1041-00003 · Solara Digital Infrastructure LP · Transaction Documents/Merger Agreement

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

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EXHIBIT B

FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CLOUDIUM TECHNOLOGIES PLC

(to be effective as of the Effective Time)

Attached to and forming part of the Agreement and Plan of Merger, dated as of January 22, 2024, among Cloudium Technologies plc, a Delaware corporation ("Cloudium" or the "Corporation"), Stratos Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP ("Merger Sub"), and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Parent"), as such agreement may be amended, supplemented, or otherwise modified from time to time in accordance with its terms (the "Merger Agreement").

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CLOUDIUM TECHNOLOGIES PLC

(Pursuant to Sections 242, 245, and 251 of the General Corporation Law of the State of Delaware)

Cloudium Technologies plc, a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (as amended from time to time, the "DGCL"), does hereby certify as follows:

FIRST: The name of the corporation is Cloudium Technologies plc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 14, 2016, under the name "Cloudium Technologies Inc.," and was subsequently amended by (a) the Certificate of Amendment filed on September 8, 2017, (b) the Certificate of Amendment filed on June 22, 2018, (c) the Amended and Restated Certificate of Incorporation filed on October 3, 2019 in connection with the Corporation's initial public offering, and (d) the Certificate of Amendment filed on April 15, 2021, effecting the change of name to "Cloudium Technologies plc."

SECOND: This Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation") restates, integrates, and further amends the provisions of the certificate of incorporation of the Corporation as heretofore amended and supplemented. This Amended and Restated Certificate of Incorporation has been duly adopted and approved in accordance with Sections 242, 245, and 251 of the DGCL, in connection with the merger (the "Merger") of Stratos Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership, with and into the Corporation, with the Corporation continuing as the surviving corporation of the Merger and becoming a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP.

THIRD: This Amended and Restated Certificate of Incorporation shall become effective at 11:59 p.m. Eastern Time on July 9, 2024 (the "Effective Time"), being the Effective Time of the Merger as set forth in the Certificate of Merger filed with the Secretary of State of the State of Delaware.

FOURTH: The text of the certificate of incorporation of the Corporation is hereby restated, integrated, and amended in its entirety to read as follows:

ARTICLE I

NAME

The name of the corporation is Cloudium Technologies plc (hereinafter referred to as the "Corporation"). The Corporation's name shall be retained as set forth herein immediately following the Effective Time. The name of the Corporation may be subsequently changed by amendment of this Certificate of Incorporation in accordance with the DGCL, subject to such approvals as may be required under the Merger Agreement and any ancillary agreements thereto. For the avoidance of doubt, any future re-domestication, conversion, or change of the Corporation's name (including the conversion to "Cloudium Inc." as contemplated by the Post-Closing Integration Memorandum referenced in Section 6.12 of the Merger Agreement) shall require a separate corporate action duly authorized and effected in accordance 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, 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, in the manner provided by law, change the registered agent and the registered office of the Corporation, and may also maintain additional offices in such other places, within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.

ARTICLE III

PURPOSE

The nature of the business or purposes to be conducted or promoted by 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 powers necessary or convenient to the conduct, promotion, and attainment of the business and purposes set forth above, including, without limitation, all powers conferred upon corporations by the DGCL as now existing or as hereafter amended.

ARTICLE IV

AUTHORIZED CAPITAL STOCK

Section 4.1. Authorized Shares. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is one hundred ten thousand (110,000) shares, consisting of:

(a) one hundred thousand (100,000) shares of Common Stock, par value $0.001 per share (the "Common Stock"); and

(b) ten thousand (10,000) shares of Preferred Stock, par value $0.001 per share (the "Preferred Stock").

The authorized share count set forth in this Section 4.1 is established to accommodate the post-Merger equity structure of the Corporation as a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, including, without limitation, the issuance of equity interests in connection with rollover equity contributions by Jonathan Hargrove and Pinnacle Growth Ventures LLC pursuant to the terms of the Rollover Agreements (as defined in the Merger Agreement) and the Stockholders Agreement of even date herewith among the Corporation, Parent, and the rollover equity participants. The pre-Merger public company capital structure of the Corporation, consisting of 184,200,000 shares of common stock issued and outstanding and traded on the Nasdaq Global Select Market, is superseded in its entirety at the Effective Time by operation of the Merger, and all shares of common stock of the Corporation outstanding immediately prior to the Effective Time (other than Cancelled Shares and Dissenting Shares, each as defined in the Merger Agreement) are converted into the right to receive the Merger Consideration as set forth in Article II of the Merger Agreement.

Section 4.2. Common Stock.

(a) Voting Rights. Except as otherwise required by applicable law or as expressly provided in this Certificate of Incorporation or in any certificate of designation with respect to any series of Preferred Stock, 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 the stockholders of the Corporation, including, without limitation, the election and removal of directors. Except as otherwise required by applicable law or as expressly provided in this Certificate of Incorporation, the holders of Common Stock shall vote together as a single class on all matters submitted to a vote of the stockholders.

(b) Dividends and Distributions. Subject to the rights and preferences of the holders of any series of Preferred Stock then outstanding, the holders of shares of Common Stock shall be entitled to receive, when, as, and if declared by the Board of Directors of the Corporation (the "Board of Directors" or the "Board") out of funds of the Corporation legally available therefor, such dividends and other distributions (payable in cash, property, or shares of the Corporation's capital stock) as may be declared from time to time by the Board of Directors. Any dividends or distributions paid on the Common Stock shall be paid ratably on a per share basis to all holders of Common Stock.

(c) Liquidation, Dissolution, and Winding Up. In the event of 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 after satisfaction of all preferential rights and the distribution of any preferential amounts to which the holders of shares of Preferred Stock are entitled pursuant to the terms of this Certificate of Incorporation or any certificate of designation establishing the terms of such Preferred Stock, the holders of shares of Common Stock shall be entitled to share ratably in the remaining assets of the Corporation available for distribution to its stockholders, 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, as such holder, have any preemptive right to purchase or subscribe for any additional shares of capital stock of the Corporation or any other securities of the Corporation which may at any time be issued, sold, or offered for sale by the Corporation, unless such preemptive rights are expressly granted to such holder by separate written agreement with the Corporation.

Section 4.3. Preferred Stock.

(a) Issuance in Series. The Board of Directors is hereby expressly authorized, subject to any limitations prescribed by law and except as otherwise provided in this Certificate of Incorporation, to provide by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, and with respect to each such series, to fix the number of shares constituting such series, and the designations, powers (including voting powers, if any), preferences, and relative, participating, optional, or other special rights, and the qualifications, limitations, and restrictions thereof, of the shares of each such series. The authority of the Board of Directors with respect to each series shall include, but not be limited to, the authority to determine the following:

(i) the designation of the series, the number of shares to constitute the series (which number the Board of Directors may thereafter, except where otherwise provided in the applicable certificate of designation, increase or decrease, but not below the number of shares thereof then outstanding);

(ii) the dividend rate or rates on the shares of such series, whether dividends shall be cumulative, and if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of the series;

(iii) whether the series shall have voting rights, in addition to any voting rights provided by law, and if so, the terms of such voting rights;

(iv) whether the series shall have conversion or exchange privileges and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board of Directors may determine;

(v) whether or not the shares of the series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, the amount per share payable in case of redemption (which amount may vary under different conditions and at different redemption dates), and any fund for the purchase or redemption thereof;

(vi) whether or not a sinking fund shall be provided for the purchase or redemption of shares of the series and, if so, the terms and amount of such sinking fund;

(vii) the rights of the shares of the series in the event of voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of the series; and

(viii) any other powers, preferences, rights, qualifications, limitations, and restrictions of the series as the Board of Directors may deem advisable and as shall not be inconsistent with the provisions of this Certificate of Incorporation and applicable law.

(b) No Stockholder Approval Required. Shares of Preferred Stock of any series authorized pursuant to this Section 4.3 may be issued by the Board of Directors from time to time without further approval of the stockholders of the Corporation, and such shares may be issued for such consideration and to such persons as the Board of Directors in its discretion shall determine, subject only to any limitations as may be imposed by the rules and requirements of any stock exchange or automated quotation system on which the Corporation's securities may then be listed or quoted (if applicable) or by the DGCL.

ARTICLE V

BOARD OF DIRECTORS

Section 5.1. Number and Election.

(a) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In exercising their powers and discharging their duties, the directors shall act in accordance with the DGCL, this Certificate of Incorporation, and the Bylaws of the Corporation (as amended from time to time, the "Bylaws").

(b) 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, if applicable, by the sole stockholder of the Corporation. The initial number of directors of the Corporation as the surviving corporation in the Merger shall be as set forth in the written consent appointing the initial directors effective as of the Effective Time (July 9, 2024), as designated by Solara Digital Infrastructure Fund VI LP in its capacity as the sole stockholder of the Corporation immediately following the Effective Time and in accordance with Section 6.11 of the Merger Agreement.

(c) Except as otherwise provided in any certificate of designation with respect to any series of Preferred Stock, directors shall be elected at each annual meeting of stockholders, or by written consent of the stockholders in lieu of such meeting, to serve until the next annual meeting of stockholders and until their respective successors are duly elected and qualified, or until their earlier death, resignation, retirement, disqualification, or removal from office. Directors need not be elected by written ballot unless the Bylaws of the Corporation so require.

(d) No decrease in the authorized number of directors constituting the entire Board of Directors shall shorten the term of any incumbent director.

Section 5.2. Removal. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. This removal standard is consistent with the governance of the Corporation as a wholly owned subsidiary and shall apply unless a different standard is required by the DGCL or established by the terms of any series of Preferred Stock.

Section 5.3. Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding, vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, by a sole remaining director, or by the sole stockholder of the Corporation. Any director elected in accordance with the preceding sentence to fill a vacancy shall hold office until the next annual meeting of stockholders and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, retirement, disqualification, or removal from office.

Section 5.4. Written Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and such written consent or consents or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such consent shall have the same force and effect as a unanimous vote of the Board of Directors or committee at a duly convened meeting and may be stated as such in any document or instrument filed with the Secretary of State of the State of Delaware or delivered to any third party.

ARTICLE VI

BYLAWS

In furtherance and not in limitation of the powers conferred upon it 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 present at any regular or special meeting of the Board of Directors at which a quorum is present, or by unanimous written consent of the Board of Directors in accordance with Section 5.4 hereof. The stockholders of the Corporation shall also have the power to adopt, amend, alter, or repeal the Bylaws. The grant of authority to the Board of Directors to adopt, amend, alter, or repeal the Bylaws shall not divest or limit the power of the stockholders to adopt, amend, alter, or repeal the Bylaws.

ARTICLE VII

LIMITATION OF DIRECTOR LIABILITY

Section 7.1. Elimination of Personal Liability. To the fullest extent permitted by the DGCL (including, without limitation, Section 102(b)(7) thereof, as such section may be amended, supplemented, or replaced from time to time), 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 generality of the foregoing sentence, and for the avoidance of doubt, this provision shall not eliminate or limit the liability of a director:

(a) for any breach of the director's duty of loyalty to the Corporation or its stockholders;

(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

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

If the DGCL is hereafter amended to authorize the further elimination or limitation of the 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, automatically and without further action by the stockholders or directors of the Corporation. Any amendment to or adoption of any provision of the DGCL that has the effect of increasing the liability of a director of the Corporation beyond the limitations provided in this Section 7.1 shall apply to acts or omissions of directors occurring after the effective date of such amendment or adoption, and shall not apply retroactively.

Section 7.2. Amendment; Non-Retroactivity. Any repeal, amendment, modification, or adoption of any provision in this Certificate of Incorporation or the Bylaws inconsistent with this Article VII shall not adversely affect any right or protection of any director of the Corporation existing at the time of such repeal, amendment, modification, or adoption with respect to any act or omission occurring prior to the time of such repeal, amendment, modification, or adoption. The rights conferred by this Article VII shall be contract rights and shall continue as to any person who has ceased to be a director of the Corporation, and shall inure to the benefit of the heirs, executors, administrators, and other legal representatives of such person.

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), any person (an "Indemnified 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, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation as a director, officer, employee, partner, trustee, or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit plan, or other enterprise (each, a "Covered Entity"), or by reason of any action alleged to have been taken or omitted in any such capacity, against all expenses (including attorneys' fees and disbursements), judgments, fines (including excise taxes assessed on a person with respect to an employee benefit plan), penalties, and amounts paid in settlement actually and reasonably incurred by such Indemnified Person or on such Indemnified Person's behalf in connection with such Proceeding and any appeal therefrom.

For the avoidance of doubt, the indemnification obligations set forth in this Section 8.1 are consistent with the subrogation waiver provisions contained in the Buyer-Side Representation and Warranty Insurance Policy issued by Northfield Assurance LLC (Policy No. NFA-TRI-2024-00487, effective as of the Effective Time), which waives subrogation rights against the Corporation's current and former officers and directors with respect to claims paid under such policy, except in cases of actual fraud by such officer or director. Nothing in this Section 8.1 shall be construed to limit, modify, or supersede the terms of such insurance policy or any other insurance policy maintained by or on behalf of the Corporation.

Section 8.2. Advancement of Expenses. The Corporation shall, to the fullest extent not prohibited by the DGCL or other applicable law, advance all expenses (including attorneys' fees and disbursements) incurred by an Indemnified Person in defending any Proceeding prior to the final disposition of such Proceeding (an "Expense Advancement"). An Expense Advancement shall be made upon receipt of an undertaking by or on behalf of such Indemnified Person 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 or by settlement that such Indemnified Person is not entitled to be indemnified for such expenses under this Article VIII or otherwise. The Corporation may, in its discretion, advance expenses to any employee or agent of the Corporation to the extent not prohibited by the DGCL or other applicable law. Such Expense Advancement shall be made without regard to the Indemnified Person's ability to repay such expenses and without regard to the Indemnified Person's ultimate entitlement to indemnification under this Article VIII or otherwise. The undertaking required by this Section 8.2 shall be an unlimited general obligation of the Indemnified Person but need not be secured and shall be accepted without reference to the financial ability of the Indemnified Person to make repayment.

Section 8.3. Non-Exclusivity of Rights. The rights to indemnification and Expense Advancement conferred in this Article VIII shall not be exclusive of any other right which any Indemnified Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws, any agreement (including, without limitation, any indemnification agreement entered into by the Corporation with any director or officer), any vote of stockholders or disinterested directors, any provision of law, or otherwise. The Corporation is authorized to enter into individual indemnification agreements with any director, officer, employee, or agent of the Corporation, and such agreements may provide rights in addition to, or different from, the rights provided by this Article VIII.

Section 8.4. 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 is or was serving at the request of the Corporation as a director, officer, employee, partner, trustee, or agent of a Covered Entity, 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 or the obligation to indemnify such person against such liability under the provisions of this Article VIII or under the DGCL. The Corporation may create a trust fund, grant a security interest in the Corporation's assets, or use other means (including, without limitation, a letter of credit) to ensure the payment of such sums as may become necessary to effectuate the provisions of this Article VIII.

Section 8.5. Survival. The indemnification and Expense Advancement provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to any person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, administrators, and other legal representatives of such person. No amendment, alteration, repeal, or adoption of any provision of this Certificate of Incorporation or the Bylaws inconsistent with this Article VIII shall adversely affect any right or protection of any Indemnified Person existing at the time of such amendment, alteration, repeal, or adoption with respect to acts or omissions occurring prior to such amendment, alteration, repeal, or adoption. The rights conferred by this Article VIII shall be deemed to be contract rights, and shall be enforceable by any Indemnified Person as third-party beneficiaries of this Certificate of Incorporation.

ARTICLE IX

STOCKHOLDER ACTION

Section 9.1. 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 or by electronic transmission, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of stock entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing or by electronic transmission and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation in accordance with the DGCL.

For the avoidance of doubt, this Section 9.1 replaces in its entirety the prior provision of the Corporation's certificate of incorporation that prohibited stockholder action by written consent in lieu of a meeting, which restriction was appropriate for the Corporation as a publicly traded company but is no longer necessary or desirable given that the Corporation is now a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP following the closing of the Merger, the delisting of the Corporation's shares from the Nasdaq Global Select Market (effective July 10, 2024), and the deregistration of the Corporation's common stock under the Securities Exchange Act of 1934, as amended, by means of the Form 15 filed with the Securities and Exchange Commission on July 30, 2024.

Section 9.2. Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board (if any), the President, or by the holders of not less than a majority of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting, and shall be held at such place, on such date, and at such time as shall be fixed by the Board of Directors or the person calling the meeting, subject to the provisions of the Bylaws. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of the meeting.

ARTICLE X

CORPORATE OPPORTUNITIES

To the fullest extent permitted by Section 122(17) of the DGCL (or any successor provision thereto) and except as may be otherwise expressly agreed in writing between the Corporation and any such person, the Corporation, on behalf of itself and its subsidiaries, hereby renounces and waives any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, any business opportunity that may from time to time be presented to or come to the attention of any of the following persons (collectively, the "Exempted Persons"):

(a) Solara Digital Infrastructure Fund VI LP, the sole stockholder of the Corporation;

(b) any affiliate of Solara Digital Infrastructure Fund VI LP, including, without limitation, Solara Digital Infrastructure LP, Solara Digital GP LLC, Solara Fund VI GP LLC, Solara Digital Co-Invest VI-A LP, and any successor entities thereto;

(c) any partner, member, director, officer, manager, employee, agent, stockholder, or other equity holder of any of the foregoing entities; and

(d) any director or officer of the Corporation who is also a partner, member, director, officer, manager, employee, or agent of any of the foregoing entities (in each case, solely in such person's capacity as a partner, member, director, officer, manager, employee, or agent of such entity and not in such person's capacity as a director or officer of the Corporation).

The Corporation acknowledges and agrees that the Exempted Persons engage, and may in the future engage, directly or indirectly, in investing, management, advisory, development, operating, and other business activities of every type and description, and that the Exempted Persons may have, and may in the future have, interests (whether as equity holders, creditors, partners, members, managers, directors, officers, employees, agents, advisors, or otherwise) in other entities, including, without limitation, entities that compete with, or that engage in one or more lines of business similar or related to those engaged in by, the Corporation or any of its subsidiaries. Neither the Corporation nor any stockholder of the Corporation shall have any right in or to any business opportunity, or the income or profits derived therefrom, that may from time to time be presented to or come to the attention of any Exempted Person, even if such opportunity is one that the Corporation or any of its subsidiaries might reasonably have been expected to pursue or that may be of interest to the Corporation or any of its subsidiaries, and each Exempted Person shall have the right to pursue such business opportunity for such Exempted Person's own account or on behalf of another person, and no Exempted Person shall have any duty or obligation to refrain from (i) engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries, (ii) investing or owning any interest in, or developing a business relationship with, any person that is engaged in any business activities that compete with those of the Corporation or any of its subsidiaries, or (iii) doing business with any client or customer of the Corporation or any of its subsidiaries.

To the fullest extent permitted by applicable law, no Exempted Person shall be liable to the Corporation or any of its subsidiaries or any stockholder of the Corporation for breach of any fiduciary or other duty by reason of any such activities or any of the foregoing. Any person purchasing or otherwise acquiring, or being the holder of, any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article X.

Notwithstanding anything in this Article X to the contrary, the renunciation and waiver set forth herein shall not apply to any business opportunity that is expressly presented or offered to any person who is a director or officer of the Corporation solely in such person's capacity as a director or officer of the Corporation (and not in any other capacity as an Exempted Person), and the Corporation does not renounce its interest in any such opportunity.

ARTICLE XI

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 any other provision of this Certificate of Incorporation or the Bylaws (and notwithstanding the fact that a lesser percentage or separate class vote may be specified by law, this Certificate of Incorporation, or the Bylaws), the affirmative vote of the holders of a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, change, or repeal any provision of this Certificate of Incorporation; provided, however, that this requirement shall be in addition to, and not in lieu of, any separate class or series vote required by the terms of any series of Preferred Stock established pursuant to Article IV hereof or by the DGCL.

ARTICLE XII

EXCLUSIVE FORUM

Section 12.1. Delaware Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, any other state court of the State of Delaware, or, if no state court of the State of Delaware has subject matter jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for:

(a) any derivative action or proceeding brought on behalf of the Corporation;

(b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders;

(c) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate of Incorporation, or the Bylaws (as either may be amended from time to time); or

(d) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware.

Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 12.1. This Section 12.1 shall not apply to suits brought to enforce any duty or liability created by the Securities Exchange Act of 1934, as amended, or any rule or regulation promulgated thereunder, or any other claim for which the federal courts of the United States have exclusive jurisdiction.

Section 12.2. Federal Forum for Securities Act Claims. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended (the "Securities Act"). Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 12.2. For the avoidance of doubt, this Section 12.2 is intended to benefit the Corporation and shall not be deemed to be applicable to, or to create any rights in, any person other than the Corporation and its stockholders; provided, further, that given that the Corporation is no longer publicly traded (its shares of common stock having been delisted from the Nasdaq Global Select Market effective July 10, 2024, and its reporting obligations under the Securities Exchange Act of 1934, as amended, having been terminated following the filing of a Form 15 with the Securities and Exchange Commission on July 30, 2024), this Section 12.2 is included as a protective measure and is expected to have limited practical application during the period in which the Corporation remains a private, wholly owned subsidiary.

Section 12.3. Personal Jurisdiction. If any action the subject matter of which is within the scope of Section 12.1 or Section 12.2 above is filed in a court other than a court located within the State of Delaware or, in the case of Section 12.2, a federal district court of the United States (a "Foreign Action"), the claiming party shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 12.1 or Section 12.2, as applicable, and (b) having service of process made upon such claiming party in any such enforcement action by service upon such claiming party's counsel in the Foreign Action as agent for such claiming party.

ARTICLE XIII

SEVERABILITY

If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal, or unenforceable as applied to any person, entity, or circumstance for any reason whatsoever, then, to the fullest extent permitted by law: (a) the validity, legality, and enforceability of such provision or provisions as applied to any other person, entity, or circumstance, and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any section or article 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; and (b) to the fullest extent possible, the provisions of this Certificate of Incorporation (including, without limitation, each portion of any section or article of this Certificate of Incorporation containing any such provision held to be invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal, or unenforceable.

ARTICLE XIV

INCORPORATOR

The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware by the incorporator named therein in connection with the formation of the Corporation. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242, 245, and 251 of the DGCL, in connection with the merger of Stratos Merger Sub Inc., a Delaware corporation, with and into the Corporation, with the Corporation continuing as the surviving corporation, and is being filed simultaneously with the Certificate of Merger. No vote of the stockholders of the Corporation was required for the adoption of this Amended and Restated Certificate of Incorporation other than the approval of the Merger by the holders of a majority of the outstanding shares of common stock of the Corporation, which approval was obtained at the Special Meeting of Stockholders of the Corporation held on June 27, 2024, and the adoption by the sole stockholder of Stratos Merger Sub Inc.

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[Signature Page to Amended and Restated Certificate of Incorporation of Cloudium Technologies plc]

IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of Cloudium Technologies plc (as the surviving corporation in the Merger), has caused this Amended and Restated Certificate of Incorporation to be executed as of July 9, 2024.

CLOUDIUM TECHNOLOGIES PLC (as the surviving corporation)

By: ________

Name: Sarah E. Caldwell

Title: Executive Vice President, General Counsel and Secretary

Date: ________

EXHIBIT B
FORM OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CLOUDIUM TECHNOLOGIES PLC
(to be effective as of the Effective Time)
Attached to and forming part of the Agreement and Plan of Merger, dated as of January 22, 2024, among Cloudium Technologies plc, a Delaware corporation ("Cloudium" or the "Corporation"), Stratos Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP ("Merger Sub"), and Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Parent"), as such agreement may be amended, supplemented, or otherwise modified from time to time in accordance with its terms (the "Merger Agreement").
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF CLOUDIUM TECHNOLOGIES PLC
(Pursuant to Sections 242, 245, and 251 of the General Corporation Law of the State of Delaware)
Cloudium Technologies plc, a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (as amended from time to time, the "DGCL"), does hereby certify as follows:
FIRST: The name of the corporation is Cloudium Technologies plc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 14, 2016, under the name "Cloudium Technologies Inc.," and was subsequently amended by (a) the Certificate of Amendment filed on September 8, 2017, (b) the Certificate of Amendment filed on June 22, 2018, (c) the Amended and Restated Certificate of Incorporation filed on October 3, 2019 in connection with the Corporation's initial public offering, and (d) the Certificate of Amendment filed on April 15, 2021, effecting the change of name to "Cloudium Technologies plc."
SECOND: This Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation") restates, integrates, and further amends the provisions of the certificate of incorporation of the Corporation as heretofore amended and supplemented. This Amended and Restated Certificate of Incorporation has been duly adopted and approved in accordance with Sections 242, 245, and 251 of the DGCL, in connection with the merger (the "Merger") of Stratos Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership, with and into the Corporation, with the Corporation continuing as the surviving corporation of the Merger and becoming a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP.
THIRD: This Amended and Restated Certificate of Incorporation shall become effective at 11:59 p.m. Eastern Time on July 9, 2024 (the "Effective Time"), being the Effective Time of the Merger as set forth in the Certificate of Merger filed with the Secretary of State of the State of Delaware.
FOURTH: The text of the certificate of incorporation of the Corporation is hereby restated, integrated, and amended in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Cloudium Technologies plc (hereinafter referred to as the "Corporation"). The Corporation's name shall be retained as set forth herein immediately following the Effective Time. The name of the Corporation may be subsequently changed by amendment of this Certificate of Incorporation in accordance with the DGCL, subject to such approvals as may be required under the Merger Agreement and any ancillary agreements thereto. For the avoidance of doubt, any future re-domestication, conversion, or change of the Corporation's name (including the conversion to "Cloudium Inc." as contemplated by the Post-Closing Integration Memorandum referenced in Section 6.12 of the Merger Agreement) shall require a separate corporate action duly authorized and effected in accordance 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, 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, in the manner provided by law, change the registered agent and the registered office of the Corporation, and may also maintain additional offices in such other places, within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
ARTICLE III
PURPOSE
The nature of the business or purposes to be conducted or promoted by 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 powers necessary or convenient to the conduct, promotion, and attainment of the business and purposes set forth above, including, without limitation, all powers conferred upon corporations by the DGCL as now existing or as hereafter amended.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
Section 4.1. Authorized Shares. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is one hundred ten thousand (110,000) shares, consisting of:
(a) one hundred thousand (100,000) shares of Common Stock, par value $0.001 per share (the "Common Stock"); and
(b) ten thousand (10,000) shares of Preferred Stock, par value $0.001 per share (the "Preferred Stock").
The authorized share count set forth in this Section 4.1 is established to accommodate the post-Merger equity structure of the Corporation as a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP, including, without limitation, the issuance of equity interests in connection with rollover equity contributions by Jonathan Hargrove and Pinnacle Growth Ventures LLC pursuant to the terms of the Rollover Agreements (as defined in the Merger Agreement) and the Stockholders Agreement of even date herewith among the Corporation, Parent, and the rollover equity participants. The pre-Merger public company capital structure of the Corporation, consisting of 184,200,000 shares of common stock issued and outstanding and traded on the Nasdaq Global Select Market, is superseded in its entirety at the Effective Time by operation of the Merger, and all shares of common stock of the Corporation outstanding immediately prior to the Effective Time (other than Cancelled Shares and Dissenting Shares, each as defined in the Merger Agreement) are converted into the right to receive the Merger Consideration as set forth in Article II of the Merger Agreement.
Section 4.2. Common Stock.
(a) Voting Rights. Except as otherwise required by applicable law or as expressly provided in this Certificate of Incorporation or in any certificate of designation with respect to any series of Preferred Stock, 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 the stockholders of the Corporation, including, without limitation, the election and removal of directors. Except as otherwise required by applicable law or as expressly provided in this Certificate of Incorporation, the holders of Common Stock shall vote together as a single class on all matters submitted to a vote of the stockholders.
(b) Dividends and Distributions. Subject to the rights and preferences of the holders of any series of Preferred Stock then outstanding, the holders of shares of Common Stock shall be entitled to receive, when, as, and if declared by the Board of Directors of the Corporation (the "Board of Directors" or the "Board") out of funds of the Corporation legally available therefor, such dividends and other distributions (payable in cash, property, or shares of the Corporation's capital stock) as may be declared from time to time by the Board of Directors. Any dividends or distributions paid on the Common Stock shall be paid ratably on a per share basis to all holders of Common Stock.
(c) Liquidation, Dissolution, and Winding Up. In the event of 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 after satisfaction of all preferential rights and the distribution of any preferential amounts to which the holders of shares of Preferred Stock are entitled pursuant to the terms of this Certificate of Incorporation or any certificate of designation establishing the terms of such Preferred Stock, the holders of shares of Common Stock shall be entitled to share ratably in the remaining assets of the Corporation available for distribution to its stockholders, 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, as such holder, have any preemptive right to purchase or subscribe for any additional shares of capital stock of the Corporation or any other securities of the Corporation which may at any time be issued, sold, or offered for sale by the Corporation, unless such preemptive rights are expressly granted to such holder by separate written agreement with the Corporation.
Section 4.3. Preferred Stock.
(a) Issuance in Series. The Board of Directors is hereby expressly authorized, subject to any limitations prescribed by law and except as otherwise provided in this Certificate of Incorporation, to provide by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, and with respect to each such series, to fix the number of shares constituting such series, and the designations, powers (including voting powers, if any), preferences, and relative, participating, optional, or other special rights, and the qualifications, limitations, and restrictions thereof, of the shares of each such series. The authority of the Board of Directors with respect to each series shall include, but not be limited to, the authority to determine the following:
(i) the designation of the series, the number of shares to constitute the series (which number the Board of Directors may thereafter, except where otherwise provided in the applicable certificate of designation, increase or decrease, but not below the number of shares thereof then outstanding);
(ii) the dividend rate or rates on the shares of such series, whether dividends shall be cumulative, and if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of the series;
(iii) whether the series shall have voting rights, in addition to any voting rights provided by law, and if so, the terms of such voting rights;
(iv) whether the series shall have conversion or exchange privileges and, if so, the terms and conditions of such conversion or exchange, including provision for adjustment of the conversion or exchange rate in such events as the Board of Directors may determine;
(v) whether or not the shares of the series shall be redeemable and, if so, the terms and conditions of such redemption, including the date or dates upon or after which they shall be redeemable, the amount per share payable in case of redemption (which amount may vary under different conditions and at different redemption dates), and any fund for the purchase or redemption thereof;
(vi) whether or not a sinking fund shall be provided for the purchase or redemption of shares of the series and, if so, the terms and amount of such sinking fund;
(vii) the rights of the shares of the series in the event of voluntary or involuntary liquidation, dissolution, or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of the series; and
(viii) any other powers, preferences, rights, qualifications, limitations, and restrictions of the series as the Board of Directors may deem advisable and as shall not be inconsistent with the provisions of this Certificate of Incorporation and applicable law.
(b) No Stockholder Approval Required. Shares of Preferred Stock of any series authorized pursuant to this Section 4.3 may be issued by the Board of Directors from time to time without further approval of the stockholders of the Corporation, and such shares may be issued for such consideration and to such persons as the Board of Directors in its discretion shall determine, subject only to any limitations as may be imposed by the rules and requirements of any stock exchange or automated quotation system on which the Corporation's securities may then be listed or quoted (if applicable) or by the DGCL.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1. Number and Election.
(a) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In exercising their powers and discharging their duties, the directors shall act in accordance with the DGCL, this Certificate of Incorporation, and the Bylaws of the Corporation (as amended from time to time, the "Bylaws").
(b) 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, if applicable, by the sole stockholder of the Corporation. The initial number of directors of the Corporation as the surviving corporation in the Merger shall be as set forth in the written consent appointing the initial directors effective as of the Effective Time (July 9, 2024), as designated by Solara Digital Infrastructure Fund VI LP in its capacity as the sole stockholder of the Corporation immediately following the Effective Time and in accordance with Section 6.11 of the Merger Agreement.
(c) Except as otherwise provided in any certificate of designation with respect to any series of Preferred Stock, directors shall be elected at each annual meeting of stockholders, or by written consent of the stockholders in lieu of such meeting, to serve until the next annual meeting of stockholders and until their respective successors are duly elected and qualified, or until their earlier death, resignation, retirement, disqualification, or removal from office. Directors need not be elected by written ballot unless the Bylaws of the Corporation so require.
(d) No decrease in the authorized number of directors constituting the entire Board of Directors shall shorten the term of any incumbent director.
Section 5.2. Removal. Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors. This removal standard is consistent with the governance of the Corporation as a wholly owned subsidiary and shall apply unless a different standard is required by the DGCL or established by the terms of any series of Preferred Stock.
Section 5.3. Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding, vacancies on the Board of Directors resulting from death, resignation, retirement, disqualification, removal, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, by a sole remaining director, or by the sole stockholder of the Corporation. Any director elected in accordance with the preceding sentence to fill a vacancy shall hold office until the next annual meeting of stockholders and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, retirement, disqualification, or removal from office.
Section 5.4. Written Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and such written consent or consents or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such consent shall have the same force and effect as a unanimous vote of the Board of Directors or committee at a duly convened meeting and may be stated as such in any document or instrument filed with the Secretary of State of the State of Delaware or delivered to any third party.
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred upon it 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 present at any regular or special meeting of the Board of Directors at which a quorum is present, or by unanimous written consent of the Board of Directors in accordance with Section 5.4 hereof. The stockholders of the Corporation shall also have the power to adopt, amend, alter, or repeal the Bylaws. The grant of authority to the Board of Directors to adopt, amend, alter, or repeal the Bylaws shall not divest or limit the power of the stockholders to adopt, amend, alter, or repeal the Bylaws.
ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY
Section 7.1. Elimination of Personal Liability. To the fullest extent permitted by the DGCL (including, without limitation, Section 102(b)(7) thereof, as such section may be amended, supplemented, or replaced from time to time), 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 generality of the foregoing sentence, and for the avoidance of doubt, this provision shall not eliminate or limit the liability of a director:
(a) for any breach of the director's duty of loyalty to the Corporation or its stockholders;
(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
(c) under Section 174 of the DGCL, relating to the unlawful payment of dividends, stock purchases, or redemptions; or
(d) for any transaction from which the director derived an improper personal benefit.
If the DGCL is hereafter amended to authorize the further elimination or limitation of the 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, automatically and without further action by the stockholders or directors of the Corporation. Any amendment to or adoption of any provision of the DGCL that has the effect of increasing the liability of a director of the Corporation beyond the limitations provided in this Section 7.1 shall apply to acts or omissions of directors occurring after the effective date of such amendment or adoption, and shall not apply retroactively.
Section 7.2. Amendment; Non-Retroactivity. Any repeal, amendment, modification, or adoption of any provision in this Certificate of Incorporation or the Bylaws inconsistent with this Article VII shall not adversely affect any right or protection of any director of the Corporation existing at the time of such repeal, amendment, modification, or adoption with respect to any act or omission occurring prior to the time of such repeal, amendment, modification, or adoption. The rights conferred by this Article VII shall be contract rights and shall continue as to any person who has ceased to be a director of the Corporation, and shall inure to the benefit of the heirs, executors, administrators, and other legal representatives of such person.
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), any person (an "Indemnified 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, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation as a director, officer, employee, partner, trustee, or agent of another corporation, partnership, joint venture, limited liability company, trust, employee benefit plan, or other enterprise (each, a "Covered Entity"), or by reason of any action alleged to have been taken or omitted in any such capacity, against all expenses (including attorneys' fees and disbursements), judgments, fines (including excise taxes assessed on a person with respect to an employee benefit plan), penalties, and amounts paid in settlement actually and reasonably incurred by such Indemnified Person or on such Indemnified Person's behalf in connection with such Proceeding and any appeal therefrom.
For the avoidance of doubt, the indemnification obligations set forth in this Section 8.1 are consistent with the subrogation waiver provisions contained in the Buyer-Side Representation and Warranty Insurance Policy issued by Northfield Assurance LLC (Policy No. NFA-TRI-2024-00487, effective as of the Effective Time), which waives subrogation rights against the Corporation's current and former officers and directors with respect to claims paid under such policy, except in cases of actual fraud by such officer or director. Nothing in this Section 8.1 shall be construed to limit, modify, or supersede the terms of such insurance policy or any other insurance policy maintained by or on behalf of the Corporation.
Section 8.2. Advancement of Expenses. The Corporation shall, to the fullest extent not prohibited by the DGCL or other applicable law, advance all expenses (including attorneys' fees and disbursements) incurred by an Indemnified Person in defending any Proceeding prior to the final disposition of such Proceeding (an "Expense Advancement"). An Expense Advancement shall be made upon receipt of an undertaking by or on behalf of such Indemnified Person 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 or by settlement that such Indemnified Person is not entitled to be indemnified for such expenses under this Article VIII or otherwise. The Corporation may, in its discretion, advance expenses to any employee or agent of the Corporation to the extent not prohibited by the DGCL or other applicable law. Such Expense Advancement shall be made without regard to the Indemnified Person's ability to repay such expenses and without regard to the Indemnified Person's ultimate entitlement to indemnification under this Article VIII or otherwise. The undertaking required by this Section 8.2 shall be an unlimited general obligation of the Indemnified Person but need not be secured and shall be accepted without reference to the financial ability of the Indemnified Person to make repayment.
Section 8.3. Non-Exclusivity of Rights. The rights to indemnification and Expense Advancement conferred in this Article VIII shall not be exclusive of any other right which any Indemnified Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws, any agreement (including, without limitation, any indemnification agreement entered into by the Corporation with any director or officer), any vote of stockholders or disinterested directors, any provision of law, or otherwise. The Corporation is authorized to enter into individual indemnification agreements with any director, officer, employee, or agent of the Corporation, and such agreements may provide rights in addition to, or different from, the rights provided by this Article VIII.
Section 8.4. 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 is or was serving at the request of the Corporation as a director, officer, employee, partner, trustee, or agent of a Covered Entity, 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 or the obligation to indemnify such person against such liability under the provisions of this Article VIII or under the DGCL. The Corporation may create a trust fund, grant a security interest in the Corporation's assets, or use other means (including, without limitation, a letter of credit) to ensure the payment of such sums as may become necessary to effectuate the provisions of this Article VIII.
Section 8.5. Survival. The indemnification and Expense Advancement provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to any person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, administrators, and other legal representatives of such person. No amendment, alteration, repeal, or adoption of any provision of this Certificate of Incorporation or the Bylaws inconsistent with this Article VIII shall adversely affect any right or protection of any Indemnified Person existing at the time of such amendment, alteration, repeal, or adoption with respect to acts or omissions occurring prior to such amendment, alteration, repeal, or adoption. The rights conferred by this Article VIII shall be deemed to be contract rights, and shall be enforceable by any Indemnified Person as third-party beneficiaries of this Certificate of Incorporation.
ARTICLE IX
STOCKHOLDER ACTION
Section 9.1. 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 or by electronic transmission, setting forth the action so taken, are signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of stock entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing or by electronic transmission and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation in accordance with the DGCL.
For the avoidance of doubt, this Section 9.1 replaces in its entirety the prior provision of the Corporation's certificate of incorporation that prohibited stockholder action by written consent in lieu of a meeting, which restriction was appropriate for the Corporation as a publicly traded company but is no longer necessary or desirable given that the Corporation is now a wholly owned subsidiary of Solara Digital Infrastructure Fund VI LP following the closing of the Merger, the delisting of the Corporation's shares from the Nasdaq Global Select Market (effective July 10, 2024), and the deregistration of the Corporation's common stock under the Securities Exchange Act of 1934, as amended, by means of the Form 15 filed with the Securities and Exchange Commission on July 30, 2024.
Section 9.2. Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board (if any), the President, or by the holders of not less than a majority of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting, and shall be held at such place, on such date, and at such time as shall be fixed by the Board of Directors or the person calling the meeting, subject to the provisions of the Bylaws. Business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of the meeting.
ARTICLE X
CORPORATE OPPORTUNITIES
To the fullest extent permitted by Section 122(17) of the DGCL (or any successor provision thereto) and except as may be otherwise expressly agreed in writing between the Corporation and any such person, the Corporation, on behalf of itself and its subsidiaries, hereby renounces and waives any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, any business opportunity that may from time to time be presented to or come to the attention of any of the following persons (collectively, the "Exempted Persons"):
(a) Solara Digital Infrastructure Fund VI LP, the sole stockholder of the Corporation;
(b) any affiliate of Solara Digital Infrastructure Fund VI LP, including, without limitation, Solara Digital Infrastructure LP, Solara Digital GP LLC, Solara Fund VI GP LLC, Solara Digital Co-Invest VI-A LP, and any successor entities thereto;
(c) any partner, member, director, officer, manager, employee, agent, stockholder, or other equity holder of any of the foregoing entities; and
(d) any director or officer of the Corporation who is also a partner, member, director, officer, manager, employee, or agent of any of the foregoing entities (in each case, solely in such person's capacity as a partner, member, director, officer, manager, employee, or agent of such entity and not in such person's capacity as a director or officer of the Corporation).
The Corporation acknowledges and agrees that the Exempted Persons engage, and may in the future engage, directly or indirectly, in investing, management, advisory, development, operating, and other business activities of every type and description, and that the Exempted Persons may have, and may in the future have, interests (whether as equity holders, creditors, partners, members, managers, directors, officers, employees, agents, advisors, or otherwise) in other entities, including, without limitation, entities that compete with, or that engage in one or more lines of business similar or related to those engaged in by, the Corporation or any of its subsidiaries. Neither the Corporation nor any stockholder of the Corporation shall have any right in or to any business opportunity, or the income or profits derived therefrom, that may from time to time be presented to or come to the attention of any Exempted Person, even if such opportunity is one that the Corporation or any of its subsidiaries might reasonably have been expected to pursue or that may be of interest to the Corporation or any of its subsidiaries, and each Exempted Person shall have the right to pursue such business opportunity for such Exempted Person's own account or on behalf of another person, and no Exempted Person shall have any duty or obligation to refrain from (i) engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries, (ii) investing or owning any interest in, or developing a business relationship with, any person that is engaged in any business activities that compete with those of the Corporation or any of its subsidiaries, or (iii) doing business with any client or customer of the Corporation or any of its subsidiaries.
To the fullest extent permitted by applicable law, no Exempted Person shall be liable to the Corporation or any of its subsidiaries or any stockholder of the Corporation for breach of any fiduciary or other duty by reason of any such activities or any of the foregoing. Any person purchasing or otherwise acquiring, or being the holder of, any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article X.
Notwithstanding anything in this Article X to the contrary, the renunciation and waiver set forth herein shall not apply to any business opportunity that is expressly presented or offered to any person who is a director or officer of the Corporation solely in such person's capacity as a director or officer of the Corporation (and not in any other capacity as an Exempted Person), and the Corporation does not renounce its interest in any such opportunity.
ARTICLE XI
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 any other provision of this Certificate of Incorporation or the Bylaws (and notwithstanding the fact that a lesser percentage or separate class vote may be specified by law, this Certificate of Incorporation, or the Bylaws), the affirmative vote of the holders of a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, change, or repeal any provision of this Certificate of Incorporation; provided, however, that this requirement shall be in addition to, and not in lieu of, any separate class or series vote required by the terms of any series of Preferred Stock established pursuant to Article IV hereof or by the DGCL.
ARTICLE XII
EXCLUSIVE FORUM
Section 12.1. Delaware Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, any other state court of the State of Delaware, or, if no state court of the State of Delaware has subject matter jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for:
(a) any derivative action or proceeding brought on behalf of the Corporation;
(b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders;
(c) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate of Incorporation, or the Bylaws (as either may be amended from time to time); or
(d) any action asserting a claim governed by the internal affairs doctrine of the State of Delaware.
Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 12.1. This Section 12.1 shall not apply to suits brought to enforce any duty or liability created by the Securities Exchange Act of 1934, as amended, or any rule or regulation promulgated thereunder, or any other claim for which the federal courts of the United States have exclusive jurisdiction.
Section 12.2. Federal Forum for Securities Act Claims. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended (the "Securities Act"). Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Section 12.2. For the avoidance of doubt, this Section 12.2 is intended to benefit the Corporation and shall not be deemed to be applicable to, or to create any rights in, any person other than the Corporation and its stockholders; provided, further, that given that the Corporation is no longer publicly traded (its shares of common stock having been delisted from the Nasdaq Global Select Market effective July 10, 2024, and its reporting obligations under the Securities Exchange Act of 1934, as amended, having been terminated following the filing of a Form 15 with the Securities and Exchange Commission on July 30, 2024), this Section 12.2 is included as a protective measure and is expected to have limited practical application during the period in which the Corporation remains a private, wholly owned subsidiary.
Section 12.3. Personal Jurisdiction. If any action the subject matter of which is within the scope of Section 12.1 or Section 12.2 above is filed in a court other than a court located within the State of Delaware or, in the case of Section 12.2, a federal district court of the United States (a "Foreign Action"), the claiming party shall be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 12.1 or Section 12.2, as applicable, and (b) having service of process made upon such claiming party in any such enforcement action by service upon such claiming party's counsel in the Foreign Action as agent for such claiming party.
ARTICLE XIII
SEVERABILITY
If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal, or unenforceable as applied to any person, entity, or circumstance for any reason whatsoever, then, to the fullest extent permitted by law: (a) the validity, legality, and enforceability of such provision or provisions as applied to any other person, entity, or circumstance, and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any section or article 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; and (b) to the fullest extent possible, the provisions of this Certificate of Incorporation (including, without limitation, each portion of any section or article of this Certificate of Incorporation containing any such provision held to be invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal, or unenforceable.
ARTICLE XIV
INCORPORATOR
The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware by the incorporator named therein in connection with the formation of the Corporation. This Amended and Restated Certificate of Incorporation was duly adopted in accordance with Sections 242, 245, and 251 of the DGCL, in connection with the merger of Stratos Merger Sub Inc., a Delaware corporation, with and into the Corporation, with the Corporation continuing as the surviving corporation, and is being filed simultaneously with the Certificate of Merger. No vote of the stockholders of the Corporation was required for the adoption of this Amended and Restated Certificate of Incorporation other than the approval of the Merger by the holders of a majority of the outstanding shares of common stock of the Corporation, which approval was obtained at the Special Meeting of Stockholders of the Corporation held on June 27, 2024, and the adoption by the sole stockholder of Stratos Merger Sub Inc.
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[Signature Page to Amended and Restated Certificate of Incorporation of Cloudium Technologies plc]
IN WITNESS WHEREOF, the undersigned, being a duly authorized officer of Cloudium Technologies plc (as the surviving corporation in the Merger), has caused this Amended and Restated Certificate of Incorporation to be executed as of July 9, 2024.
CLOUDIUM TECHNOLOGIES PLC (as the surviving corporation)
By: ________
Name: Sarah E. Caldwell
Title: Executive Vice President, General Counsel and Secretary
Date: ________