EXHIBIT A
FORM OF CERTIFICATE OF MERGER
Exhibit A to that certain Agreement and Plan of Merger, dated as of January 22, 2024 (the "Merger Agreement"), among Cloudium Technologies plc, Stratos Merger Sub Inc., and Solara Digital Infrastructure Fund VI LP.
CERTIFICATE OF MERGER
OF
STRATOS MERGER SUB INC.
(a Delaware corporation)
WITH AND INTO
CLOUDIUM TECHNOLOGIES PLC
(a public limited company incorporated under the laws of England and Wales)
Pursuant to Section 251 of the Delaware General Corporation Law
The undersigned corporation, in order to effect the merger described herein, hereby certifies as follows in accordance with Section 251 of the Delaware General Corporation Law (the "DGCL"):
SECTION 1. NAME AND DETAILS OF THE SURVIVING CORPORATION
The name of the surviving corporation in the merger contemplated hereby is Cloudium Technologies plc (the "Surviving Corporation"). Cloudium Technologies plc is a public limited company incorporated and existing under the laws of England and Wales, with its registered office located at 45 Broadwick Street, London W1F 0DB, United Kingdom, and with its principal United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, California 94103. Cloudium Technologies plc is registered with the Registrar of Companies for England and Wales under Company Number 09734521 and holds United States Employer Identification Number 83-2196754 for purposes of federal tax identification.
Cloudium Technologies plc is a corporation within the meaning of Section 251 of the DGCL for purposes of this Certificate of Merger and the transactions contemplated hereby, and is a constituent corporation party to the merger described herein. Following the effectiveness of the merger, Cloudium Technologies plc shall continue its existence as a corporation under the laws of England and Wales, subject to such amendments to its organizational documents as are described in Section 8 below.
SECTION 2. NAME AND DETAILS OF THE CORPORATION BEING MERGED INTO THE SURVIVING CORPORATION
The name of the corporation being merged with and into the Surviving Corporation is Stratos Merger Sub Inc. (the "Merger Sub"). Stratos Merger Sub Inc. is a corporation organized and existing under the laws of the State of Delaware, having been incorporated on January 8, 2024. Stratos Merger Sub Inc. is on file with the Secretary of State of the State of Delaware under Delaware File Number 7923841. The registered office of Stratos Merger Sub Inc. in the State of Delaware is located at 1209 Orange Street, Wilmington, Delaware 19801, and its registered agent at such address is National Registered Agents Inc.
Stratos Merger Sub Inc. is a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership, and was formed solely for the purpose of effectuating the transactions contemplated by the Merger Agreement (as defined below). Stratos Merger Sub Inc. has not conducted any business activities since its incorporation other than those incident to its formation and the transactions contemplated by the Merger Agreement.
SECTION 3. APPROVAL AND AUTHORIZATION OF THE MERGER AGREEMENT
An Agreement and Plan of Merger, dated as of January 22, 2024 (the "Merger Agreement"), was entered into among Cloudium Technologies plc, Stratos Merger Sub Inc., and Solara Digital Infrastructure Fund VI LP (together, the "Parties"). The Merger Agreement sets forth the terms and conditions of the merger of Stratos Merger Sub Inc. with and into Cloudium Technologies plc. The Merger Agreement has been approved, adopted, certified, executed, and acknowledged by each of the constituent entities in accordance with the provisions of Section 251 of the DGCL, as follows:
(a) Approval by Stratos Merger Sub Inc. The Merger Agreement was duly approved and adopted by the board of directors of Stratos Merger Sub Inc. by unanimous written consent, effective as of January 22, 2024. Thereafter, the Merger Agreement was approved and adopted by Solara Digital Infrastructure Fund VI LP, as the sole stockholder of Stratos Merger Sub Inc., by written consent in lieu of a meeting of stockholders, dated January 22, 2024, in accordance with Section 228 of the DGCL. Stratos Merger Sub Inc. had a single class of common stock, par value $0.001 per share, issued and outstanding as of such date, all of which was held of record and beneficially by Solara Digital Infrastructure Fund VI LP.
(b) Approval by Cloudium Technologies plc. The Merger Agreement was duly approved and adopted by the board of directors of Cloudium Technologies plc at a meeting duly called and held on January 22, 2024, at which a quorum was present, and the board of directors of Cloudium Technologies plc resolved to recommend that the stockholders of Cloudium Technologies plc approve and adopt the Merger Agreement and the transactions contemplated thereby, including the merger. Thereafter, the Merger Agreement and the transactions contemplated thereby, including the merger, were duly approved and adopted by the stockholders of Cloudium Technologies plc at a special meeting of stockholders duly called and held on May 20, 2024, at which a quorum was present. At such special meeting, approximately 82.4% of the shares of common stock of Cloudium Technologies plc that were present in person or represented by proxy and entitled to vote at the special meeting were voted in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the merger. The total number of outstanding shares of common stock of Cloudium Technologies plc entitled to vote on the Merger Agreement as of the record date for such special meeting was 184,200,000 shares.
(c) Approval by Solara Digital Infrastructure Fund VI LP. Solara Digital Infrastructure Fund VI LP, as a party to the Merger Agreement and as the sole stockholder of Stratos Merger Sub Inc., has duly authorized the execution, delivery, and performance of the Merger Agreement and the consummation of the transactions contemplated thereby, including the merger, by all requisite action on the part of its general partner.
SECTION 4. STRUCTURE OF THE MERGER
Pursuant to the terms and conditions of the Merger Agreement and in accordance with Section 251 of the DGCL, at the Effective Time (as defined in Section 5 below), Stratos Merger Sub Inc. shall be merged with and into Cloudium Technologies plc (the "Merger"). The Merger constitutes a reverse triangular merger, in which the Merger Sub is merged with and into the target company, and the target company survives as the Surviving Corporation.
Upon the consummation of the Merger:
(a) Cloudium Technologies plc shall be the surviving corporation of the Merger and shall continue its existence as a corporation under the laws of its jurisdiction of formation, being England and Wales, following the Merger, subject to such amendments to its organizational documents as are described in Section 8 hereof.
(b) Stratos Merger Sub Inc. shall cease to exist as a separate entity upon the effectiveness of the Merger, and its separate corporate existence shall thereupon be terminated.
(c) Following the Merger, the Surviving Corporation shall be a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership, with its principal executive office at 600 Townsend Street, Suite 800, San Francisco, California 94103, and its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom.
SECTION 5. EFFECTIVE TIME
The Merger shall become effective upon the filing of this Certificate of Merger with the Secretary of State of the State of Delaware, or at such later time as is specified herein (the "Effective Time").
The Effective Time of the Merger shall be 11:59 PM Eastern Time on [●], 2024.
[Note: The date to be inserted in the blank above shall be the Closing Date as defined in Section 1.1 of the Merger Agreement. All parties anticipate that such Closing Date shall be July 9, 2024, subject to the satisfaction or waiver of all conditions precedent to the obligations of the parties to consummate the Merger as set forth in Article VII of the Merger Agreement.]
In the event that this Certificate of Merger is filed with the Secretary of State of the State of Delaware prior to the date and time specified above, the Merger shall not become effective until such specified date and time. In the event that this Certificate of Merger is filed with the Secretary of State of the State of Delaware after the date and time specified above, the Merger shall become effective upon the filing of this Certificate of Merger.
SECTION 6. EFFECT OF THE MERGER
At the Effective Time, the separate existence of Stratos Merger Sub Inc. shall cease, and Stratos Merger Sub Inc. shall be merged with and into Cloudium Technologies plc, with Cloudium Technologies plc continuing as the Surviving Corporation.
At and after the Effective Time, the Surviving Corporation shall thereupon and thereafter possess all the rights, privileges, powers, immunities, and franchises, of a public as well as of a private nature, and shall be subject to all the restrictions, disabilities, and duties, of each of the constituent entities to the Merger, all as provided under Section 259 of the DGCL and other applicable provisions of law. Without limiting the generality of the foregoing:
(a) All property, real, personal, and mixed, and all debts due on whatever account, including subscriptions to shares, and all other choses in action, and all and every other interest of or belonging to or due to each of the constituent entities shall be taken and deemed to be transferred to and vested in the Surviving Corporation without further act or deed, and the title to any real property, or any interest therein, vested in either of the constituent entities shall not revert or be in any way impaired by reason of the Merger.
(b) All rights of creditors and all liens upon the property of each of the constituent entities shall be preserved unimpaired, limited in lien to the property affected by such liens immediately prior to the Effective Time, and all the debts, liabilities, obligations, and duties of each of the constituent entities shall thenceforth attach to the Surviving Corporation, and may be enforced against it to the same extent as if such debts, liabilities, obligations, and duties had been incurred or contracted by it.
(c) All debts, liabilities, obligations, and duties of Stratos Merger Sub Inc. shall become the debts, liabilities, obligations, and duties of the Surviving Corporation as of the Effective Time.
(d) Any action or proceeding pending by or against either of the constituent entities may be prosecuted to judgment, which judgment may be enforced by or against the Surviving Corporation, or the Surviving Corporation may be proceeded against or substituted in such constituent entity's place.
SECTION 7. CONVERSION OF SHARES; MERGER CONSIDERATION
At the Effective Time, by virtue of the Merger and without any action on the part of any holder of shares of capital stock of either of the constituent entities:
(a) Conversion of Cloudium Technologies plc Common Stock. Each share of common stock of Cloudium Technologies plc issued and outstanding immediately prior to the Effective Time (other than (i) Excluded Shares, as defined in Section 2.1(b) of the Merger Agreement, and (ii) Dissenting Shares, as defined in Section 2.1(d) of the Merger Agreement) shall be automatically converted into the right to receive Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share in cash, without interest and less any applicable withholding taxes (the "Merger Consideration"), subject to the terms and conditions of the Merger Agreement, including the rollover elections described in Section 7(d) below. From and after the Effective Time, each such share shall no longer be outstanding, shall be automatically cancelled and retired, and shall cease to exist, and each holder of any such share shall cease to have any rights with respect thereto other than the right to receive the Merger Consideration in accordance with the terms and conditions of the Merger Agreement and this Certificate of Merger.
(b) Conversion of Merger Sub Common Stock. Each share of common stock, par value $0.001 per share, of Stratos Merger Sub Inc. issued and outstanding immediately prior to the Effective Time shall be automatically converted into one (1) validly issued, fully paid, and nonassessable share of common stock of the Surviving Corporation. From and after the Effective Time, each certificate or book-entry share that immediately prior to the Effective Time represented shares of common stock of Stratos Merger Sub Inc. shall represent an equal number of shares of common stock of the Surviving Corporation.
(c) Treasury Shares. Each share of common stock of Cloudium Technologies plc held in the treasury of Cloudium Technologies plc immediately prior to the Effective Time shall be automatically cancelled and retired and shall cease to exist, and no consideration shall be delivered or payable in exchange therefor.
(d) Rollover Shares. Notwithstanding Section 7(a) above, certain shares of common stock of Cloudium Technologies plc held by Jonathan Hargrove (representing approximately 4.2% of the outstanding shares of common stock of Cloudium Technologies plc) and Pinnacle Growth Ventures LLC (representing approximately 11.6% of the outstanding shares of common stock of Cloudium Technologies plc) are subject to those certain Rollover Agreements, each dated as of January 22, 2024 (the "Rollover Agreements"), by and among each such holder, Solara Digital Infrastructure Fund VI LP, and Cloudium Technologies plc, respectively, pursuant to which portions of such holders' shares of common stock of Cloudium Technologies plc shall, at the Effective Time, be exchanged for equity interests in the Surviving Corporation (or in a parent entity of the Surviving Corporation) rather than cash, as more fully described in Section 2.3 of the Merger Agreement and the applicable Rollover Agreements. The treatment of such rollover shares at the Effective Time shall be as set forth in the Merger Agreement and the applicable Rollover Agreements.
(e) Aggregate Equity Value. The aggregate equity value of Cloudium Technologies plc implied by the Merger and the Merger Consideration is approximately Six Billion Eight Hundred Million Dollars ($6,800,000,000), based upon the number of shares of common stock outstanding as of the date of the Merger Agreement and the Merger Consideration of $36.92 per share.
SECTION 8. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION
At the Effective Time, the certificate of incorporation (or equivalent organizational document) of the Surviving Corporation shall be amended and restated in its entirety in the form attached to the Merger Agreement as Exhibit B (the "Form of Surviving Corporation Certificate of Incorporation"), and as so amended and restated shall be the certificate of incorporation (or equivalent organizational document) of the Surviving Corporation until thereafter amended in accordance with the DGCL, the laws of England and Wales, and the terms of the Merger Agreement, as applicable. The form of such amended and restated certificate of incorporation is incorporated herein by reference to Exhibit B to the Merger Agreement.
SECTION 9. DISSENTING SHARES AND APPRAISAL RIGHTS
Holders of shares of common stock of Cloudium Technologies plc who have not voted in favor of, consented to, or otherwise approved the Merger, and who have properly demanded appraisal of their shares in accordance with Section 262 of the DGCL, and who have not effectively withdrawn or lost their right to appraisal, shall be entitled to receive, in lieu of the Merger Consideration, payment of the fair value of their shares as determined in accordance with Section 262 of the DGCL. Any shares of common stock of Cloudium Technologies plc as to which appraisal rights have been properly demanded and perfected and not effectively withdrawn, waived, or otherwise lost in accordance with Section 262 of the DGCL (collectively, "Dissenting Shares") shall not be converted into the right to receive the Merger Consideration as described in Section 7(a) hereof, but instead shall be treated in accordance with Section 262 of the DGCL and the applicable provisions of the Merger Agreement, including Section 2.1(d) thereof. If, after the Effective Time, any stockholder who has demanded appraisal shall effectively withdraw such demand, or if any court of competent jurisdiction shall determine that such stockholder is not entitled to the relief provided by Section 262 of the DGCL, then such shares shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration as described in Section 7(a) hereof, without interest.
SECTION 10. ESCROW AND INDEMNIFICATION
In accordance with the Escrow Agreement, dated as of the date hereof, among Solara Digital Infrastructure Fund VI LP, Cloudium Technologies plc (as the Surviving Corporation), and Cobalt Trust Company, as escrow agent (the "Escrow Agreement"), and in accordance with Article IX of the Merger Agreement, a portion of the aggregate Merger Consideration in the amount of Five Hundred Forty-Four Million Dollars ($544,000,000), representing approximately eight percent (8%) of the aggregate equity value of the transaction, will be deposited in escrow with Cobalt Trust Company, as escrow agent, at or promptly following the Effective Time. Such escrowed funds shall be held and distributed in accordance with the terms and conditions of the Escrow Agreement and Article IX of the Merger Agreement, and shall serve to secure the indemnification obligations of the former stockholders of Cloudium Technologies plc as set forth therein. Nothing in this Section 10 shall modify, amend, or supersede the terms of the Escrow Agreement or Article IX of the Merger Agreement.
SECTION 11. AUTHORIZED SIGNATORY
This Certificate of Merger has been executed by an authorized officer of Stratos Merger Sub Inc. on behalf of Stratos Merger Sub Inc., as a constituent corporation in the Merger, and is being filed with the Secretary of State of the State of Delaware pursuant to Section 251 of the DGCL. The undersigned officer of Stratos Merger Sub Inc. hereby certifies, under penalties of perjury, that the facts stated herein are true and correct.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Merger as of the date set forth below.
STRATOS MERGER SUB INC.
By: ________
Name: [Authorized Officer]
Title: [Title]
Date: [●], 2024
SECTION 12. SURVIVING CORPORATION ACKNOWLEDGMENT
The undersigned, as an authorized officer of Cloudium Technologies plc, the Surviving Corporation in the Merger, hereby acknowledges and confirms the filing of this Certificate of Merger and the effectiveness of the Merger on the terms and conditions set forth herein and in the Merger Agreement.
CLOUDIUM TECHNOLOGIES PLC (as Surviving Corporation)
By: ________
Name: [Authorized Officer]
Title: [Title]
Date: [●], 2024
FILING AND COMPLETION INSTRUCTIONS
(For Internal Use Only — Not Part of the Filed Document)
The following instructions are provided for the guidance of counsel and the parties in connection with the completion and filing of this Certificate of Merger. These instructions do not form part of the Certificate of Merger and shall not be included in the document as filed with the Secretary of State of the State of Delaware.
1. Completion of Blanks. All bracketed items ("[●]") in this form of Certificate of Merger, including the Effective Time date and the names and titles of the authorized signatories, are to be completed at the time of filing on the Closing Date, as defined in Section 1.1 of the Merger Agreement. The anticipated Closing Date is July 9, 2024, subject to the satisfaction or waiver of all conditions precedent set forth in Article VII of the Merger Agreement.
2. Filing. This Certificate of Merger is to be filed with the Secretary of State of the State of Delaware on the Closing Date, together with the applicable filing fee as prescribed by the Delaware Secretary of State's fee schedule then in effect. Filing may be made electronically through the Delaware Division of Corporations' online filing system or by delivery to the office of the Secretary of State at 401 Federal Street, Suite 4, Dover, Delaware 19901.
3. Filing Fee. The filing fee for the Certificate of Merger shall be remitted to the Delaware Secretary of State in accordance with the applicable fee schedules under Section 391 of the DGCL. As of the date of the Merger Agreement, the filing fee for a certificate of merger is $251.00 (subject to change). Counsel shall confirm the applicable fee prior to filing.
4. Conformed Copy. A conformed copy of the filed Certificate of Merger, bearing the Secretary of State's file stamp and endorsement, shall be obtained promptly following filing and distributed to counsel for all parties to the Merger Agreement, including:
(a) Calloway & Voss LLP (counsel to Solara Digital Infrastructure Fund VI LP and Stratos Merger Sub Inc.);
(b) Crane & Ames LLP (counsel to Cloudium Technologies plc);
(c) Solara Digital Infrastructure Fund VI LP (c/o its general partner); and
(d) Cloudium Technologies plc (c/o the office of the General Counsel).
5. Post-Filing Notices. Upon the filing of this Certificate of Merger and the effectiveness of the Merger, notice of the effectiveness of the Merger shall be promptly provided to each of the following:
(a) Cobalt Trust Company (escrow agent under the Escrow Agreement), at its principal office at 399 Park Avenue, 22nd Floor, New York, New York 10022, Attention: Corporate Trust Administration;
(b) Cascade Corporate Services Inc. (transfer agent for the common stock of Cloudium Technologies plc), at its principal office at 17 Battery Place, Suite 820, New York, New York 10004, Attention: Shareholder Services; and
(c) Meridian Atlantic Bank, N.A. (administrative agent under the Credit Agreement, dated as of January 22, 2024, among Stratos Merger Sub Inc., Solara Digital Infrastructure Fund VI LP, and the lenders party thereto), at its principal office at 383 Madison Avenue, New York, New York 10179, Attention: Agency Services Group.
6. Coordination with Other Filings. The filing of this Certificate of Merger should be coordinated with any other filings required to be made in connection with the consummation of the Merger, including without limitation (a) the filing of any certificate of ownership and merger or similar document required under the laws of England and Wales, (b) any required filings with the U.S. Securities and Exchange Commission, including the filing of a Form 15 to deregister the common stock of Cloudium Technologies plc under the Securities Exchange Act of 1934, as amended, and (c) any required filings with the New York Stock Exchange or other applicable securities exchange in connection with the delisting of the common stock of Cloudium Technologies plc.