of the incorporator shall terminate upon the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware and the election or appointment of the initial board of directors of the Corporation.
ARTICLE VI
BOARD OF DIRECTORS
Section 6.1. Management by Board of Directors. The business and affairs of the Corporation shall be managed by or under the direction of a board of directors of the Corporation (the "Board of Directors"). In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend, alter, or repeal the bylaws of the Corporation.
Section 6.2. Initial Board of Directors. The initial Board of Directors shall consist of one (1) director. The name and mailing address of the person appointed to serve as the initial director of the Corporation until the first annual meeting of stockholders of the Corporation, or until his successor is duly elected and qualified, or until his earlier death, resignation, or removal, is as follows:
Marcus Elliston c/o Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, Delaware 19801
Section 6.3. Number of Directors. The number of directors constituting the entire Board of Directors may be fixed, increased, or decreased from time to time exclusively in the manner provided in the bylaws of the Corporation; provided, however, that the number of directors shall not be reduced to fewer than one (1). Unless and until otherwise provided in the bylaws of the Corporation, the number of directors shall be one (1).
Section 6.4. Election. Elections of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.
ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY
Section 7.1. Exculpation. To the fullest extent permitted by the DGCL, as the same exists or may hereafter be amended (including, without limitation, Section 102(b)(7) thereof), no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Without limiting the effect of the preceding sentence, if the DGCL is hereafter amended to authorize the further elimination or limitation of the liability of a director, 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, without the necessity of any further action by the stockholders or directors of the Corporation.
Section 7.2. Non-Retroactive Effect of Amendments. No amendment, repeal, or modification of this Article VII shall 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 any act or omission occurring prior to the time of such amendment, repeal, or modification. Any rights or protections afforded to a director of the Corporation hereunder with respect to any act or omission of such director occurring prior to such amendment, repeal, or modification shall survive such amendment, repeal, or modification and shall continue in full force and effect as though such amendment, repeal, or modification had not occurred.
ARTICLE VIII
INDEMNIFICATION. Section 8.1. Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the DGCL permitted the Corporation to provide prior to such amendment), including, without limitation, Section 145 thereof, 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 is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise (including service with respect to employee benefit plans), against all expenses, liabilities, losses, and claims (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) actually and reasonably incurred or suffered by such person in connection with such Proceeding. Persons who are not directors or officers of the Corporation may be similarly indemnified in respect of service to the Corporation or to another such entity at the request of the Corporation to the extent the Board of Directors at any time designates any of such persons as entitled to the benefits of indemnification under this Article VIII.
Section 8.2. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee, or agent of the Corporation or another corporation, partnership, joint venture, trust, or other enterprise against any expense, liability, or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability, or loss under the DGCL.
Section 8.3. Advancement of Expenses. Expenses (including attorneys' fees) incurred by a director or officer of the Corporation in defending any Proceeding shall be paid by the Corporation in advance of the final disposition of such Proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII or otherwise, in accordance with the provisions of the DGCL and the bylaws of the Corporation. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents of the Corporation may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 8.4. Non-Exclusive Right. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the bylaws of the Corporation, any agreement, vote of stockholders or disinterested directors, or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such person.
ARTICLE IX
SOLE STOCKHOLDER. Section 9.1. Identity of Sole Stockholder. The sole stockholder of the Corporation at the time of incorporation is Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership (EIN: 87-4523190) (the "Sole Stockholder"). The address of the Sole Stockholder is:
Solara Digital Infrastructure Fund VI LP 1200 Market Street, Suite 3400 Wilmington, Delaware 19801
Section 9.2. Issuance to Sole Stockholder. Upon the filing of this Certificate of Incorporation, one thousand (1,000) shares of Common Stock, constituting all of the authorized and outstanding shares of capital stock of the Corporation, shall be issued to the Sole Stockholder in consideration for a capital contribution in the aggregate amount of Ten Dollars ($10.00), representing a price of $0.01 per share, which is equal to the par value thereof. Evidence of such shares shall be reflected on the books and records of the Corporation and, if applicable, represented by one or more stock certificates issued in the name of the Sole Stockholder.
Section 9.3. Action by Written Consent. So long as the Corporation has a sole stockholder, any action required or permitted to be taken at a meeting of stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, by written consent of the Sole Stockholder, in accordance with Section 228 of the DGCL.
ARTICLE X
AMENDMENT. 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 the DGCL, and all rights conferred upon stockholders herein are granted subject to this reservation. Notwithstanding the foregoing, the provisions set forth in Article VII and Article VIII of this Certificate of Incorporation may not be amended, repealed, or modified in a manner that would adversely affect any right or protection thereunder of any director or officer of the Corporation with respect to any act or omission occurring prior to the time of such amendment, repeal, or modification.
ARTICLE XI
EXISTENCE. The Corporation shall have perpetual existence.
EXECUTION
The undersigned, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 8th day of January, 2024.
INCORPORATOR:
By: ________
Name: Tiffany Rosenthal
Title: Lead Associate, Mergers & Acquisitions
Calderwood & Harkness LLP 599 Lexington Avenue New York, New York 10022
Date: January 8, 2024
ENDORSEMENT
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THAT THE ABOVE AND FOREGOING IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF STRATOS MERGER SUB INC., FILED IN THIS OFFICE ON THE EIGHTH DAY OF JANUARY, A.D. 2024, AT 9:00 O'CLOCK A.M.
File No.: 7923841
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Dover, this 8th day of January, 2024.
________________________________________
Jeffrey W. Bullock Secretary of State
AUTHENTICATION: 204710923
DATE: 01-08-2024
This Certificate of Incorporation was prepared by Calderwood & Harkness LLP as counsel to Solara Digital Infrastructure LP in connection with the proposed acquisition of Cloudium Technologies plc. All inquiries should be directed to Calderwood & Harkness LLP, 599 Lexington Avenue, New York, New York 10022, Attention: Tiffany Rosenthal.