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clawback-non-waiver-agreement.docx DOCUMENT Antitrust

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STIPULATED NON-WAIVER AND CLAWBACK AGREEMENT

FTC File No. 231-0487

In the Matter of Solara Digital Infrastructure Fund IV LP and Pinnacle Cloud Systems, Inc.

Date of Execution: June 9, 2023

PREAMBLE

This Stipulated Non-Waiver and Clawback Agreement (this "Agreement") is entered into as of June 9, 2023, by and between:

(i) Calderwood & Harkness LLP, a law firm with offices at 1900 K Street NW, Suite 800, Washington, DC 20006, acting on behalf of Solara Digital Infrastructure LP, a Delaware limited partnership, Solara Digital Infrastructure GP LLC, a Delaware limited liability company, Solara Digital Infrastructure Fund IV LP, a Delaware limited partnership, PCS Acquisition Corp., a Delaware corporation, and Meridian Workflow Solutions, Inc., a Delaware corporation (collectively, the "Producing Parties"); and

(ii) Staff of the Bureau of Competition, Mergers IV Division, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580 (the "FTC Staff" or "Commission Staff").

This Agreement is entered into in connection with the Second Request for Additional Information and Documentary Material (the "Second Request") issued on May 29, 2023, by the Federal Trade Commission (the "Commission" or "FTC") pursuant to Section 7A of the Clayton Act, 15 U.S.C. § 18a, and 16 C.F.R. § 803.20, in connection with FTC File No. 231-0487.

The Second Request was issued in connection with the proposed acquisition (the "Transaction") of one hundred percent (100%) of the outstanding capital stock of Pinnacle Cloud Systems, Inc., a Delaware corporation ("Pinnacle" or the "Target"), by Solara Digital Infrastructure Fund IV LP, a Delaware limited partnership ("Solara Fund IV"), acting through its wholly owned indirect subsidiary, PCS Acquisition Corp., a Delaware corporation ("Acquisition Sub"), pursuant to that certain Stock Purchase Agreement dated April 14, 2023 (the "SPA"), by and among Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., Pinnacle Cloud Systems, Inc., Thorngate Capital Partners LP, a Delaware limited partnership (in its capacity as Sellers' Representative), and the Sellers named therein. The Transaction has an enterprise value of approximately One Billion Six Hundred Thirty Million Dollars ($1,630,000,000). A filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), was submitted on April 28, 2023, and the applicable filing fee of Four Hundred Fifty Thousand Dollars ($450,000) was paid in connection therewith. The Second Request was issued on May 29, 2023, and is identified as FTC File No. 231-0487.

This Agreement is modeled on, and incorporates the principles of, Federal Rule of Evidence 502(d) ("FRE 502(d)"), adapted for the administrative context of FTC Second Request compliance. Because the present matter is at the agency level and no federal court action is currently pending, no court order is being sought at this time; however, the parties intend that this Agreement shall provide protections functionally equivalent to those afforded by a court order entered pursuant to FRE 502(d). This Agreement also incorporates and is governed by the terms of the FTC Model Stipulated Protective Order entered in connection with FTC File No. 231-0487 (the "Protective Order").

RECITALS

WHEREAS:

A. Second Request Compliance. The Federal Trade Commission issued a Second Request dated May 29, 2023, in connection with FTC File No. 231-0487, containing forty-seven (47) specifications requiring the production of documents and data relating to the proposed Transaction and to the business operations, competitive conditions, and market dynamics relevant to the Commission's review of the Transaction. The Producing Parties are presently engaged in the collection, review, and production of documents and data responsive to the Second Request. In connection with the Second Request compliance effort, the Producing Parties have identified eighteen (18) custodians on the Solara side from whom documents are being collected: twelve (12) custodians from the management and investment team of Solara Digital Infrastructure GP LLC and Solara Digital Infrastructure Fund IV LP, and six (6) custodians from the management of Meridian Workflow Solutions, Inc., a portfolio company of Solara Digital Infrastructure Fund IV LP. Based on preliminary collection and processing, the Producing Parties estimate that approximately 1,240,000 documents will be collected in connection with Second Request compliance, and that approximately 487,000 documents are anticipated for review after de-duplication, date filtering, keyword filtering, and other standard processing and culling measures. The volume and pace of production necessitate protections against inadvertent disclosure of privileged and protected materials.

B. Privilege and Work Product Protections. In the course of compliance with the Second Request, the Producing Parties may inadvertently produce documents or communications that are protected by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law. The Producing Parties intend to conduct their privilege review using a team of contract review attorneys managed by Keymark Document Solutions LLC, located at 7600 Leesburg Pike, Suite 320, Falls Church, Virginia 22043. The contract review team will be supervised by attorneys at Calderwood & Harkness LLP, including Monica Reyes, Lead Associate, and Elliot Nguyen, Working Associate, with overall oversight provided by Tamara J. Westbrook, Of Counsel, Litigation Technology & E-discovery, Calderwood & Harkness LLP. The document review will be conducted using a hosted Relativity environment maintained and administered by Keymark Document Solutions LLC. Despite the implementation of reasonable precautions — including training of contract reviewers, application of privilege search terms and filters, quality control sampling, and supervisor review of privilege designations — the sheer volume of documents under review, the compressed timeline inherent in Second Request compliance, and the use of technology-assisted review ("TAR") and continuous active learning ("CAL") methodologies create a material and unavoidable risk that privileged materials may be inadvertently produced to the Commission Staff.

C. Purpose of Agreement. The parties desire to enter into this Agreement to establish a clear, mutually agreed-upon mechanism for the prompt identification, notification, and return, sequestration, or destruction of inadvertently produced privileged materials, and to ensure that any such inadvertent production does not constitute a waiver of any applicable privilege, immunity, or protection, whether as to the Commission Staff or any third party, in this or any other proceeding. This Agreement is intended to provide protections functionally equivalent to those available under FRE 502(d), adapted for the administrative context of FTC Second Request compliance, and to provide both parties with certainty and efficiency in the handling of privilege issues that may arise during the course of production.

D. FTC Model Protective Order. The parties acknowledge that this Agreement supplements, and is to be read in conjunction with, the FTC Model Stipulated Protective Order governing the confidential treatment of materials produced in connection with FTC File No. 231-0487. The Protective Order governs the treatment of confidential business information and other sensitive materials produced in connection with the Second Request, and the protections set forth in this Agreement are in addition to, and not in limitation of, the protections afforded by the Protective Order.

NOW, THEREFORE, in consideration of the foregoing recitals and 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 agree as follows:

SECTION 1 — DEFINITIONS

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

1.1 "Inadvertent Production." The term "Inadvertent Production" means any production of a document, communication, or information that is protected by the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law, where such production was not intended by the Producing Parties and was not accompanied by a knowing and voluntary decision to waive the applicable privilege or protection. For the avoidance of doubt, a production shall be deemed "inadvertent" for purposes of this Agreement if the Producing Parties did not intend to waive the applicable privilege or protection at the time of production, regardless of the circumstances giving rise to the production, including any failure to identify the document during privilege review.

1.2 "Privileged Material." The term "Privileged Material" means any document, communication, data, or information that is protected from disclosure by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product as described in Hickman v. Taylor, 329 U.S. 495 (1947), and its progeny), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law. The term "Privileged Material" includes, without limitation, communications between the Producing Parties and their attorneys, attorney mental impressions, legal analyses, litigation strategies, and materials prepared in anticipation of litigation or regulatory proceedings.

1.3 "Producing Parties." The term "Producing Parties" means, collectively, Solara Digital Infrastructure LP, Solara Digital Infrastructure GP LLC, Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., and Meridian Workflow Solutions, Inc., and their respective officers, directors, employees, agents, and counsel, including Calderwood & Harkness LLP and any other law firm or attorney representing any of the foregoing entities in connection with the Second Request or the Transaction.

1.4 "Receiving Party." The term "Receiving Party" means the Federal Trade Commission, including its staff, attorneys, consultants, experts, economists, and agents in the Bureau of Competition, Mergers IV Division, and any other division or bureau of the Commission to which materials produced in connection with FTC File No. 231-0487 may be disclosed in the ordinary course of the Commission's investigation.

1.5 "Production." The term "Production" means any production of documents, data, or information made in response to the Second Request dated May 29, 2023 (FTC File No. 231-0487), including the initial production, any supplemental productions, any rolling productions, and any productions made in response to pull-forward requests, supplemental requests, or informal requests by the Commission Staff in connection with the investigation.

1.6 "Second Request." The term "Second Request" means the Request for Additional Information and Documentary Material issued by the Federal Trade Commission on May 29, 2023, containing forty-seven (47) specifications, and any and all modifications, supplements, amendments, clarifications, or restatements thereof, whether written or oral, agreed to by the parties during the course of Second Request compliance.

SECTION 2 — NON-WAIVER PROTECTIONS

2.1 No Waiver by Inadvertent Production. The Inadvertent Production of any Privileged Material in the course of compliance with the Second Request, or in connection with any other production made in the course of the Commission's investigation in FTC File No. 231-0487, shall not constitute a waiver of any applicable privilege, immunity, or protection, whether asserted under federal law, state law, or any other applicable body of law. This non-waiver protection shall apply regardless of: (a) the number of documents inadvertently produced; (b) the subject matter of the documents inadvertently produced; (c) the sensitivity or significance of the documents inadvertently produced; (d) the circumstances giving rise to the Inadvertent Production, including any failure of the privilege review process; (e) whether the Inadvertent Production resulted from human error, technological error, or any other cause; or (f) the length of time that elapses between the Inadvertent Production and the Producing Parties' discovery and notification thereof. This non-waiver protection extends to all Privileged Material produced by the Producing Parties, whether or not the Producing Parties promptly discover and notify the Receiving Party of the Inadvertent Production. For the avoidance of doubt, the protections of this Section 2.1 apply even in the event that the Producing Parties fail to take reasonable steps to prevent the Inadvertent Production or fail to promptly rectify the error upon discovery, it being the intent of the parties that no Inadvertent Production under this Agreement shall result in waiver under any circumstances.

2.2 Scope of Non-Waiver. The non-waiver protection set forth in Section 2.1 applies to Inadvertent Productions made in all productions in connection with FTC File No. 231-0487, including but not limited to: (a) document productions bearing Bates prefixes SDILP-2R (and any subsequent Bates prefix series used in connection with the Second Request compliance); (b) structured data submissions, including transactional data, pricing data, customer data, and any other data produced in structured or semi-structured formats; (c) deposition exhibits, interview materials, or other materials provided to the Commission Staff in connection with investigational hearings or voluntary interviews; and (d) any other materials produced to the Commission Staff in connection with the investigation. The non-waiver protection applies to all categories of privilege and protection, including but not limited to the attorney-client privilege, the work product doctrine (both fact and opinion work product), and the joint defense or common interest privilege. The privilege over any inadvertently produced material is not waived as to any third party or in any other proceeding, whether judicial, administrative, legislative, or otherwise, in any jurisdiction, whether federal, state, or foreign.

2.3 FRE 502(d) Principles. This Agreement is intended to provide protections functionally equivalent to those that would be afforded by a court order entered pursuant to Federal Rule of Evidence 502(d). The parties agree and stipulate that: (a) any Inadvertent Production made pursuant to this Agreement shall not constitute a waiver of the attorney-client privilege or work product protection in any federal or state proceeding; (b) to the extent any court of competent jurisdiction is asked to adjudicate whether an Inadvertent Production made pursuant to this Agreement constitutes a waiver of privilege, the parties agree to inform such court of the existence of this Agreement, to submit this Agreement to the court, and to jointly advocate that the provisions of FRE 502(d) should govern and that no waiver has occurred; and (c) nothing in this Agreement precludes either party from seeking an order from a court of competent jurisdiction under FRE 502(d) if the matter should proceed to litigation in federal court or if either party otherwise determines that a court order would provide additional protection. The parties acknowledge that FRE 502(d) provides that a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, and that such an order is binding on all persons or entities in all federal or state proceedings, regardless of whether they were parties to the litigation.

SECTION 3 — CLAWBACK PROCEDURES

3.1 Notification of Inadvertent Production. Upon discovery that Privileged Material has been inadvertently produced in connection with the Second Request or any other production made in the course of the Commission's investigation in FTC File No. 231-0487, the Producing Parties shall promptly notify the Receiving Party in writing of the Inadvertent Production. Such notification (a "Clawback Notice") shall: (a) identify the specific documents or communications that were inadvertently produced, by Bates number, document control number, or other unique identifier sufficient to enable the Receiving Party to locate and identify the materials at issue; (b) include a general description of the privilege or protection asserted over each identified document or communication (i.e., attorney-client privilege, work product doctrine, joint defense or common interest privilege, or other applicable protection), without requiring the Producing Parties to disclose the substance of the privileged content; and (c) request the return, sequestration, or destruction of all copies of the identified Privileged Material in the possession, custody, or control of the Receiving Party. Clawback Notices shall be directed to the Lead Staff Attorney, Bureau of Competition, Mergers IV Division, Federal Trade Commission, with a copy to any other FTC personnel designated in writing by the Commission Staff for the receipt of such notices. The Producing Parties shall use reasonable efforts to provide Clawback Notices as promptly as practicable upon discovery of any Inadvertent Production, but the failure to provide prompt notice shall not affect the non-waiver protections set forth in Section 2 of this Agreement.

3.2 Obligations of Receiving Party Upon Notification. Upon receipt of a Clawback Notice from the Producing Parties, the Receiving Party shall comply with the following obligations:

(a) Return, Sequester, or Destroy. The Receiving Party shall promptly return, sequester, or destroy all copies of the identified Privileged Material, including paper copies, electronic copies, images, and any copies stored in databases, document review platforms (including any Relativity or other e-discovery platform used by the Commission Staff), litigation support systems, shared drives, email accounts, or any other repositories in the possession, custody, or control of the Receiving Party or any of its agents, consultants, experts, or economists.

(b) No Further Review or Use. The Receiving Party shall not read, review, analyze, copy, summarize, excerpt, or make any use of the identified Privileged Material after receipt of the Clawback Notice, except to the extent strictly necessary to identify and sequester the material in accordance with subsection (a) above.

(c) No Disclosure. The Receiving Party shall not disclose the contents, substance, or import of the identified Privileged Material to any person, including other FTC staff members who have not already reviewed the material, third parties, counsel to other parties, consultants, experts, or any other individual or entity.

(d) Written Certification. Within five (5) business days of receipt of the Clawback Notice, the Receiving Party shall provide a written certification to the Producing Parties confirming that all copies of the identified Privileged Material have been returned to the Producing Parties, sequestered in a manner that prevents further access or review, or destroyed, as the case may be. Such certification shall specify the method of disposition (i.e., return, sequestration, or destruction) for each identified document.

3.3 Challenge to Clawback. If the Receiving Party disputes the assertion of privilege over any document or communication identified in a Clawback Notice, the Receiving Party shall notify the Producing Parties in writing of such dispute within ten (10) business days of receipt of the Clawback Notice (a "Challenge Notice"). A Challenge Notice shall identify the specific documents or communications as to which the Receiving Party disputes the privilege assertion and shall set forth, in reasonable detail, the basis for the Receiving Party's challenge. Upon receipt of a Challenge Notice, the parties shall promptly meet and confer in good faith to attempt to resolve the dispute. Such meet-and-confer discussions shall occur within ten (10) business days of the Producing Parties' receipt of the Challenge Notice, unless the parties agree to a different schedule. If the dispute cannot be resolved through the meet-and-confer process, either party may seek resolution from an appropriate tribunal, including a federal court of competent jurisdiction or an Administrative Law Judge, as applicable. Pending resolution of any dispute, the identified Privileged Material shall remain sequestered by the Receiving Party and shall not be reviewed, used, disclosed, or relied upon for any purpose. The Producing Parties shall bear the burden of establishing that the clawed-back material is protected by the asserted privilege or protection, and shall provide such evidence and argument as may be necessary to sustain that burden, including, if appropriate, submission of the material for in camera review.

3.4 Obligation to Supplement Privilege Log. For any document or communication clawed back pursuant to this Section 3, the Producing Parties shall add the clawed-back document or communication to their privilege log within ten (10) business days of the date of the Clawback Notice. The privilege log entry for any clawed-back document shall include the information specified in Section 4.1 below and shall comply with all applicable FTC standards and requirements for privilege log entries. The addition of a clawed-back document to the privilege log shall not be construed as an admission that the document was properly produced in the first instance or that the privilege assertion requires any greater showing than would otherwise apply.

SECTION 4 — PRIVILEGE LOG OBLIGATIONS

4.1 General Logging Requirement. The Producing Parties shall prepare and maintain a privilege log identifying all documents withheld from production on the basis of privilege, immunity, or other applicable protection. The privilege log shall include, for each withheld document, the following information:

(a) the date of the document or communication;

(b) the author(s) of the document or the initiator(s) of the communication;

(d) a general description of the subject matter of the document or communication, stated with sufficient specificity to enable the Commission Staff to assess the privilege assertion, but without revealing the substance of the privileged content;

(e) the specific privilege(s) or protection(s) asserted (i.e., attorney-client privilege, work product doctrine—fact or opinion, joint defense or common interest privilege, or other applicable protection); and

(f) a brief statement of the factual basis for the privilege assertion, including, where applicable, identification of the attorney(s) involved and the legal matter to which the communication relates.

4.2 Timing of Privilege Log. The privilege log shall be produced contemporaneously with, or promptly following, the Producing Parties' document productions in response to the Second Request. In the event the Producing Parties make rolling productions, the privilege log may be produced on a rolling basis as well, provided that a final, comprehensive privilege log covering all documents withheld on the basis of privilege shall be provided to the Commission Staff no later than the date on which the Producing Parties submit their Substantial Compliance Certification pursuant to the terms of the Second Request and any applicable timing agreement between the parties.

4.3 FTC Staff's Right to Challenge. The FTC Staff retains the full right to challenge any entry on the privilege log in accordance with applicable law, FTC procedures, and the terms of the Second Request. The parties shall meet and confer in good faith regarding any privilege log challenges before the FTC Staff takes further action, including seeking compulsory process or referring the matter to an appropriate tribunal. Such meet-and-confer discussions shall be conducted promptly and in a spirit of cooperation and good faith. Nothing in this Agreement limits the FTC Staff's right to challenge privilege assertions at any time, including the right to seek in camera review of withheld documents from an appropriate tribunal, to propound interrogatories or other discovery directed at the factual basis for privilege claims, or to raise privilege issues in the context of any investigational hearing, deposition, or other proceeding conducted in connection with FTC File No. 231-0487.

SECTION 5 — SCOPE OF PROTECTED COMMUNICATIONS

5.1 Communications with Counsel. The protections afforded by this Agreement extend to all communications between the Producing Parties and their counsel, including Calderwood & Harkness LLP and any other law firm or attorney representing any of the Producing Parties in connection with the Second Request, the Transaction, or the Commission's investigation. The protections also extend to communications between such counsel and any consultants, experts, economists, or other agents retained by or on behalf of the Producing Parties in connection with the Second Request compliance process, the Transaction, or the Commission's investigation, including but not limited to Dr. Arvind Chakrabarti, Senior Economist, Calderwood & Harkness Economic Consulting, and Tamara J. Westbrook, Of Counsel, Litigation Technology & E-discovery, Calderwood & Harkness LLP. The protections further extend to internal communications among attorneys at Calderwood & Harkness LLP and among the attorneys, paralegals, and staff involved in the Second Request compliance effort, to the extent such communications are protected by the attorney-client privilege, the work product doctrine, or any other applicable protection.

5.2 Joint Defense / Common Interest Communications. The protections afforded by this Agreement extend to communications among the Producing Parties' counsel and counsel to other parties to the Transaction who share a common legal interest in connection with the Commission's investigation, the Second Request compliance process, or related regulatory or legal proceedings. Such communications include, but are not limited to, communications between Calderwood & Harkness LLP and: (a) Hargrove, Pelletier & Stein LLP, counsel to Pinnacle Cloud Systems, Inc. and the Sellers named in the Stock Purchase Agreement; and (b) Ashford Crane LLP, counsel to Thorngate Capital Partners LP (in its capacity as Sellers' Representative), to the extent such communications are protected by the joint defense or common interest doctrine under applicable federal or state law. The existence of a common legal interest among the foregoing parties and their counsel is acknowledged by the parties hereto for purposes of this Agreement, without prejudice to any argument by the Commission Staff that such common interest does not extend to particular communications or categories of communications.

5.3 Work Product. The protections afforded by this Agreement extend to all materials constituting attorney work product, as that term is understood under the work product doctrine first recognized in Hickman v. Taylor, 329 U.S. 495 (1947), and codified, in part, in Federal Rule of Civil Procedure 26(b)(3). Such materials include both fact work product (documents and tangible things prepared in anticipation of litigation or for trial) and opinion work product (mental impressions, conclusions, opinions, and legal theories of attorneys), prepared in anticipation of litigation, in connection with the Commission's regulatory investigation and Second Request compliance process, or in connection with any related judicial, administrative, or regulatory proceedings. The heightened protection afforded to opinion work product is expressly preserved under this Agreement.

SECTION 6 — RELATIONSHIP TO PROTECTIVE ORDER

6.1 Incorporation of FTC Model Protective Order. This Agreement supplements, and is to be read in conjunction with, the FTC Model Stipulated Protective Order governing the confidential treatment of materials produced in connection with FTC File No. 231-0487 (the "Protective Order"). The terms and conditions of the Protective Order are hereby incorporated by reference and shall apply to all materials produced in connection with the Second Request, whether or not such materials are Privileged Material. To the extent any provision of this Agreement conflicts with, or is inconsistent with, any provision of the Protective Order, this Agreement shall control with respect to the treatment of inadvertently produced Privileged Material, clawback procedures, and non-waiver protections, and the Protective Order shall control with respect to all other matters, including the confidentiality designations and treatment of non-privileged confidential business information.

6.2 Confidentiality. All documents, data, and information produced in connection with the Second Request, whether or not privileged, shall be treated in accordance with the confidentiality provisions of the Protective Order. The confidentiality protections of the Protective Order are independent of, and in addition to, the privilege protections set forth in this Agreement. The inadvertent production of a document that is both confidential and privileged shall be governed by both this Agreement (with respect to the privilege protections and clawback procedures) and the Protective Order (with respect to confidentiality protections).

SECTION 7 — NO OBLIGATION TO PRODUCE PRIVILEGED MATERIALS

7.1 Reservation of Rights. Nothing in this Agreement requires the Producing Parties to produce any Privileged Material. The Producing Parties reserve all rights to withhold Privileged Material from production, to assert all applicable privileges, immunities, and protections, and to challenge any request by the Commission Staff for the production of Privileged Material. The existence of this Agreement, and the non-waiver and clawback protections set forth herein, shall not be construed as creating any obligation on the part of the Producing Parties to produce Privileged Material, to reduce the rigor of their privilege review, or to employ less protective review protocols than they would otherwise employ in the absence of this Agreement.

7.2 No Inference from Non-Production. The withholding of any document, communication, or information on the basis of privilege, immunity, or other applicable protection shall not give rise to any adverse inference against the Producing Parties, whether in the Commission's investigation, in any administrative proceeding, in any federal or state court proceeding, or in any other proceeding. The Commission Staff agrees not to seek or argue for any adverse inference based on the Producing Parties' assertion of privilege over any document or category of documents.

SECTION 8 — BINDING EFFECT AND THIRD PARTIES

8.1 Binding on the Parties. This Agreement is binding upon the Producing Parties and the FTC Staff, and upon their respective successors, assigns, agents, consultants, experts, and representatives. Each party represents that the person executing this Agreement on its behalf has full authority to do so and to bind the party to the terms and conditions of this Agreement.

8.2 Third-Party Protections. This Agreement is intended to protect against waiver of privilege as to all persons and entities, including third parties not party to this Agreement. The Inadvertent Production of any Privileged Material to the FTC Staff under this Agreement shall not constitute a waiver of privilege as to any third party, in any proceeding, whether judicial, administrative, legislative, regulatory, or otherwise, in any jurisdiction, whether federal, state, local, or foreign. The parties intend that this Agreement shall have the broadest possible effect in preventing any claim of waiver based on Inadvertent Production, whether in this matter or in any other matter, and whether asserted by the FTC, by any other governmental agency, or by any private party.

8.3 Disclosure to Third Parties by FTC Staff. In the event the FTC Staff discloses, or is required to disclose, any Privileged Material to any third party — including but not limited to disclosures made in connection with any Freedom of Information Act ("FOIA") request, any congressional inquiry, any request from another governmental agency (whether federal, state, or foreign), any subpoena or compulsory process, or any other governmental or legal process — the FTC Staff shall: (a) provide the Producing Parties with prompt written notice of the anticipated or required disclosure, to the extent permitted by law, and in no event later than five (5) business days prior to such disclosure, unless a shorter period is required by law or court order; and (b) assert to the requesting party or tribunal that the material at issue was inadvertently produced and that no waiver of privilege has occurred, and take reasonable steps to prevent or limit the disclosure of the Privileged Material, consistent with applicable law and the Commission's obligations. The FTC Staff shall cooperate with the Producing Parties in any effort to obtain a protective order or other appropriate relief to prevent or limit the disclosure of inadvertently produced Privileged Material to third parties.

SECTION 9 — DURATION AND TERMINATION

9.1 Effective Date. This Agreement is effective as of June 9, 2023, the date of execution by the last party to sign below.

9.2 Duration. This Agreement shall remain in effect for the duration of the FTC's investigation in connection with FTC File No. 231-0487, including any extension or continuation of such investigation, and shall survive the termination or expiration of the investigation, the closing or abandonment of the Transaction, the issuance of any consent decree, administrative complaint, or other disposition of the matter, or the passage of any applicable waiting period under the HSR Act. The parties' obligations under this Agreement shall continue in full force and effect notwithstanding any of the foregoing events.

9.3 Survival of Non-Waiver Protections. The non-waiver protections set forth in Section 2 of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect in perpetuity. The parties agree and stipulate that no Inadvertent Production made during the effectiveness of this Agreement shall constitute a waiver of privilege at any time, regardless of any subsequent termination or expiration of this Agreement, the Commission's investigation, or any other event.

SECTION 10 — MISCELLANEOUS PROVISIONS

10.1 Governing Law. This Agreement shall be governed by and construed in accordance with federal law, including Federal Rule of Evidence 502 and the applicable federal common law of privilege. To the extent state law governs any privilege issue arising under this Agreement, the parties agree that the non-waiver protections of this Agreement shall apply with equal force under applicable state law.

10.2 Modification. This Agreement may be modified, amended, or supplemented only by a written instrument signed by all parties hereto, or their duly authorized representatives. No oral modification, amendment, or waiver of any provision of this Agreement shall be effective.

10.3 Integration. This Agreement, together with the FTC Model Stipulated Protective Order governing FTC File No. 231-0487, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, and communications between the parties, whether written or oral, relating to the treatment of privileged materials in connection with the Second Request and the Commission's investigation.

10.4 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution by facsimile or electronic signature (including PDF) shall have the same force and effect as execution by original signature.

10.5 No Admission. Nothing in this Agreement constitutes an admission by any party regarding the existence or non-existence of any privilege, immunity, or protection as to any particular document, communication, or category of documents or communications. The execution of this Agreement shall not be construed as an acknowledgment by the Commission Staff that any particular document is privileged, nor as an acknowledgment by the Producing Parties that any particular document is not privileged. This Agreement is entered into solely for the purpose of establishing procedures for the treatment of inadvertently produced materials and does not constitute, and shall not be construed as, a substantive determination regarding the merits of any privilege claim.

10.6 Notices. All notices, Clawback Notices, Challenge Notices, certifications, and other communications required or permitted under this Agreement shall be in writing and shall be delivered by hand, by overnight courier, by United States mail (postage prepaid), or by electronic mail, and shall be directed as follows:

For the Producing Parties:

Howard Bellamy, Partner Antitrust & Competition Group Calderwood & Harkness LLP 1900 K Street NW, Suite 800 Washington, DC 20006

Email: hbellamy@calderwoodharkness.com

For the FTC Staff:

Lead Staff Attorney Bureau of Competition, Mergers IV Division Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580

Email: [as designated by the Lead Staff Attorney in writing]

Either party may change its designated contact for notices by providing written notice to the other party in accordance with this Section 10.6.

SIGNATURE BLOCKS

IN WITNESS WHEREOF, the parties have executed this Stipulated Non-Waiver and Clawback Agreement as of the date first written above.

FOR THE PRODUCING PARTIES:

CALDERWOOD & HARKNESS LLP on behalf of Solara Digital Infrastructure LP, Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., and Meridian Workflow Solutions, Inc.

By: ________

Name: Howard Bellamy

Title: Partner, Antitrust & Competition Group

Date: June 9, 2023

Address:

1900 K Street NW, Suite 800 Washington, DC 20006

FOR THE FEDERAL TRADE COMMISSION STAFF:

BUREAU OF COMPETITION MERGERS IV DIVISION FEDERAL TRADE COMMISSION

By: ________

Name: ________

Title: Lead Staff Attorney, Mergers IV Division

Date: June 9, 2023

Address:

Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580

ACKNOWLEDGED AND AGREED:

SOLARA DIGITAL INFRASTRUCTURE LP By its General Partner, Solara Digital Infrastructure GP LLC

By: ________

Name: Graham A. Whitfield

Title: Founding Partner & Chief Executive Officer,

Solara Digital Infrastructure GP LLC

Date: June 9, 2023

Address:

200 Tatnall Street, Suite 1400 Wilmington, DE 19801

STIPULATED NON-WAIVER AND CLAWBACK AGREEMENT
FTC File No. 231-0487
In the Matter of Solara Digital Infrastructure Fund IV LP and Pinnacle Cloud Systems, Inc.
Date of Execution: June 9, 2023
PREAMBLE
This Stipulated Non-Waiver and Clawback Agreement (this "Agreement") is entered into as of June 9, 2023, by and between:
(i) Calderwood & Harkness LLP, a law firm with offices at 1900 K Street NW, Suite 800, Washington, DC 20006, acting on behalf of Solara Digital Infrastructure LP, a Delaware limited partnership, Solara Digital Infrastructure GP LLC, a Delaware limited liability company, Solara Digital Infrastructure Fund IV LP, a Delaware limited partnership, PCS Acquisition Corp., a Delaware corporation, and Meridian Workflow Solutions, Inc., a Delaware corporation (collectively, the "Producing Parties"); and
(ii) Staff of the Bureau of Competition, Mergers IV Division, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580 (the "FTC Staff" or "Commission Staff").
This Agreement is entered into in connection with the Second Request for Additional Information and Documentary Material (the "Second Request") issued on May 29, 2023, by the Federal Trade Commission (the "Commission" or "FTC") pursuant to Section 7A of the Clayton Act, 15 U.S.C. § 18a, and 16 C.F.R. § 803.20, in connection with FTC File No. 231-0487.
The Second Request was issued in connection with the proposed acquisition (the "Transaction") of one hundred percent (100%) of the outstanding capital stock of Pinnacle Cloud Systems, Inc., a Delaware corporation ("Pinnacle" or the "Target"), by Solara Digital Infrastructure Fund IV LP, a Delaware limited partnership ("Solara Fund IV"), acting through its wholly owned indirect subsidiary, PCS Acquisition Corp., a Delaware corporation ("Acquisition Sub"), pursuant to that certain Stock Purchase Agreement dated April 14, 2023 (the "SPA"), by and among Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., Pinnacle Cloud Systems, Inc., Thorngate Capital Partners LP, a Delaware limited partnership (in its capacity as Sellers' Representative), and the Sellers named therein. The Transaction has an enterprise value of approximately One Billion Six Hundred Thirty Million Dollars ($1,630,000,000). A filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), was submitted on April 28, 2023, and the applicable filing fee of Four Hundred Fifty Thousand Dollars ($450,000) was paid in connection therewith. The Second Request was issued on May 29, 2023, and is identified as FTC File No. 231-0487.
This Agreement is modeled on, and incorporates the principles of, Federal Rule of Evidence 502(d) ("FRE 502(d)"), adapted for the administrative context of FTC Second Request compliance. Because the present matter is at the agency level and no federal court action is currently pending, no court order is being sought at this time; however, the parties intend that this Agreement shall provide protections functionally equivalent to those afforded by a court order entered pursuant to FRE 502(d). This Agreement also incorporates and is governed by the terms of the FTC Model Stipulated Protective Order entered in connection with FTC File No. 231-0487 (the "Protective Order").
RECITALS
WHEREAS:
A. Second Request Compliance. The Federal Trade Commission issued a Second Request dated May 29, 2023, in connection with FTC File No. 231-0487, containing forty-seven (47) specifications requiring the production of documents and data relating to the proposed Transaction and to the business operations, competitive conditions, and market dynamics relevant to the Commission's review of the Transaction. The Producing Parties are presently engaged in the collection, review, and production of documents and data responsive to the Second Request. In connection with the Second Request compliance effort, the Producing Parties have identified eighteen (18) custodians on the Solara side from whom documents are being collected: twelve (12) custodians from the management and investment team of Solara Digital Infrastructure GP LLC and Solara Digital Infrastructure Fund IV LP, and six (6) custodians from the management of Meridian Workflow Solutions, Inc., a portfolio company of Solara Digital Infrastructure Fund IV LP. Based on preliminary collection and processing, the Producing Parties estimate that approximately 1,240,000 documents will be collected in connection with Second Request compliance, and that approximately 487,000 documents are anticipated for review after de-duplication, date filtering, keyword filtering, and other standard processing and culling measures. The volume and pace of production necessitate protections against inadvertent disclosure of privileged and protected materials.
B. Privilege and Work Product Protections. In the course of compliance with the Second Request, the Producing Parties may inadvertently produce documents or communications that are protected by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law. The Producing Parties intend to conduct their privilege review using a team of contract review attorneys managed by Keymark Document Solutions LLC, located at 7600 Leesburg Pike, Suite 320, Falls Church, Virginia 22043. The contract review team will be supervised by attorneys at Calderwood & Harkness LLP, including Monica Reyes, Lead Associate, and Elliot Nguyen, Working Associate, with overall oversight provided by Tamara J. Westbrook, Of Counsel, Litigation Technology & E-discovery, Calderwood & Harkness LLP. The document review will be conducted using a hosted Relativity environment maintained and administered by Keymark Document Solutions LLC. Despite the implementation of reasonable precautions — including training of contract reviewers, application of privilege search terms and filters, quality control sampling, and supervisor review of privilege designations — the sheer volume of documents under review, the compressed timeline inherent in Second Request compliance, and the use of technology-assisted review ("TAR") and continuous active learning ("CAL") methodologies create a material and unavoidable risk that privileged materials may be inadvertently produced to the Commission Staff.
C. Purpose of Agreement. The parties desire to enter into this Agreement to establish a clear, mutually agreed-upon mechanism for the prompt identification, notification, and return, sequestration, or destruction of inadvertently produced privileged materials, and to ensure that any such inadvertent production does not constitute a waiver of any applicable privilege, immunity, or protection, whether as to the Commission Staff or any third party, in this or any other proceeding. This Agreement is intended to provide protections functionally equivalent to those available under FRE 502(d), adapted for the administrative context of FTC Second Request compliance, and to provide both parties with certainty and efficiency in the handling of privilege issues that may arise during the course of production.
D. FTC Model Protective Order. The parties acknowledge that this Agreement supplements, and is to be read in conjunction with, the FTC Model Stipulated Protective Order governing the confidential treatment of materials produced in connection with FTC File No. 231-0487. The Protective Order governs the treatment of confidential business information and other sensitive materials produced in connection with the Second Request, and the protections set forth in this Agreement are in addition to, and not in limitation of, the protections afforded by the Protective Order.
NOW, THEREFORE, in consideration of the foregoing recitals and 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 agree as follows:
SECTION 1 — DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 "Inadvertent Production." The term "Inadvertent Production" means any production of a document, communication, or information that is protected by the attorney-client privilege, the work product doctrine, the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law, where such production was not intended by the Producing Parties and was not accompanied by a knowing and voluntary decision to waive the applicable privilege or protection. For the avoidance of doubt, a production shall be deemed "inadvertent" for purposes of this Agreement if the Producing Parties did not intend to waive the applicable privilege or protection at the time of production, regardless of the circumstances giving rise to the production, including any failure to identify the document during privilege review.
1.2 "Privileged Material." The term "Privileged Material" means any document, communication, data, or information that is protected from disclosure by the attorney-client privilege, the work product doctrine (including both fact work product and opinion work product as described in Hickman v. Taylor, 329 U.S. 495 (1947), and its progeny), the joint defense or common interest privilege, or any other applicable privilege, immunity, or protection recognized under federal or state law. The term "Privileged Material" includes, without limitation, communications between the Producing Parties and their attorneys, attorney mental impressions, legal analyses, litigation strategies, and materials prepared in anticipation of litigation or regulatory proceedings.
1.3 "Producing Parties." The term "Producing Parties" means, collectively, Solara Digital Infrastructure LP, Solara Digital Infrastructure GP LLC, Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., and Meridian Workflow Solutions, Inc., and their respective officers, directors, employees, agents, and counsel, including Calderwood & Harkness LLP and any other law firm or attorney representing any of the foregoing entities in connection with the Second Request or the Transaction.
1.4 "Receiving Party." The term "Receiving Party" means the Federal Trade Commission, including its staff, attorneys, consultants, experts, economists, and agents in the Bureau of Competition, Mergers IV Division, and any other division or bureau of the Commission to which materials produced in connection with FTC File No. 231-0487 may be disclosed in the ordinary course of the Commission's investigation.
1.5 "Production." The term "Production" means any production of documents, data, or information made in response to the Second Request dated May 29, 2023 (FTC File No. 231-0487), including the initial production, any supplemental productions, any rolling productions, and any productions made in response to pull-forward requests, supplemental requests, or informal requests by the Commission Staff in connection with the investigation.
1.6 "Second Request." The term "Second Request" means the Request for Additional Information and Documentary Material issued by the Federal Trade Commission on May 29, 2023, containing forty-seven (47) specifications, and any and all modifications, supplements, amendments, clarifications, or restatements thereof, whether written or oral, agreed to by the parties during the course of Second Request compliance.
SECTION 2 — NON-WAIVER PROTECTIONS
2.1 No Waiver by Inadvertent Production. The Inadvertent Production of any Privileged Material in the course of compliance with the Second Request, or in connection with any other production made in the course of the Commission's investigation in FTC File No. 231-0487, shall not constitute a waiver of any applicable privilege, immunity, or protection, whether asserted under federal law, state law, or any other applicable body of law. This non-waiver protection shall apply regardless of: (a) the number of documents inadvertently produced; (b) the subject matter of the documents inadvertently produced; (c) the sensitivity or significance of the documents inadvertently produced; (d) the circumstances giving rise to the Inadvertent Production, including any failure of the privilege review process; (e) whether the Inadvertent Production resulted from human error, technological error, or any other cause; or (f) the length of time that elapses between the Inadvertent Production and the Producing Parties' discovery and notification thereof. This non-waiver protection extends to all Privileged Material produced by the Producing Parties, whether or not the Producing Parties promptly discover and notify the Receiving Party of the Inadvertent Production. For the avoidance of doubt, the protections of this Section 2.1 apply even in the event that the Producing Parties fail to take reasonable steps to prevent the Inadvertent Production or fail to promptly rectify the error upon discovery, it being the intent of the parties that no Inadvertent Production under this Agreement shall result in waiver under any circumstances.
2.2 Scope of Non-Waiver. The non-waiver protection set forth in Section 2.1 applies to Inadvertent Productions made in all productions in connection with FTC File No. 231-0487, including but not limited to: (a) document productions bearing Bates prefixes SDILP-2R (and any subsequent Bates prefix series used in connection with the Second Request compliance); (b) structured data submissions, including transactional data, pricing data, customer data, and any other data produced in structured or semi-structured formats; (c) deposition exhibits, interview materials, or other materials provided to the Commission Staff in connection with investigational hearings or voluntary interviews; and (d) any other materials produced to the Commission Staff in connection with the investigation. The non-waiver protection applies to all categories of privilege and protection, including but not limited to the attorney-client privilege, the work product doctrine (both fact and opinion work product), and the joint defense or common interest privilege. The privilege over any inadvertently produced material is not waived as to any third party or in any other proceeding, whether judicial, administrative, legislative, or otherwise, in any jurisdiction, whether federal, state, or foreign.
2.3 FRE 502(d) Principles. This Agreement is intended to provide protections functionally equivalent to those that would be afforded by a court order entered pursuant to Federal Rule of Evidence 502(d). The parties agree and stipulate that: (a) any Inadvertent Production made pursuant to this Agreement shall not constitute a waiver of the attorney-client privilege or work product protection in any federal or state proceeding; (b) to the extent any court of competent jurisdiction is asked to adjudicate whether an Inadvertent Production made pursuant to this Agreement constitutes a waiver of privilege, the parties agree to inform such court of the existence of this Agreement, to submit this Agreement to the court, and to jointly advocate that the provisions of FRE 502(d) should govern and that no waiver has occurred; and (c) nothing in this Agreement precludes either party from seeking an order from a court of competent jurisdiction under FRE 502(d) if the matter should proceed to litigation in federal court or if either party otherwise determines that a court order would provide additional protection. The parties acknowledge that FRE 502(d) provides that a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, and that such an order is binding on all persons or entities in all federal or state proceedings, regardless of whether they were parties to the litigation.
SECTION 3 — CLAWBACK PROCEDURES
3.1 Notification of Inadvertent Production. Upon discovery that Privileged Material has been inadvertently produced in connection with the Second Request or any other production made in the course of the Commission's investigation in FTC File No. 231-0487, the Producing Parties shall promptly notify the Receiving Party in writing of the Inadvertent Production. Such notification (a "Clawback Notice") shall: (a) identify the specific documents or communications that were inadvertently produced, by Bates number, document control number, or other unique identifier sufficient to enable the Receiving Party to locate and identify the materials at issue; (b) include a general description of the privilege or protection asserted over each identified document or communication (i.e., attorney-client privilege, work product doctrine, joint defense or common interest privilege, or other applicable protection), without requiring the Producing Parties to disclose the substance of the privileged content; and (c) request the return, sequestration, or destruction of all copies of the identified Privileged Material in the possession, custody, or control of the Receiving Party. Clawback Notices shall be directed to the Lead Staff Attorney, Bureau of Competition, Mergers IV Division, Federal Trade Commission, with a copy to any other FTC personnel designated in writing by the Commission Staff for the receipt of such notices. The Producing Parties shall use reasonable efforts to provide Clawback Notices as promptly as practicable upon discovery of any Inadvertent Production, but the failure to provide prompt notice shall not affect the non-waiver protections set forth in Section 2 of this Agreement.
3.2 Obligations of Receiving Party Upon Notification. Upon receipt of a Clawback Notice from the Producing Parties, the Receiving Party shall comply with the following obligations:
(a) Return, Sequester, or Destroy. The Receiving Party shall promptly return, sequester, or destroy all copies of the identified Privileged Material, including paper copies, electronic copies, images, and any copies stored in databases, document review platforms (including any Relativity or other e-discovery platform used by the Commission Staff), litigation support systems, shared drives, email accounts, or any other repositories in the possession, custody, or control of the Receiving Party or any of its agents, consultants, experts, or economists.
(b) No Further Review or Use. The Receiving Party shall not read, review, analyze, copy, summarize, excerpt, or make any use of the identified Privileged Material after receipt of the Clawback Notice, except to the extent strictly necessary to identify and sequester the material in accordance with subsection (a) above.
(c) No Disclosure. The Receiving Party shall not disclose the contents, substance, or import of the identified Privileged Material to any person, including other FTC staff members who have not already reviewed the material, third parties, counsel to other parties, consultants, experts, or any other individual or entity.
(d) Written Certification. Within five (5) business days of receipt of the Clawback Notice, the Receiving Party shall provide a written certification to the Producing Parties confirming that all copies of the identified Privileged Material have been returned to the Producing Parties, sequestered in a manner that prevents further access or review, or destroyed, as the case may be. Such certification shall specify the method of disposition (i.e., return, sequestration, or destruction) for each identified document.
3.3 Challenge to Clawback. If the Receiving Party disputes the assertion of privilege over any document or communication identified in a Clawback Notice, the Receiving Party shall notify the Producing Parties in writing of such dispute within ten (10) business days of receipt of the Clawback Notice (a "Challenge Notice"). A Challenge Notice shall identify the specific documents or communications as to which the Receiving Party disputes the privilege assertion and shall set forth, in reasonable detail, the basis for the Receiving Party's challenge. Upon receipt of a Challenge Notice, the parties shall promptly meet and confer in good faith to attempt to resolve the dispute. Such meet-and-confer discussions shall occur within ten (10) business days of the Producing Parties' receipt of the Challenge Notice, unless the parties agree to a different schedule. If the dispute cannot be resolved through the meet-and-confer process, either party may seek resolution from an appropriate tribunal, including a federal court of competent jurisdiction or an Administrative Law Judge, as applicable. Pending resolution of any dispute, the identified Privileged Material shall remain sequestered by the Receiving Party and shall not be reviewed, used, disclosed, or relied upon for any purpose. The Producing Parties shall bear the burden of establishing that the clawed-back material is protected by the asserted privilege or protection, and shall provide such evidence and argument as may be necessary to sustain that burden, including, if appropriate, submission of the material for in camera review.
3.4 Obligation to Supplement Privilege Log. For any document or communication clawed back pursuant to this Section 3, the Producing Parties shall add the clawed-back document or communication to their privilege log within ten (10) business days of the date of the Clawback Notice. The privilege log entry for any clawed-back document shall include the information specified in Section 4.1 below and shall comply with all applicable FTC standards and requirements for privilege log entries. The addition of a clawed-back document to the privilege log shall not be construed as an admission that the document was properly produced in the first instance or that the privilege assertion requires any greater showing than would otherwise apply.
SECTION 4 — PRIVILEGE LOG OBLIGATIONS
4.1 General Logging Requirement. The Producing Parties shall prepare and maintain a privilege log identifying all documents withheld from production on the basis of privilege, immunity, or other applicable protection. The privilege log shall include, for each withheld document, the following information:
(a) the date of the document or communication;
(b) the author(s) of the document or the initiator(s) of the communication;
(c) the recipient(s) of the document or communication, and any persons copied or blind-copied thereon;
(d) a general description of the subject matter of the document or communication, stated with sufficient specificity to enable the Commission Staff to assess the privilege assertion, but without revealing the substance of the privileged content;
(e) the specific privilege(s) or protection(s) asserted (i.e., attorney-client privilege, work product doctrine—fact or opinion, joint defense or common interest privilege, or other applicable protection); and
(f) a brief statement of the factual basis for the privilege assertion, including, where applicable, identification of the attorney(s) involved and the legal matter to which the communication relates.
4.2 Timing of Privilege Log. The privilege log shall be produced contemporaneously with, or promptly following, the Producing Parties' document productions in response to the Second Request. In the event the Producing Parties make rolling productions, the privilege log may be produced on a rolling basis as well, provided that a final, comprehensive privilege log covering all documents withheld on the basis of privilege shall be provided to the Commission Staff no later than the date on which the Producing Parties submit their Substantial Compliance Certification pursuant to the terms of the Second Request and any applicable timing agreement between the parties.
4.3 FTC Staff's Right to Challenge. The FTC Staff retains the full right to challenge any entry on the privilege log in accordance with applicable law, FTC procedures, and the terms of the Second Request. The parties shall meet and confer in good faith regarding any privilege log challenges before the FTC Staff takes further action, including seeking compulsory process or referring the matter to an appropriate tribunal. Such meet-and-confer discussions shall be conducted promptly and in a spirit of cooperation and good faith. Nothing in this Agreement limits the FTC Staff's right to challenge privilege assertions at any time, including the right to seek in camera review of withheld documents from an appropriate tribunal, to propound interrogatories or other discovery directed at the factual basis for privilege claims, or to raise privilege issues in the context of any investigational hearing, deposition, or other proceeding conducted in connection with FTC File No. 231-0487.
SECTION 5 — SCOPE OF PROTECTED COMMUNICATIONS
5.1 Communications with Counsel. The protections afforded by this Agreement extend to all communications between the Producing Parties and their counsel, including Calderwood & Harkness LLP and any other law firm or attorney representing any of the Producing Parties in connection with the Second Request, the Transaction, or the Commission's investigation. The protections also extend to communications between such counsel and any consultants, experts, economists, or other agents retained by or on behalf of the Producing Parties in connection with the Second Request compliance process, the Transaction, or the Commission's investigation, including but not limited to Dr. Arvind Chakrabarti, Senior Economist, Calderwood & Harkness Economic Consulting, and Tamara J. Westbrook, Of Counsel, Litigation Technology & E-discovery, Calderwood & Harkness LLP. The protections further extend to internal communications among attorneys at Calderwood & Harkness LLP and among the attorneys, paralegals, and staff involved in the Second Request compliance effort, to the extent such communications are protected by the attorney-client privilege, the work product doctrine, or any other applicable protection.
5.2 Joint Defense / Common Interest Communications. The protections afforded by this Agreement extend to communications among the Producing Parties' counsel and counsel to other parties to the Transaction who share a common legal interest in connection with the Commission's investigation, the Second Request compliance process, or related regulatory or legal proceedings. Such communications include, but are not limited to, communications between Calderwood & Harkness LLP and: (a) Hargrove, Pelletier & Stein LLP, counsel to Pinnacle Cloud Systems, Inc. and the Sellers named in the Stock Purchase Agreement; and (b) Ashford Crane LLP, counsel to Thorngate Capital Partners LP (in its capacity as Sellers' Representative), to the extent such communications are protected by the joint defense or common interest doctrine under applicable federal or state law. The existence of a common legal interest among the foregoing parties and their counsel is acknowledged by the parties hereto for purposes of this Agreement, without prejudice to any argument by the Commission Staff that such common interest does not extend to particular communications or categories of communications.
5.3 Work Product. The protections afforded by this Agreement extend to all materials constituting attorney work product, as that term is understood under the work product doctrine first recognized in Hickman v. Taylor, 329 U.S. 495 (1947), and codified, in part, in Federal Rule of Civil Procedure 26(b)(3). Such materials include both fact work product (documents and tangible things prepared in anticipation of litigation or for trial) and opinion work product (mental impressions, conclusions, opinions, and legal theories of attorneys), prepared in anticipation of litigation, in connection with the Commission's regulatory investigation and Second Request compliance process, or in connection with any related judicial, administrative, or regulatory proceedings. The heightened protection afforded to opinion work product is expressly preserved under this Agreement.
SECTION 6 — RELATIONSHIP TO PROTECTIVE ORDER
6.1 Incorporation of FTC Model Protective Order. This Agreement supplements, and is to be read in conjunction with, the FTC Model Stipulated Protective Order governing the confidential treatment of materials produced in connection with FTC File No. 231-0487 (the "Protective Order"). The terms and conditions of the Protective Order are hereby incorporated by reference and shall apply to all materials produced in connection with the Second Request, whether or not such materials are Privileged Material. To the extent any provision of this Agreement conflicts with, or is inconsistent with, any provision of the Protective Order, this Agreement shall control with respect to the treatment of inadvertently produced Privileged Material, clawback procedures, and non-waiver protections, and the Protective Order shall control with respect to all other matters, including the confidentiality designations and treatment of non-privileged confidential business information.
6.2 Confidentiality. All documents, data, and information produced in connection with the Second Request, whether or not privileged, shall be treated in accordance with the confidentiality provisions of the Protective Order. The confidentiality protections of the Protective Order are independent of, and in addition to, the privilege protections set forth in this Agreement. The inadvertent production of a document that is both confidential and privileged shall be governed by both this Agreement (with respect to the privilege protections and clawback procedures) and the Protective Order (with respect to confidentiality protections).
SECTION 7 — NO OBLIGATION TO PRODUCE PRIVILEGED MATERIALS
7.1 Reservation of Rights. Nothing in this Agreement requires the Producing Parties to produce any Privileged Material. The Producing Parties reserve all rights to withhold Privileged Material from production, to assert all applicable privileges, immunities, and protections, and to challenge any request by the Commission Staff for the production of Privileged Material. The existence of this Agreement, and the non-waiver and clawback protections set forth herein, shall not be construed as creating any obligation on the part of the Producing Parties to produce Privileged Material, to reduce the rigor of their privilege review, or to employ less protective review protocols than they would otherwise employ in the absence of this Agreement.
7.2 No Inference from Non-Production. The withholding of any document, communication, or information on the basis of privilege, immunity, or other applicable protection shall not give rise to any adverse inference against the Producing Parties, whether in the Commission's investigation, in any administrative proceeding, in any federal or state court proceeding, or in any other proceeding. The Commission Staff agrees not to seek or argue for any adverse inference based on the Producing Parties' assertion of privilege over any document or category of documents.
SECTION 8 — BINDING EFFECT AND THIRD PARTIES
8.1 Binding on the Parties. This Agreement is binding upon the Producing Parties and the FTC Staff, and upon their respective successors, assigns, agents, consultants, experts, and representatives. Each party represents that the person executing this Agreement on its behalf has full authority to do so and to bind the party to the terms and conditions of this Agreement.
8.2 Third-Party Protections. This Agreement is intended to protect against waiver of privilege as to all persons and entities, including third parties not party to this Agreement. The Inadvertent Production of any Privileged Material to the FTC Staff under this Agreement shall not constitute a waiver of privilege as to any third party, in any proceeding, whether judicial, administrative, legislative, regulatory, or otherwise, in any jurisdiction, whether federal, state, local, or foreign. The parties intend that this Agreement shall have the broadest possible effect in preventing any claim of waiver based on Inadvertent Production, whether in this matter or in any other matter, and whether asserted by the FTC, by any other governmental agency, or by any private party.
8.3 Disclosure to Third Parties by FTC Staff. In the event the FTC Staff discloses, or is required to disclose, any Privileged Material to any third party — including but not limited to disclosures made in connection with any Freedom of Information Act ("FOIA") request, any congressional inquiry, any request from another governmental agency (whether federal, state, or foreign), any subpoena or compulsory process, or any other governmental or legal process — the FTC Staff shall: (a) provide the Producing Parties with prompt written notice of the anticipated or required disclosure, to the extent permitted by law, and in no event later than five (5) business days prior to such disclosure, unless a shorter period is required by law or court order; and (b) assert to the requesting party or tribunal that the material at issue was inadvertently produced and that no waiver of privilege has occurred, and take reasonable steps to prevent or limit the disclosure of the Privileged Material, consistent with applicable law and the Commission's obligations. The FTC Staff shall cooperate with the Producing Parties in any effort to obtain a protective order or other appropriate relief to prevent or limit the disclosure of inadvertently produced Privileged Material to third parties.
SECTION 9 — DURATION AND TERMINATION
9.1 Effective Date. This Agreement is effective as of June 9, 2023, the date of execution by the last party to sign below.
9.2 Duration. This Agreement shall remain in effect for the duration of the FTC's investigation in connection with FTC File No. 231-0487, including any extension or continuation of such investigation, and shall survive the termination or expiration of the investigation, the closing or abandonment of the Transaction, the issuance of any consent decree, administrative complaint, or other disposition of the matter, or the passage of any applicable waiting period under the HSR Act. The parties' obligations under this Agreement shall continue in full force and effect notwithstanding any of the foregoing events.
9.3 Survival of Non-Waiver Protections. The non-waiver protections set forth in Section 2 of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect in perpetuity. The parties agree and stipulate that no Inadvertent Production made during the effectiveness of this Agreement shall constitute a waiver of privilege at any time, regardless of any subsequent termination or expiration of this Agreement, the Commission's investigation, or any other event.
SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 Governing Law. This Agreement shall be governed by and construed in accordance with federal law, including Federal Rule of Evidence 502 and the applicable federal common law of privilege. To the extent state law governs any privilege issue arising under this Agreement, the parties agree that the non-waiver protections of this Agreement shall apply with equal force under applicable state law.
10.2 Modification. This Agreement may be modified, amended, or supplemented only by a written instrument signed by all parties hereto, or their duly authorized representatives. No oral modification, amendment, or waiver of any provision of this Agreement shall be effective.
10.3 Integration. This Agreement, together with the FTC Model Stipulated Protective Order governing FTC File No. 231-0487, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, and communications between the parties, whether written or oral, relating to the treatment of privileged materials in connection with the Second Request and the Commission's investigation.
10.4 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Execution by facsimile or electronic signature (including PDF) shall have the same force and effect as execution by original signature.
10.5 No Admission. Nothing in this Agreement constitutes an admission by any party regarding the existence or non-existence of any privilege, immunity, or protection as to any particular document, communication, or category of documents or communications. The execution of this Agreement shall not be construed as an acknowledgment by the Commission Staff that any particular document is privileged, nor as an acknowledgment by the Producing Parties that any particular document is not privileged. This Agreement is entered into solely for the purpose of establishing procedures for the treatment of inadvertently produced materials and does not constitute, and shall not be construed as, a substantive determination regarding the merits of any privilege claim.
10.6 Notices. All notices, Clawback Notices, Challenge Notices, certifications, and other communications required or permitted under this Agreement shall be in writing and shall be delivered by hand, by overnight courier, by United States mail (postage prepaid), or by electronic mail, and shall be directed as follows:
For the Producing Parties:
Howard Bellamy, Partner Antitrust & Competition Group Calderwood & Harkness LLP 1900 K Street NW, Suite 800 Washington, DC 20006
Email: hbellamy@calderwoodharkness.com
For the FTC Staff:
Lead Staff Attorney Bureau of Competition, Mergers IV Division Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580
Email: [as designated by the Lead Staff Attorney in writing]
Either party may change its designated contact for notices by providing written notice to the other party in accordance with this Section 10.6.
SIGNATURE BLOCKS
IN WITNESS WHEREOF, the parties have executed this Stipulated Non-Waiver and Clawback Agreement as of the date first written above.
FOR THE PRODUCING PARTIES:
CALDERWOOD & HARKNESS LLP on behalf of Solara Digital Infrastructure LP, Solara Digital Infrastructure Fund IV LP, PCS Acquisition Corp., and Meridian Workflow Solutions, Inc.
By: ________
Name: Howard Bellamy
Title: Partner, Antitrust & Competition Group
Date: June 9, 2023
Address:
1900 K Street NW, Suite 800 Washington, DC 20006
FOR THE FEDERAL TRADE COMMISSION STAFF:
BUREAU OF COMPETITION MERGERS IV DIVISION FEDERAL TRADE COMMISSION
By: ________
Name: ________
Title: Lead Staff Attorney, Mergers IV Division
Date: June 9, 2023
Address:
Federal Trade Commission 600 Pennsylvania Avenue NW Washington, DC 20580
ACKNOWLEDGED AND AGREED:
SOLARA DIGITAL INFRASTRUCTURE LP By its General Partner, Solara Digital Infrastructure GP LLC
By: ________
Name: Graham A. Whitfield
Title: Founding Partner & Chief Executive Officer,
Solara Digital Infrastructure GP LLC
Date: June 9, 2023
Address:
200 Tatnall Street, Suite 1400 Wilmington, DE 19801

STIPULATED NON-WAIVER AND CLAWBACK AGREEMENT

PREAMBLE

RECITALS

WHEREAS:

SIGNATURE BLOCKS

FOR THE PRODUCING PARTIES:

FOR THE FEDERAL TRADE COMMISSION STAFF:

BUREAU OF COMPETITION MERGERS IV DIVISION FEDERAL TRADE COMMISSION

ACKNOWLEDGED AND AGREED:

Record

Parties

Dates

Amounts