1038-00001 · Cascade Retail Holdings · Pleadings & Court Filings

joint-defense-agreement.docx DOCUMENT Antitrust

31 / 35 ← → ✕

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / WORK PRODUCT PROTECTED

JOINT DEFENSE AND COMMON INTEREST AGREEMENT

Confidential — Attorney-Client Privileged / Work Product Protected

Effective Date: July 1, 2025

This Joint Defense and Common Interest Agreement (this "Agreement") is entered into as of July 1, 2025, by and between Cascade Retail Holdings Inc., a Delaware corporation ("Cascade" or "CRH"), and Pinnacle Market Group Inc., a Delaware corporation ("Pinnacle" or "PMG"), in connection with their common legal interests arising out of the proceedings described herein, including the action styled Federal Trade Commission v. Cascade Retail Holdings Inc. et al., Case No. 2:25-cv-01087-RAJ, pending in the United States District Court for the Western District of Washington, Seattle Division, and the related Federal Trade Commission Administrative Proceeding, Docket No. 9438.

RECITALS

A. Identification of the Parties.

Cascade Retail Holdings Inc. ("Cascade" or "CRH") is a corporation duly organized and existing under the laws of the State of Delaware, with its principal place of business at 2200 Westlake Avenue North, Suite 3400, Seattle, Washington 98109. In connection with the Proceedings (as defined below), Cascade is represented by Calderwood & Harkness LLP, a law firm with offices at 1401 K Street NW, Suite 1200, Washington, D.C. 20005. The attorneys at Calderwood & Harkness LLP primarily responsible for Cascade's representation in the Proceedings are Howard Bellamy, Responsible Partner; Elaine Forsythe, Billing Partner; Elliot Nguyen, Lead Associate; and Aaron Liu, Working Associate.

Pinnacle Market Group Inc. ("Pinnacle" or "PMG") is a corporation duly organized and existing under the laws of the State of Delaware, with its principal place of business at 500 East 6th Street, Suite 800, Austin, Texas 78701. In connection with the Proceedings, Pinnacle is represented by Whitfield, Greer & Tanaka LLP, a law firm with offices at 100 Congress Avenue, Suite 2200, Austin, Texas 78701. The attorneys at Whitfield, Greer & Tanaka LLP primarily responsible for Pinnacle's representation in the Proceedings are Diana Whitfield, Lead Partner, and Kenneth Oshiro, Senior Associate.

B. Background.

WHEREAS, on March 14, 2025, Cascade and Pinnacle executed an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Cascade will acquire one hundred percent (100%) of the outstanding common stock of Pinnacle for aggregate merger consideration of approximately Four Billion Seven Hundred Million Dollars ($4,700,000,000), representing Twenty-Six Dollars and Eighty-Five Cents ($26.85) per share of Pinnacle common stock, through a reverse triangular merger structure in which CRH Merger Sub Inc., a wholly owned subsidiary of Cascade formed for purposes of the transaction, will merge with and into Pinnacle, with Pinnacle surviving the merger as a wholly owned subsidiary of Cascade (the "Transaction");

WHEREAS, on April 2, 2025, Cascade and Pinnacle made filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. § 18a (the "HSR Act"), in connection with the Transaction (HSR Filing Transaction No. HSR-20250402-0347), and on May 7, 2025, the Federal Trade Commission (the "FTC" or the "Commission") issued a Second Request for Additional Information and Documentary Material (File No. 251-0089) pursuant to Section 7A(e) of the Clayton Act, 15 U.S.C. § 18a(e), and 16 C.F.R. § 803.20, with which the Parties substantially complied on June 10, 2025;

WHEREAS, on June 20, 2025, the FTC issued an Administrative Complaint (Docket No. 9438) challenging the proposed Transaction under Section 7 of the Clayton Act, 15 U.S.C. § 18, and Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, alleging that the proposed merger, if consummated, would substantially lessen competition in violation of federal antitrust law;

WHEREAS, on June 23, 2025, the FTC filed a Complaint for Temporary Restraining Order and Preliminary Injunction in the United States District Court for the Western District of Washington, Seattle Division, Case No. 2:25-cv-01087-RAJ (assigned to the Honorable Richard A. Johannsen), seeking a preliminary injunction under Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. § 53(b), to enjoin the consummation of the Transaction pending the resolution of the FTC's administrative proceeding;

WHEREAS, the FTC's Complaint names both Cascade and Pinnacle as defendants and alleges, inter alia, that the proposed merger would substantially lessen competition in the alleged relevant market of "online marketplace platform services for third-party sellers in the United States," a market definition that both Parties believe to be inappropriately narrow and unsupported by economic evidence;

WHEREAS, the FTC Commission authorized the filing of the Administrative Complaint and the federal court Complaint by a vote of three to two (3–2), with Commissioner Rachel Langford and Commissioner Thomas McBride dissenting;

WHEREAS, the Court has scheduled an evidentiary hearing on the FTC's motion for a preliminary injunction for September 8, 2025, with the briefing schedule requiring the Parties' opposition to be filed by August 11, 2025;

WHEREAS, the Parties share common legal interests in the defense of both the district court action and the FTC administrative proceeding (collectively, the "Proceedings"), and believe that the joint, coordinated defense of the Proceedings will serve the interests of both Parties, promote the efficient administration of justice, and facilitate the sharing of relevant privileged and work-product-protected information necessary for an effective defense;

WHEREAS, the Parties wish to share certain privileged communications, attorney work product, and other confidential materials in furtherance of their common interest in successfully defending against the FTC's challenge to the Transaction, without waiving any privilege, protection, or immunity that would otherwise attach to such materials under applicable law;

WHEREAS, each Party is separately represented by independent legal counsel who have advised their respective clients of the nature, terms, implications, and potential risks of entering into this Agreement; and

WHEREAS, the Independent Online Sellers Alliance ("IOSA"), a trade association representing certain third-party sellers, represented by Galloway & Peck LLP (Martina Galloway, Lead Partner), has moved to intervene in the district court proceeding as an intervenor-plaintiff in support of the FTC's position, and the Parties intend to jointly oppose that motion to intervene.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties and their Counsel agree as follows:

SECTION 1: DEFINITIONS

As used in this Agreement, the following terms shall have the meanings set forth below:

1.1 "Agreement" means this Joint Defense and Common Interest Agreement, including any amendments or modifications hereto made in accordance with Section 14.3.

1.2 "Cascade Counsel" means Calderwood & Harkness LLP, including Howard Bellamy, Responsible Partner; Elaine Forsythe, Billing Partner; Elliot Nguyen, Lead Associate; and Aaron Liu, Working Associate, as well as any other attorneys, paralegals, litigation support professionals, legal assistants, or staff of Calderwood & Harkness LLP who are assigned to or working on the Proceedings at any time during the term of this Agreement. References to Cascade Counsel shall be deemed to include all such persons acting in their capacity as legal representatives of Cascade. Calderwood & Harkness LLP's internal matter number for the Proceedings is 1038-00001.

1.3 "Pinnacle Counsel" means Whitfield, Greer & Tanaka LLP, including Diana Whitfield, Lead Partner, and Kenneth Oshiro, Senior Associate, as well as any other attorneys, paralegals, litigation support professionals, legal assistants, or staff of Whitfield, Greer & Tanaka LLP who are assigned to or working on the Proceedings at any time during the term of this Agreement. References to Pinnacle Counsel shall be deemed to include all such persons acting in their capacity as legal representatives of Pinnacle.

1.4 "Counsel" means, collectively, Cascade Counsel and Pinnacle Counsel, and individually, either of them.

1.5 "Common Interest Materials" means all privileged communications, documents, analyses, memoranda, attorney work product (including both opinion work product and fact work product), expert materials (including draft and final expert reports, expert communications, underlying data and analyses), factual analyses, legal research, mental impressions, conclusions, opinions, legal theories, litigation strategy discussions, and any other information or materials of any kind or nature, whether in written, electronic, oral, or any other form, that are shared between or among the Parties and their Counsel pursuant to this Agreement in furtherance of their common interest in defending the Proceedings. The term "Common Interest Materials" shall also include any notes, summaries, abstracts, compilations, or derivative works created by a receiving Party or its Counsel that are based upon, incorporate, or reflect the substance of materials shared by the other Party or its Counsel pursuant to this Agreement.

1.6 "Parties" means Cascade Retail Holdings Inc. and Pinnacle Market Group Inc., and their respective officers, directors, employees, agents, and Counsel, collectively. Each of Cascade and Pinnacle is individually referred to as a "Party."

1.7 "Proceedings" means, collectively:

(a) The district court action styled Federal Trade Commission v. Cascade Retail Holdings Inc. et al., Case No. 2:25-cv-01087-RAJ, pending in the United States District Court for the Western District of Washington, Seattle Division, before the Honorable Richard A. Johannsen;

(b) The FTC administrative proceeding, Docket No. 9438, pending before the Federal Trade Commission; and

(c) Any and all appeals, remands, related proceedings, ancillary matters, or enforcement actions arising from or relating to the foregoing proceedings, including any proceedings in the United States Courts of Appeals or the Supreme Court of the United States.

1.8 "Authorized Recipients" means the following persons and entities, each of whom is authorized to receive and review Common Interest Materials subject to the confidentiality obligations set forth in this Agreement:

(a) Cascade Counsel, as defined in Section 1.2;

(b) Pinnacle Counsel, as defined in Section 1.3;

(c) The Parties' in-house legal personnel, including Jerome Weston, General Counsel and Corporate Secretary of Cascade Retail Holdings Inc., and Anita Suresh, General Counsel of Pinnacle Market Group Inc., and such in-house attorneys and legal staff as are designated in writing by Jerome Weston or Anita Suresh, respectively, as requiring access to Common Interest Materials in connection with the Proceedings;

(d) Any testifying or consulting experts retained by Counsel in connection with the Proceedings, including Brindoval Analytics LLC, and specifically Dr. Priya Ramanathan, Ph.D. (Economics), Managing Director, and Dr. Lucas Engström, Ph.D. (Industrial Organization), Senior Economist, both retained by Cascade Counsel as consulting and testifying economic experts in connection with the Proceedings; and

(e) Such other persons as the Parties may agree in writing to designate as Authorized Recipients from time to time.

For the avoidance of doubt, any expert designated as an Authorized Recipient shall be required to execute an undertaking acknowledging the confidential and privileged nature of Common Interest Materials before receiving access to such materials.

1.9 "Transaction Counsel" means Harmon Ridgeway & Strauss LLP, and specifically Phillip Strauss, Lead M&A Partner, and Monica Chen-Barrios, Senior Associate, who serve as counsel to Cascade on the underlying Merger Agreement and the Transaction. Transaction Counsel is included within the scope of this Agreement solely with respect to transaction-related materials that are relevant to the defense of the Proceedings, as designated and approved in writing by Cascade Counsel. Transaction Counsel's inclusion in this Agreement does not extend to any other matters, and Transaction Counsel's access to Common Interest Materials shall be limited to those materials that Cascade Counsel determines, in its reasonable professional judgment, are necessary for Transaction Counsel to provide relevant support to the defense of the Proceedings.

SECTION 2: PURPOSE AND COMMON INTEREST

2.1 The purpose of this Agreement is to facilitate the exchange of Common Interest Materials between the Parties and their Counsel in connection with their shared and common legal interest in defending the Proceedings. The Parties and their Counsel have determined that an effective, coordinated defense of the FTC's challenge to the Transaction requires the sharing of privileged and work-product-protected information, and that such sharing is necessary and appropriate in light of the common legal interests of the Parties. This Agreement is intended to provide a framework for such sharing while preserving all applicable privileges, protections, and immunities. The common interest encompasses the defense of both the FTC's motion for a preliminary injunction in the district court action and the FTC's administrative proceeding, as well as any related litigation, appellate proceedings, or ancillary matters.

2.2 The Parties recognize and acknowledge that they share a common legal interest in the following matters, among others:

(a) Demonstrating that the proposed Transaction does not violate Section 7 of the Clayton Act, 15 U.S.C. § 18, or Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, and that the Transaction will not substantially lessen competition in any properly defined relevant market;

(b) Challenging the FTC's proposed relevant market definition of "online marketplace platform services for third-party sellers in the United States" as artificially narrow, unsupported by economic evidence, and inconsistent with the commercial realities of the broader e-commerce industry;

(c) Establishing that the Transaction will generate substantial procompetitive efficiencies and consumer benefits, including lower prices, improved services for third-party sellers, enhanced logistics and fulfillment capabilities, and accelerated technological innovation;

(d) Preserving the viability of the Merger Agreement dated March 14, 2025, between Cascade and Pinnacle, including the Transaction's outside date of March 14, 2026 (which is extendable to June 14, 2026 if antitrust regulatory clearance is the sole remaining unsatisfied condition precedent to closing); and

(e) Defeating the FTC's motion for a preliminary injunction and securing a ruling from the Court that the FTC has not met its burden under Section 13(b) of the FTC Act of demonstrating a likelihood of success on the merits of its antitrust challenge.

2.3 This Agreement is not intended to create, and shall not be construed to create, an attorney-client relationship between Cascade Counsel and Pinnacle, or between Pinnacle Counsel and Cascade. Each Party is represented solely by its own Counsel as identified herein. Nothing in this Agreement shall impose upon either Party's Counsel any duty, obligation, or responsibility to the other Party, whether fiduciary or otherwise, beyond the specific obligations set forth in this Agreement.

2.4 Nothing in this Agreement shall require either Party to share any information, document, communication, or material with the other Party or its Counsel. The decision to share any particular Common Interest Material shall remain in the sole and absolute discretion of the sharing Party and its Counsel, and no inference of any kind shall be drawn from a Party's decision not to share any particular material. Each Party and its Counsel retain full discretion regarding the scope, timing, and manner of any disclosures of Common Interest Materials hereunder.

SECTION 3: SCOPE OF COMMON INTEREST

3.1 The common interest encompassed by this Agreement includes all matters relevant to the defense of the Proceedings, including but not limited to the following:

(a) Market Definition Analysis. The development, analysis, and presentation of arguments and evidence that the relevant antitrust market is properly defined as "all e-commerce retail" — or, alternatively, as a broader market than the one alleged by the FTC — rather than the FTC's narrowly defined "online marketplace platform services for third-party sellers in the United States." This includes, without limitation, economic analysis of the total United States e-commerce gross merchandise volume ("GMV"), which was approximately Seven Hundred Fifty-Seven Billion Dollars ($757,000,000,000) in 2024, evidence of competitive overlap and substitution between marketplace platforms and direct-to-consumer e-commerce channels, cross-elasticity of demand analyses, and evidence regarding the competitive constraints imposed by brick-and-mortar retail on online marketplace services.

(b) Competitive Effects Analysis. Analysis of the competitive effects of the proposed Transaction, including analysis of the competitive landscape involving Vertex Commerce Inc. (which holds an estimated 35.7% share of marketplace GMV in the United States), Nomad Shops LLC (which holds an estimated 14.6% share of marketplace GMV), Brevity Social Commerce Inc., Trove Marketplace Inc., and other current and potential competitors and entrants. This includes analysis of barriers to entry and expansion, the ease of multi-homing by third-party sellers across platforms, and the countervailing buyer power of large sellers.

(c) Efficiencies Defense. Documentation, analysis, and presentation of projected merger-specific efficiencies of approximately Three Hundred Forty Million Dollars ($340,000,000) annually by Year 3 post-closing. These projected efficiencies comprise approximately One Hundred Ninety-Five Million Dollars ($195,000,000) in logistics and fulfillment cost savings (arising from the consolidation of Cascade's and Pinnacle's fulfillment center networks, elimination of duplicative warehousing capacity, and route optimization) and approximately One Hundred Forty-Five Million Dollars ($145,000,000) in technology and platform synergies (arising from the integration of Pinnacle's seller analytics tools with Cascade's proprietary recommendation engine and advertising technology stack, and the rationalization of duplicative technology infrastructure). This includes the preparation and support of expert testimony regarding the verification, merger-specificity, and pass-through rate of claimed efficiencies.

(d) Pinnacle's Competitive Trajectory. Evidence and analysis concerning Pinnacle's competitive trajectory and current competitive position, including evidence of Pinnacle's GMV growth deceleration (from approximately 28% year-over-year growth in 2022 to approximately 9% year-over-year growth in 2024), rising seller churn rates (from approximately 12% in 2022 to approximately 21% in 2024), declining seller net promoter scores, and increasing competitive pressure from Vertex Commerce Inc. and emerging social commerce platforms. This includes analysis relevant to any "weakened competitor" or "flailing firm" arguments that may be advanced in connection with the defense.

(e) Response to HHI Analysis. Analysis and rebuttal of the FTC's concentration analysis based on the Herfindahl-Hirschman Index ("HHI"), which the FTC has calculated using its proposed relevant market of "online marketplace platform services for third-party sellers in the United States," yielding a pre-merger HHI of approximately 2,361, a post-merger HHI of approximately 2,856, and a delta (change in HHI) of approximately 495. This includes development of alternative HHI calculations using broader and more economically appropriate market definitions, as well as arguments regarding the limitations of market concentration statistics as a predictor of competitive harm in dynamic, innovation-driven digital platform markets.

(f) discovery Strategy and Coordination. Coordination of all aspects of the discovery process in the Proceedings, including document production and review, interrogatory responses, deposition preparation and strategy, third-party subpoena strategy, responses to the FTC's Civil Investigative Demands, and compliance with any Protective Order entered by the Court.

(g) Expert Strategy and Coordination. Coordination and preparation of expert testimony, including the affirmative and rebuttal expert reports of economic and industry experts, preparation for expert depositions, review of the FTC's expert materials, and development of cross-examination strategies for the FTC's experts.

(h) Preliminary Injunction Hearing Strategy and Preparation. Preparation for the evidentiary hearing on the FTC's motion for a preliminary injunction, currently scheduled for September 8, 2025, before the Honorable Richard A. Johannsen, including coordination on the presentation of evidence, witness preparation, demonstrative exhibits, and opening and closing arguments.

(i) Opposition to IOSA Intervention. Joint opposition to the motion to intervene filed by the Independent Online Sellers Alliance ("IOSA"), represented by Galloway & Peck LLP (Martina Galloway, Lead Partner), including development of arguments that IOSA's interests are adequately represented by the FTC, that intervention would unduly delay the proceedings, and that IOSA lacks standing or a sufficient interest to warrant intervention.

(j) Briefing and Oral Argument Strategy. Coordination on all briefing and oral argument in the Proceedings, including the Parties' opposition to the FTC's motion for a preliminary injunction, responsive briefing in the administrative proceeding, motions practice, and any appellate proceedings.

3.2 The common interest established by this Agreement expressly does not extend to any of the following matters:

(a) Any dispute between Cascade and Pinnacle arising under or in connection with the Merger Agreement, including any dispute regarding the interpretation, performance, or enforcement of the Merger Agreement's terms, representations, warranties, covenants, or conditions;

(b) Any proceeding or dispute related to the enforcement, payment, or calculation of the reverse termination fee of Two Hundred Eighty-Two Million Dollars ($282,000,000) payable by Cascade under certain circumstances, or the company termination fee of One Hundred Sixty-Four Million Five Hundred Thousand Dollars ($164,500,000) payable by Pinnacle under certain circumstances, as set forth in the Merger Agreement;

(c) Any proceeding, dispute, or matter in which the interests of Cascade and Pinnacle are adverse to each other, whether arising out of the Merger Agreement, the Transaction, or otherwise; and

(d) Any unrelated matters, including any litigation, regulatory inquiry, investigation, or proceeding not arising out of or relating to the Proceedings as defined in Section 1.7 of this Agreement.

In the event that either Party's Counsel determines that a matter falls outside the scope of the common interest as defined in this Section 3, such Counsel shall promptly notify the other Party's Counsel, and no Common Interest Materials relating to such matter shall be shared pursuant to this Agreement.

SECTION 4: PRESERVATION OF PRIVILEGES AND PROTECTIONS

4.1 All Common Interest Materials shared under this Agreement are and shall remain protected by the attorney-client privilege, the work-product doctrine (as codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure and applicable case law), and/or any other applicable privilege, protection, or immunity under federal or state law. The Parties intend that the sharing of Common Interest Materials pursuant to this Agreement shall be fully protected under the common interest doctrine (also referred to as the "joint defense privilege" or the "allied litigant doctrine") as recognized under federal law, including but not limited to the principles set forth in United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979); In re Grand Jury Subpoenas, 902 F.2d 244 (4th Cir. 1990); Hunton & Williams v. U.S. Dep't of Justice, 590 F.3d 272 (4th Cir. 2010); and In re Santa Fe International Corp., 272 F.3d 705 (5th Cir. 2001).

4.2 The sharing of Common Interest Materials pursuant to this Agreement shall not constitute a waiver of any privilege, protection, or immunity, including without limitation the attorney-client privilege, the work-product protection (including both opinion work product and fact work product), the joint defense privilege, or any other applicable privilege or protection under federal or state law. The Parties intend that any such sharing be deemed made in furtherance of their common legal interest and in confidence, and that such sharing shall be treated as having been made within a protected communication for purposes of all applicable privilege doctrines. The Parties further intend that this Agreement satisfies the requirements for the common interest doctrine under all applicable jurisdictions.

4.3 Each Party agrees that it will not assert, claim, or argue — whether in the Proceedings or in any other proceeding, forum, or context — that the sharing of Common Interest Materials under this Agreement constitutes a waiver, in whole or in part, of any privilege, protection, or immunity that would otherwise attach to such materials. Each Party further agrees that it will not assist or encourage any third party in making any such assertion, claim, or argument.

4.4 To the extent any Common Interest Material reflects the mental impressions, conclusions, opinions, or legal theories of Counsel (i.e., opinion work product as distinguished from fact work product under Upjohn Co. v. United States, 449 U.S. 383 (1981), and Hickman v. Taylor, 329 U.S. 495 (1947)), such material shall receive the highest degree of protection available under applicable law. Opinion work product shared under this Agreement shall be treated as absolutely privileged and shall not be disclosed under any circumstances except as expressly permitted by this Agreement, by court order, or by the written consent of the Disclosing Party.

4.5 This Agreement shall be construed to provide the fullest privilege and work-product protections available under federal law and the law of any relevant jurisdiction, including the law of the State of Washington, the law of the State of Delaware, and the law of the State of Texas. In the event of any conflict between the privilege laws of different jurisdictions, the Parties intend that the law providing the broadest protection for Common Interest Materials shall apply.

SECTION 5: CONFIDENTIALITY OBLIGATIONS

5.1 All Common Interest Materials shall be treated as strictly confidential and shall not be disclosed, distributed, disseminated, or made available to any person or entity other than Authorized Recipients without the prior written consent of the Party that shared the material (the "Disclosing Party"). This obligation of confidentiality applies regardless of the form in which Common Interest Materials are shared, including written documents, electronic files, oral communications, demonstrative exhibits, and any other medium.

5.2 Each Party shall take reasonable steps to ensure that its officers, directors, employees, agents, experts, and Counsel who receive Common Interest Materials are aware of and comply with the confidentiality obligations set forth in this Agreement. Such steps shall include, at a minimum, informing each person who receives Common Interest Materials of the confidential and privileged nature of such materials and of the restrictions on disclosure and use set forth in this Agreement. Each Party shall be responsible for any breach of this Agreement by its officers, directors, employees, agents, experts, or Counsel.

5.3 Common Interest Materials shall not be disclosed to any of the following persons or entities without the express prior written authorization of the Disclosing Party:

(a) Financial advisors, including Mercer Hollis & Co. (financial advisor to Cascade) and Ridgeline Capital Partners (financial advisor to Pinnacle);

(b) Lenders, including Whitmore National Bank, N.A., and any other lenders providing committed financing for the Transaction;

(c) Auditors, including Aldrich & Warwick CPAs LLP (independent auditor of Cascade) and Kessler Fong Accounting Group LLP (independent auditor of Pinnacle);

(d) Communications advisors, including Pendleton Crier & Associates and any other public relations, investor relations, or media consultants retained by either Party;

(e) Proxy solicitors, including Arundel Proxy Advisors LLC; and

(f) Any other person or entity not designated as an Authorized Recipient under Section 1.8 of this Agreement.

5.4 In the event that any Party, its Counsel, or any Authorized Recipient receives a subpoena, court order, Civil Investigative Demand, discovery request, or other form of compulsory process seeking the disclosure of Common Interest Materials, the receiving Party shall:

(a) Promptly notify the Disclosing Party in writing of the existence, terms, and scope of such compulsory process, and in no event later than five (5) business days after receipt thereof (or, if the compulsory process requires compliance in fewer than five (5) business days, as soon as practicable after receipt);

(b) Use commercially reasonable efforts to resist disclosure of Common Interest Materials, including by asserting all applicable privileges, protections, and immunities, and by cooperating with the Disclosing Party in seeking to quash, modify, or limit the scope of such compulsory process;

(c) Not produce, disclose, or otherwise make available any Common Interest Materials in response to such compulsory process without first affording the Disclosing Party a reasonable opportunity (not less than ten (10) business days, or such shorter period as may be required by the applicable deadline) to seek a protective order, motion to quash, or other appropriate relief from the issuing court or tribunal; and

(d) In the event that disclosure is ultimately compelled by a final, non-appealable court order, disclose only such Common Interest Materials as are specifically required by the order, and take all reasonable steps to minimize the scope of any such compelled disclosure, including by requesting that the court permit disclosure under a protective order or under seal.

SECTION 6: PROCEDURES FOR SHARING COMMON INTEREST MATERIALS

6.1 Common Interest Materials shall be shared exclusively between Counsel (i.e., on an attorney-to-attorney basis), unless the Parties agree otherwise in writing. This requirement is intended to ensure that all sharing of Common Interest Materials occurs within the scope of the attorney-client privilege and the work-product doctrine, and to minimize the risk of inadvertent waiver. Counsel may, in their discretion, share Common Interest Materials with other Authorized Recipients as provided in Section 1.8, subject to the confidentiality obligations of this Agreement.

6.2 All written Common Interest Materials shared under this Agreement shall be marked or designated with the following legend, conspicuously placed on the first page of the document or communication:

"COMMON INTEREST MATERIAL — PRIVILEGED AND CONFIDENTIAL — SUBJECT TO JOINT DEFENSE AGREEMENT"

In the case of electronic communications (including e-mail), the legend shall be included in the subject line or the body of the communication. Failure to include the required legend shall not, by itself, constitute a waiver of any privilege or protection, provided that the material was shared in furtherance of the common interest and was intended to be treated as Common Interest Material. In such event, the sharing Party shall promptly designate the material as Common Interest Material upon becoming aware of the omission.

6.3 Counsel shall maintain a log or record of Common Interest Materials shared pursuant to this Agreement. The log shall include, at a minimum, the following information for each item shared: (i) the date of sharing; (ii) a general description of the subject matter of the material shared (without revealing the privileged substance thereof); (iii) the identity of the Counsel sharing the material; and (iv) the identity of the Counsel receiving the material. The log shall be maintained separately by each Party's Counsel and shall itself be treated as Common Interest Material subject to the protections of this Agreement.

6.4 The Parties and their Counsel may share Common Interest Materials in any format, including but not limited to documents, memoranda, correspondence, electronic communications (including e-mail and secure file transfer), oral communications, demonstrative materials, expert analyses, data compilations, and any other medium, provided that the sharing occurs in furtherance of the common interest as described in Sections 2 and 3 of this Agreement.

6.5 Oral communications of Common Interest Materials may be made during in-person meetings, telephone conferences, video conferences (including via secure platforms), or other discussions between or among Counsel and Authorized Recipients. Such oral communications shall be deemed confidential and privileged Common Interest Materials without the need for specific marking or designation. Counsel shall use reasonable efforts to ensure that oral communications of Common Interest Materials occur in settings that minimize the risk of inadvertent disclosure to unauthorized persons.

SECTION 7: COORDINATION OF DEFENSE STRATEGY

7.1 The Parties and their Counsel shall use reasonable efforts to coordinate their defense of the Proceedings in a manner that serves the common interests of both Parties. Such coordination shall include, but not be limited to, the following:

(a) Regular Coordination Meetings and Calls. Cascade Counsel and Pinnacle Counsel shall hold regular coordination meetings and calls, with the proposed frequency being weekly telephone or video conference calls, to discuss the status of the Proceedings, share information relevant to the defense, coordinate strategy, and address any matters of mutual concern. Additional meetings or calls may be scheduled as warranted by developments in the Proceedings. Each Party's Counsel shall designate a primary contact for purposes of coordination (Howard Bellamy or Elliot Nguyen for Cascade Counsel; Diana Whitfield or Kenneth Oshiro for Pinnacle Counsel).

(b) Allocation of Briefing Responsibilities. The Parties agree to the following initial allocation of briefing responsibilities, subject to adjustment by mutual agreement of Counsel as the Proceedings progress:

(i) Cascade Counsel (Calderwood & Harkness LLP) shall take the lead on the development and drafting of arguments and briefing related to market definition and the efficiencies defense, including the preparation of economic evidence and expert materials in support thereof;

(ii) Pinnacle Counsel (Whitfield, Greer & Tanaka LLP) shall take the lead on the development and drafting of arguments and briefing related to Pinnacle-specific competitive trajectory evidence, including Pinnacle's GMV growth deceleration, seller churn data, and competitive positioning, and shall take the lead on the preparation of fact witnesses employed by or affiliated with Pinnacle; and

(iii) Both Counsel shall collaborate on the integration of their respective sections into cohesive, unified briefs and filings, with Cascade Counsel having primary editorial responsibility for final versions of joint filings unless otherwise agreed.

(c) Joint or Coordinated Filing of Pleadings and Briefs. The Parties and their Counsel shall use reasonable efforts to file joint or coordinated pleadings and briefs in the Proceedings, including the opposition to the FTC's motion for a preliminary injunction (due August 11, 2025), joint status reports as required by the Court, pre-hearing briefs in advance of the September 8, 2025 evidentiary hearing, and any other filings that may be made more effective through joint presentation. In the event that separate filings are warranted on any particular issue, Counsel shall consult in advance to ensure consistency of position and to avoid unnecessary duplication.

(d) Coordination on discovery. The Parties shall coordinate all aspects of the discovery process, including the joint service of interrogatories and requests for production to the FTC, coordination of responses to the FTC's discovery requests, coordination of third-party subpoenas (including subpoenas to Vertex Commerce Inc., Nomad Shops LLC, and other third parties whose documents and testimony may be relevant to the defense), and development of a joint deposition strategy for both the depositions of Parties' witnesses and the depositions of FTC witnesses and third-party witnesses.

(e) Coordination on Expert Strategy. The Parties shall coordinate on all aspects of expert strategy, including the preparation and review of the affirmative expert report of Dr. Priya Ramanathan of Brindoval Analytics LLC, which is due to be served on August 18, 2025, and the rebuttal expert report, which is due to be served on August 29, 2025. Coordination shall extend to the review and analysis of the FTC's expert materials, preparation for expert depositions, and the development of cross-examination strategies for the FTC's economic and other experts. Pinnacle Counsel shall have a reasonable opportunity to review and comment on expert reports before they are finalized and served.

(f) Joint Opposition to IOSA Intervention. The Parties shall jointly oppose the motion to intervene filed by the Independent Online Sellers Alliance, coordinating on the drafting and filing of opposition papers and any related briefing, and jointly appearing at any hearing on the motion.

7.2 Notwithstanding the foregoing provisions of this Section 7, each Party retains the absolute and unqualified right to make independent strategic and tactical decisions regarding the Proceedings, including the right to take positions that differ from those of the other Party on any issue arising in the Proceedings. In the event that a Party intends to take a position or pursue a strategy that materially differs from the position or strategy of the other Party, the differing Party shall provide reasonable advance written notice to the other Party's Counsel, and the Parties' Counsel shall meet and confer in good faith to discuss the implications of the differing position before it is adopted. The foregoing notice and consultation requirement shall not, however, limit either Party's ultimate right to take such position as it determines, in the exercise of its own independent judgment and upon the advice of its own Counsel, to be in its best interest.

7.3 Neither Party shall make any filing with the Court or the Commission, take any position in the Proceedings, or make any public statement in connection with the Proceedings that is materially adverse to the interests of the other Party without first providing reasonable advance notice to the other Party's Counsel and affording the other Party a reasonable opportunity to consult regarding the proposed filing, position, or statement. For purposes of this Section 7.3, "reasonable advance notice" means at least five (5) business days prior to the proposed filing, position, or statement, except in circumstances requiring more expedited action, in which case notice shall be provided as soon as practicable.

SECTION 8: NO JOINT REPRESENTATION; INDEPENDENT COUNSEL

8.1 This Agreement does not create, and shall not be construed to create, a joint representation, an agency relationship, a partnership, a joint venture, a fiduciary relationship, or any other legal relationship between the Parties or between their respective Counsel, other than the specific contractual obligations set forth in this Agreement. The Parties are not co-clients of any single law firm, and nothing in this Agreement shall be interpreted to suggest otherwise.

8.2 Each Party is represented independently and exclusively by its own Counsel in connection with the Proceedings:

(a) Cascade Retail Holdings Inc. is represented by Calderwood & Harkness LLP, with Howard Bellamy serving as Responsible Partner; and

(b) Pinnacle Market Group Inc. is represented by Whitfield, Greer & Tanaka LLP, with Diana Whitfield serving as Lead Partner.

Neither Cascade Counsel nor Pinnacle Counsel represents both Parties, and neither Counsel has undertaken or accepted any engagement, retainer, or obligation to represent the other Party.

8.3 Each Party's Counsel owes its duties of loyalty, competence, diligence, and confidentiality solely to its own client and not to the other Party. Nothing in this Agreement shall be construed to create any duty, obligation, or responsibility on the part of either Counsel to the other Party, whether arising under applicable rules of professional conduct, common law, or otherwise.

8.4 In the event of any conflict between the interests of Cascade and Pinnacle, each Party's Counsel shall act in the best interest of its own client, and neither Party's Counsel shall be required to subordinate the interests of its own client to the interests of the other Party or to the objectives of the joint defense.

SECTION 9: LIMITATIONS ON USE OF COMMON INTEREST MATERIALS

9.1 Common Interest Materials received by a Party or its Counsel shall be used solely for purposes of the defense of the Proceedings and for no other purpose whatsoever. This restriction on use applies to all Common Interest Materials regardless of the form in which they were shared or the manner in which they were received.

9.2 No Party shall use Common Interest Materials received from the other Party or its Counsel in any other litigation, proceeding, arbitration, mediation, regulatory inquiry, negotiation, or dispute of any kind. Without limiting the generality of the foregoing, Common Interest Materials shall not be used in:

(a) Any dispute arising under or in connection with the Merger Agreement between Cascade and Pinnacle;

(b) Any proceeding related to the enforcement, calculation, or payment of the reverse termination fee ($282,000,000) or the company termination fee ($164,500,000);

(d) Any other litigation, proceeding, or matter not encompassed by the Proceedings as defined in Section 1.7.

9.3 No Party shall use Common Interest Materials received from the other Party or its Counsel to gain a competitive, business, financial, or strategic advantage over the Disclosing Party, whether in connection with the Transaction, in the marketplace, or otherwise. Each Party acknowledges that Common Interest Materials may contain commercially sensitive information regarding the Disclosing Party's business operations, competitive strategy, financial performance, and future plans, and agrees that such information shall be used solely in furtherance of the common interest in defending the Proceedings.

9.4 Common Interest Materials shall not be disclosed to third parties, including competitors, government agencies (other than as compelled by lawful process or as otherwise required by applicable law), media organizations, industry analysts, the public, or any other person or entity not designated as an Authorized Recipient under this Agreement. In the event that disclosure to a government agency is compelled or required, the provisions of Section 5.4 shall apply.

SECTION 10: WITHDRAWAL

10.1 Either Party may withdraw from this Agreement at any time upon fifteen (15) calendar days' prior written notice to the other Party's Counsel. Notice of withdrawal shall be delivered in accordance with the notice provisions set forth in Section 14.8 of this Agreement. Withdrawal shall become effective upon the expiration of the fifteen (15) calendar day notice period unless the Parties agree otherwise in writing.

10.2 Upon the effective date of withdrawal:

(a) The withdrawing Party and its Counsel shall promptly return to the Disclosing Party, or, at the Disclosing Party's election, certify in writing the destruction of, all Common Interest Materials received from the other Party, including all copies, summaries, abstracts, notes, compilations, and derivative works based upon or incorporating such materials. The withdrawing Party's Counsel shall provide written certification of compliance with this obligation within thirty (30) calendar days of the effective date of withdrawal, signed by a partner of the withdrawing Party's Counsel;

(b) The confidentiality and privilege obligations set forth in this Agreement, including the obligations set forth in Sections 4, 5, and 9, shall survive the withdrawal of any Party and shall continue to bind the withdrawing Party and its Counsel in perpetuity;

(c) The withdrawing Party and its Counsel shall continue to be bound by all obligations of confidentiality, non-use, and privilege with respect to all Common Interest Materials previously received, regardless of the reason for withdrawal, and regardless of whether such materials have been returned or destroyed; and

(d) Neither the withdrawing Party nor any non-withdrawing Party shall use or disclose Common Interest Materials received from the other Party in any manner following withdrawal, except as may be required by court order or applicable law, subject to the procedural protections set forth in Section 5.4.

10.3 The withdrawal of a Party from this Agreement shall not constitute a waiver of any privilege, protection, or immunity with respect to any Common Interest Materials previously shared under this Agreement. The Parties agree that the common interest doctrine continues to protect materials shared during the period in which the Agreement was in effect, notwithstanding the subsequent withdrawal of a Party.

10.4 In the event that the interests of the Parties become materially adverse to each other — including, without limitation, in connection with any dispute under or arising out of the Merger Agreement, any proceeding regarding the enforcement of the reverse termination fee or the company termination fee, or any other matter in which the Parties' interests are directly and materially opposed — this Agreement shall automatically terminate, effective immediately upon the occurrence of such material adversity, subject to the survival provisions of Section 10.2. Each Party's Counsel shall promptly notify the other Party's Counsel upon becoming aware of any circumstance that may give rise to automatic termination under this Section 10.4.

SECTION 11: TERMINATION

11.1 This Agreement shall terminate upon the earliest to occur of the following events:

(a) Written agreement of both Parties (or their respective Counsel) to terminate this Agreement;

(b) Final resolution of all Proceedings to which this Agreement relates, including any and all appeals, remands, and ancillary proceedings, such that no further proceedings remain pending or reasonably anticipated;

(c) Termination of the Merger Agreement between Cascade and Pinnacle for any reason, including without limitation upon the expiration of the outside date of March 14, 2026 (as may be extended to June 14, 2026 if antitrust regulatory clearance is the sole remaining unsatisfied condition precedent to closing), upon the exercise of any Party's termination right under the Merger Agreement, or upon the mutual written agreement of Cascade and Pinnacle to abandon the Transaction; and

(d) Automatic termination as provided in Section 10.4 upon the interests of the Parties becoming materially adverse.

11.2 Upon termination of this Agreement for any reason, the obligations of confidentiality, non-use, privilege, and return or destruction of Common Interest Materials set forth in Sections 4, 5, 9, and 10.2 of this Agreement shall survive the termination of this Agreement indefinitely and shall continue to bind both Parties and their respective Counsel, officers, directors, employees, agents, and Authorized Recipients in perpetuity. The survival of these obligations is essential to preserve the integrity of the privileges and protections that this Agreement is designed to safeguard and shall not be limited by any statute of limitations or other temporal restriction.

SECTION 12: NO ADMISSION OF LIABILITY

12.1 Entry into this Agreement by either Party does not constitute, and shall not be construed as, an admission by either Party of any fact, liability, wrongdoing, or violation of any law, statute, regulation, or legal standard, including without limitation any admission that the proposed Transaction would violate Section 7 of the Clayton Act, Section 5 of the FTC Act, or any other provision of antitrust law. Both Parties deny the allegations set forth in the FTC's Administrative Complaint and the FTC's federal court Complaint, and nothing in this Agreement shall be construed to the contrary.

12.2 Neither the existence of this Agreement, nor any of its terms or provisions, nor the fact that the Parties have entered into this Agreement, shall be admissible in any proceeding — including the Proceedings, any other litigation, any arbitration, any regulatory proceeding, or any other forum — as evidence of any wrongdoing, liability, or admission by either Party. In the event that any person or entity seeks to introduce this Agreement or any of its terms into evidence in any proceeding, the Parties shall jointly oppose such introduction to the fullest extent permitted by applicable law and the rules of evidence.

SECTION 13: DISPUTE RESOLUTION

13.1 Any dispute arising under or in connection with this Agreement, including any dispute regarding the interpretation, performance, or enforcement of any provision of this Agreement, shall first be addressed and resolved in good faith by consultation between Counsel. Upon the identification of a dispute, Counsel for the Parties shall meet and confer (in person or by telephone or video conference) within five (5) business days to attempt to resolve the dispute informally and in a manner consistent with the purposes of this Agreement and the common interests of the Parties.

13.2 If Counsel are unable to resolve a dispute through the consultation process described in Section 13.1 within a reasonable period (not to exceed fifteen (15) business days from the initial meet-and-confer), the matter shall be submitted to the court presiding over the Proceedings — that is, the Honorable Richard A. Johannsen, United States District Judge, United States District Court for the Western District of Washington — for in camera resolution. Any such submission shall be made under seal and in a manner designed to preserve the confidentiality and privilege of all Common Interest Materials and related information. The decision of the Court on any such dispute shall be binding on the Parties, subject to applicable appellate rights.

SECTION 14: GENERAL PROVISIONS

14.1 Governing Law. This Agreement shall be governed by and construed in accordance with federal common law governing the attorney-client privilege and the work-product doctrine, including the common interest doctrine as applied in the federal courts. To the extent that state law applies to any issue arising under or in connection with this Agreement, including any issue regarding the scope or application of any privilege or protection, the laws of the State of Washington shall govern, without regard to its conflict-of-laws principles.

14.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings, and agreements, whether oral or written, between the Parties with respect to the joint defense of the Proceedings and the sharing of Common Interest Materials. No prior course of dealing, usage of trade, or oral representation shall be used to modify, supplement, or explain any provision of this Agreement.

14.3 Amendments. This Agreement may be amended, modified, or supplemented only by a written instrument signed by authorized Counsel for both Parties. No oral modification of this Agreement shall be effective. Any amendment shall be attached to and made a part of this Agreement.

14.4 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, officers, directors, employees, agents, and Counsel. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, except that this Agreement shall automatically be binding upon any successor entity resulting from a merger, consolidation, or reorganization of a Party.

14.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile, electronic mail (including PDF), or other electronic transmission shall be deemed to have the same legal effect as execution and delivery of an original ink-signed counterpart.

14.6 No Third-Party Beneficiaries. This Agreement is entered into for the sole benefit of the Parties and their Counsel, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, remedy, or claim of any nature whatsoever under or by reason of this Agreement.

14.7 Severability. If any provision of this Agreement, or the application of any provision to any particular circumstance, is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions of this Agreement shall continue in full force and effect. In the event of any such determination, the Parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and legal objectives of the original provision.

14.8 Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person, when sent by electronic mail (with confirmation of receipt), or when sent by nationally recognized overnight courier service or registered or certified mail (return receipt requested, postage prepaid), addressed as follows:

If to Cascade Counsel:

Howard Bellamy Calderwood & Harkness LLP 1401 K Street NW, Suite 1200 Washington, D.C. 20005

Email: hbellamy@calderwoodharkness.com

With a copy to:

Jerome Weston General Counsel and Corporate Secretary Cascade Retail Holdings Inc. 2200 Westlake Avenue North, Suite 3400 Seattle, WA 98109

Email: jweston@cascaderetail.com

If to Pinnacle Counsel:

Diana Whitfield Whitfield, Greer & Tanaka LLP 100 Congress Avenue, Suite 2200 Austin, TX 78701

Email: dwhitfield@wgtlaw.com

With a copy to:

Anita Suresh General Counsel Pinnacle Market Group Inc. 500 East 6th Street, Suite 800 Austin, TX 78701

RECITALS

SECTION 1: DEFINITIONS

SECTION 2: PURPOSE AND COMMON INTEREST

SECTION 3: SCOPE OF COMMON INTEREST

SECTION 4: PRESERVATION OF PRIVILEGES AND PROTECTIONS

SECTION 5: CONFIDENTIALITY OBLIGATIONS

SECTION 6: PROCEDURES FOR SHARING COMMON INTEREST MATERIALS

SECTION 7: COORDINATION OF DEFENSE STRATEGY

SECTION 9: LIMITATIONS ON USE OF COMMON INTEREST MATERIALS

SECTION 10: WITHDRAWAL

SECTION 11: TERMINATION

SECTION 12: NO ADMISSION OF LIABILITY

SECTION 13: DISPUTE RESOLUTION

SECTION 14: GENERAL PROVISIONS

COUNSEL FOR CASCADE RETAIL HOLDINGS INC.:

CALDERWOOD & HARKNESS LLP

COUNSEL FOR PINNACLE MARKET GROUP INC.:

WHITFIELD, GREER & TANAKA LLP

ACKNOWLEDGED AND AGREED BY THE PARTIES:

CASCADE RETAIL HOLDINGS INC.

PINNACLE MARKET GROUP INC.

Record

Parties

Dates

Amounts