1041-00003 · Solara Digital Infrastructure LP · Antitrust & Regulatory

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CALDERWOOD & HARKNESS LLP Attorneys at Law

1601 K Street NW Washington, DC 20006 Tel: (202) 555-7800

Fax: (202) 555-7801

www.calderwoodharkness.com

March 11, 2024

VIA EMAIL AND U.S. MAIL

Marcus Elliston Founder & Managing Partner Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, DE 19801

Priya Narasimhan Co-Managing Partner & Chief Investment Officer Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, DE 19801

Re: Expiration of HSR Act Waiting Period — Acquisition of Cloudium Technologies plc (Nasdaq: CLDM) by Solara Digital Infrastructure Fund VI LP

Matter No.: 1041-00003

Dear Mr. Elliston and Ms. Narasimhan:

I. Introduction

We write in connection with our representation of Solara Digital Infrastructure LP ("Solara") and Solara Digital Infrastructure Fund VI LP ("Fund VI") in connection with Fund VI's proposed acquisition of Cloudium Technologies plc ("Cloudium" or the "Company"), a public limited company incorporated under the laws of England and Wales and listed on the Nasdaq Global Select Market under the ticker symbol CLDM. As you know, the acquisition is structured as a reverse triangular merger in which Stratos Merger Sub Inc. ("Merger Sub"), a Delaware corporation and wholly owned subsidiary of Fund VI, will merge with and into Cloudium, with Cloudium surviving as a wholly owned subsidiary of Fund VI, all pursuant to the terms and conditions of the Agreement and Plan of Merger dated January 22, 2024 (the "Merger Agreement").

II. Purpose of This Letter

The purpose of this letter is to confirm that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), 15 U.S.C. § 18a, and the implementing rules and regulations promulgated thereunder at 16 C.F.R. Parts 801–803 (the "HSR Rules"), has expired without the issuance of a request for additional information or documentary material. Accordingly, HSR clearance for the proposed transaction (the "Transaction") has been obtained. The expiration of the HSR waiting period removes a significant regulatory condition to the closing of the Transaction and represents a favorable development in the progression toward consummation of the Merger Agreement.

III. Background of the HSR Filing

A. Identification of Filing Parties

The Premerger Notification and Report Forms (the "HSR Forms") were submitted on behalf of the following persons, as defined in the HSR Act and HSR Rules:

Acquiring Person: Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership (EIN: 87-4523190), acting through its general partner, Solara Fund VI GP LLC, a Delaware limited liability company. For purposes of the HSR Act, the Ultimate Parent Entity of the acquiring person is Solara Digital Infrastructure Fund VI LP.

Acquired Person: Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Companies House Company No. 09734521; U.S. Employer Identification Number: 83-2196754), listed on the Nasdaq Global Select Market under the ticker symbol CLDM. Cloudium serves as its own Ultimate Parent Entity for HSR Act reporting purposes, given that no single person holds 50% or more of the outstanding voting securities of the Company.

B. Description of the Transaction

The Transaction involves Fund VI's acquisition of 100% of the outstanding common stock of Cloudium Technologies plc, consisting of approximately 184,200,000 shares of common stock (the "Shares"), at a per-share merger consideration of approximately $36.92, for an aggregate transaction value of approximately $6,800,000,000 (the "Transaction Value"). As noted above, the Transaction is structured as a reverse triangular merger pursuant to the Merger Agreement, in which Merger Sub, a newly formed Delaware corporation and wholly owned subsidiary of Fund VI, will merge with and into Cloudium, with Cloudium surviving as a wholly owned subsidiary of Fund VI. Upon consummation of the merger, each outstanding Share (other than shares held by Cloudium as treasury stock, shares owned by Fund VI or Merger Sub, and shares as to which appraisal rights have been properly exercised and not withdrawn) will be converted into the right to receive the per-share merger consideration in cash, without interest, subject to any applicable withholding taxes.

The Transaction Value substantially exceeds the applicable HSR Act filing thresholds in effect for 2024, including the "size of transaction" threshold of $111.4 million and, given the respective sizes of the acquiring and acquired persons, the applicable "size of person" thresholds. Accordingly, a premerger notification filing was required prior to consummation of the Transaction.

C. Filing Date and Submission Details

The HSR Forms were filed with the Federal Trade Commission (the "FTC") and the Antitrust Division of the U.S. Department of Justice (the "DOJ") on February 9, 2024. The filing was prepared and submitted by Calderwood & Harkness LLP on behalf of the acquiring person, with the undersigned serving as lead antitrust partner responsible for the HSR filing and agency liaison. The requisite filing fee of $2,250,000, calculated based on the Transaction Value in accordance with the fee schedule set forth in the Consolidated Appropriations Act, 2023, and the FTC's implementing regulations, was paid in connection with the filing.

D. Voluntary Submission of Additional Market Data

On February 20, 2024, at the request of FTC staff assigned to review the Transaction, Calderwood & Harkness submitted a voluntary supplemental information package to the FTC. This submission included additional market data, competitive landscape analyses, and third-party industry reports regarding the cloud enterprise resource planning (ERP) and customer relationship management (CRM) software markets in which Cloudium operates. The supplemental submission was designed to proactively address potential competitive overlap questions and to provide the reviewing staff with a comprehensive understanding of the relevant competitive dynamics. We note that this voluntary submission was not a formal "Second Request" within the meaning of the HSR Act, but rather an informal request for additional context that the FTC staff indicated would facilitate their review of the Transaction during the initial waiting period.

IV. Expiration of the Waiting Period

We are pleased to confirm the following with respect to the HSR Act waiting period applicable to the Transaction:

1. Commencement of the Waiting Period. The initial 30-calendar-day waiting period under Section 7A(b)(1)(B) of the Clayton Act, as amended by the HSR Act, 15 U.S.C. § 18a(b)(1)(B), commenced upon the filing of the HSR Forms on February 9, 2024. Because this Transaction involves a cash tender offer or merger (and is not subject to the shortened 15-day waiting period applicable to certain cash tender offers under 15 U.S.C. § 18a(b)(1)(A)), the standard 30-day waiting period applied.

2. Expiration of the Waiting Period. The initial 30-day waiting period expired at 11:59 p.m. Eastern Time on Sunday, March 10, 2024. However, because March 10, 2024 fell on a Sunday, the waiting period was extended to 11:59 p.m. Eastern Time on Monday, March 11, 2024, in accordance with 16 C.F.R. § 803.1 and the FTC's standard practice regarding computation of time when the last day of the waiting period falls on a weekend or federal holiday.

3. No Second Request Issued. Neither the FTC nor the DOJ issued a Request for Additional Information and Documentary Material (commonly referred to as a "Second Request") pursuant to 15 U.S.C. § 18a(e)(1)(A) during the initial waiting period. As you are aware, the issuance of a Second Request would have extended the waiting period until 30 days after substantial compliance with such a request. No Second Request was issued in connection with this Transaction.

4. No Tolling or Extension. No other communication was received from either the FTC or the DOJ that would have had the effect of extending, tolling, or otherwise modifying the initial 30-day waiting period. No voluntary timing agreement or pull-and-refile arrangement was entered into between the filing parties and either agency.

5. Conclusion. Based on the foregoing, we confirm that the waiting period under the HSR Act applicable to the Transaction has expired as of 11:59 p.m. Eastern Time on March 11, 2024. The parties to the Merger Agreement are now free to consummate the Transaction insofar as compliance with the HSR Act is concerned, subject to satisfaction or waiver of all other conditions to closing set forth in the Merger Agreement.

V. Remaining Regulatory Conditions

A. HSR Condition Satisfied

The expiration of the HSR waiting period satisfies one of the regulatory conditions precedent to closing under Article VII of the Merger Agreement, which requires that the applicable waiting period (and any extensions thereof) under the HSR Act shall have expired or been terminated. This condition has now been satisfied.

B. UK Competition and Markets Authority (CMA)

As of the date of this letter, the following regulatory condition remains outstanding:

CMA Merger Review. A Merger Notice Form was submitted to the UK Competition and Markets Authority (the "CMA") on February 12, 2024, and the CMA has assigned the matter Case No. ME/7184/24. The CMA's Phase 1 review of the Transaction is currently ongoing. We anticipate that the CMA's Phase 1 clearance decision will be issued in the coming weeks, consistent with the CMA's customary 40-working-day Phase 1 review timeline. Our UK regulatory counsel, Albright & Kerr LLP, London (lead partner: Fiona McAllister), is coordinating closely with Calderwood & Harkness on this workstream. A supplemental response to a CMA information request (the "Section 109 Notice") was submitted on March 1, 2024, providing additional data regarding the competitive conditions in the UK cloud infrastructure and SaaS markets. We will keep you apprised of all developments in the CMA proceeding and will provide a confirmation letter similar to this one upon receipt of CMA clearance.

C. Jurisdictions Where No Filing Was Required

In the course of our regulatory due diligence, we assessed the filing and notification requirements in a number of additional jurisdictions. Based on our analysis, we determined that no additional antitrust, competition, or foreign investment filings were required in connection with the Transaction, as follows:

Committee on Foreign Investment in the United States (CFIUS). We determined that a voluntary notice to CFIUS was not warranted based on our assessment that Cloudium does not constitute a "TID U.S. business" within the meaning of 31 C.F.R. Part 800 (i.e., a business that produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; performs functions related to covered investment critical infrastructure; or maintains or collects sensitive personal data of U.S. citizens) and does not hold "covered real estate" within the meaning of 31 C.F.R. Part 802. This assessment is set forth in detail in our memorandum to Solara dated November 30, 2023, which was reviewed and approved by Solara's internal legal team and the Transaction Committee of Fund VI.

EU Merger Regulation (Council Regulation (EC) No 139/2004). A filing with the European Commission under the EU Merger Regulation was not required because Cloudium's aggregate EU-wide revenues fall below the applicable turnover thresholds set forth in Articles 1(2) and 1(3) of the EU Merger Regulation. Specifically, Cloudium's combined aggregate EU-wide turnover for the most recent completed fiscal year did not exceed €250 million, and the Transaction did not meet the two-thirds rule exception or the alternative thresholds under Article 1(3). Our detailed jurisdictional analysis is set forth in our memorandum dated December 3, 2023.

EU Foreign Subsidies Regulation (Regulation (EU) 2022/2560) (the "FSR"). We determined that notification under the FSR was not triggered because the applicable financial contribution thresholds were not met. Specifically, the aggregate financial contributions received by Fund VI and its portfolio companies from non-EU third countries did not exceed €50 million in the three fiscal years preceding the notification, and the applicable turnover thresholds for the acquired entity were not exceeded. Our analysis is detailed in our memorandum dated December 3, 2023.

German Foreign Direct Investment Screening (Außenwirtschaftsverordnung, "AWV"). We determined that no notification obligation arises under the German foreign trade and payments regime because Cloudium's German subsidiary, Cloudium Solutions GmbH, does not operate in a sensitive sector enumerated under Section 55(1) or Section 60(1) of the AWV, nor does it develop or manufacture products or perform services designated as critical or defense-related. Our analysis is set forth in our memorandum dated December 8, 2023.

Competition Commission of India (CCI) / Indian Foreign Direct Investment (FDI). We determined that no notification to the CCI is required because Cloudium's Indian subsidiary, Cloudium Technologies India Pvt. Ltd., does not meet the applicable asset or turnover thresholds for a mandatory CCI filing under Sections 5 and 6 of the Competition Act, 2002, as amended. Additionally, we determined that prior FDI approval from the Indian government is not required for the downstream change of control of Cloudium Technologies India Pvt. Ltd. resulting from the Transaction, as the relevant sector is not subject to prior government approval under the Consolidated FDI Policy. Our analysis is set forth in our memorandum dated December 10, 2023.

We note that the foregoing assessments were made based on the facts and circumstances known to us as of the respective dates of the referenced memoranda. Should the Transaction structure, consideration, or the business operations of Cloudium or its subsidiaries change materially prior to closing, we would recommend that these assessments be revisited.

VI. Practical Implications and Next Steps

With HSR clearance now obtained, we recommend that the parties focus their efforts on satisfying the remaining conditions to closing under the Merger Agreement, including the following:

1. CMA Phase 1 Clearance (Pending). As described in Section V above, the CMA's Phase 1 review is ongoing. We are in regular communication with Albright & Kerr LLP and the CMA case team and will provide prompt notice of any developments, including the anticipated clearance decision.

2. Cloudium Stockholder Approval. Pursuant to the terms of the Merger Agreement, the Transaction is subject to approval by Cloudium's stockholders at a special meeting of stockholders. The preliminary proxy statement was filed with the Securities and Exchange Commission on Form PREM14A, and we understand that the definitive proxy statement on Schedule 14A is targeted for filing on or about April 15, 2024, following completion of the SEC review process. We are coordinating with our colleagues in the M&A practice on the proxy timeline and related matters.

3. Satisfaction or Waiver of All Other Conditions Precedent. The parties should continue to work toward the satisfaction or, where applicable, waiver of all other conditions precedent to closing set forth in Article VII of the Merger Agreement, including customary conditions relating to the accuracy of representations and warranties, compliance with covenants, absence of legal impediments, and the delivery of required closing certificates and other deliverables.

We also wish to draw your attention to the following timing considerations:

Outside Date. The Merger Agreement provides for an outside date (the "Outside Date") of June 30, 2024, after which either party may terminate the Merger Agreement if the closing has not occurred (subject to certain exceptions and extension rights set forth therein). Given the current trajectory of the remaining conditions, we believe that closing in advance of the Outside Date remains achievable, but continued diligence on the remaining workstreams is advisable.

Ticking Fee on Debt Commitments. We note that the ticking fee on the undrawn Term Loan B commitments under the Debt Commitment Letter dated January 22, 2024, by and among Solara Digital Infrastructure Fund VI LP, Meridian Atlantic Bank, N.A., and Ironclad Capital Markets LLC (the "Debt Commitment Letter"), commences on April 22, 2024 — ninety (90) days after the date of signing of the Merger Agreement. The ticking fee, which accrues at a rate specified in the Debt Commitment Letter on the aggregate undrawn commitments, creates an economic incentive to consummate the closing as promptly as practicable after all conditions to closing have been satisfied or waived. We recommend that the deal team continue to coordinate closely with Meridian Atlantic Bank, N.A. and Ironclad Capital Markets LLC regarding the debt financing timeline and any updates to the closing schedule.

Calderwood & Harkness LLP will continue to monitor all regulatory developments relevant to the Transaction and will provide timely updates as appropriate. We will provide a confirmation letter substantially similar to this letter upon receipt of CMA Phase 1 clearance.

VII. Disclaimer and Limitation

This letter addresses solely the HSR Act premerger notification filing and the expiration of the applicable waiting period under the HSR Act in connection with the Transaction. This letter does not constitute a legal opinion on any other matter, including without limitation the antitrust or competition law implications of the Transaction under any other federal, state, or foreign law, the securities law implications of the Transaction, or the enforceability or interpretation of any provision of the Merger Agreement or any ancillary transaction document.

We note that the expiration of the HSR Act waiting period does not preclude the DOJ or the FTC from investigating or challenging the Transaction after consummation. 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, both the DOJ and the FTC retain the authority to challenge mergers and acquisitions at any time, including after the expiration of the HSR waiting period and after the closing of a transaction. However, post-consummation challenges are uncommon, particularly where no Second Request was issued during the initial waiting period, and we are not aware of any indication from either agency that it has concerns regarding the Transaction. Nothing in this letter should be construed as a guaranty that no such challenge will be brought.

This letter is provided solely for the information and benefit of Solara Digital Infrastructure LP, Solara Digital Infrastructure Fund VI LP, and their respective officers, directors, partners, members, and authorized agents, and may not be relied upon by, furnished to, or used by any third party without our prior written consent.

VIII. Closing

We are pleased to report this favorable development in the Transaction and appreciate your continued confidence in Calderwood & Harkness LLP throughout this process. Please do not hesitate to contact the undersigned at (202) 555-7814 or eforsythe@calderwoodharkness.com, or Harrison Wexford at (212) 555-6200 or hwexford@calderwoodharkness.com, should you have any questions regarding this letter or any other aspect of the Transaction.

We look forward to continuing to work with you and the entire Solara team toward a successful closing of the acquisition of Cloudium Technologies plc.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Elaine Forsythe Partner, Antitrust & Competition Calderwood & Harkness LLP 1601 K Street NW Washington, DC 20006 Tel: (202) 555-7814

Email: eforsythe@calderwoodharkness.com

cc:

Harrison Wexford, Partner, Mergers & Acquisitions Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022

Tiffany Rosenthal, Associate, Mergers & Acquisitions Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022

Enclosures: None. We note that, consistent with longstanding FTC and DOJ practice, neither agency issues a formal clearance letter upon the expiration of the initial 30-day HSR waiting period. Clearance is confirmed by the absence of a Second Request prior to the expiration of the waiting period. This letter serves as the firm's confirmation of that expiration for the client's records and for purposes of documenting satisfaction of the HSR condition under the Merger Agreement.

CALDERWOOD & HARKNESS LLP Attorneys at Law
1601 K Street NW Washington, DC 20006 Tel: (202) 555-7800
Fax: (202) 555-7801
www.calderwoodharkness.com
March 11, 2024
VIA EMAIL AND U.S. MAIL
Marcus Elliston Founder & Managing Partner Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, DE 19801
Priya Narasimhan Co-Managing Partner & Chief Investment Officer Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, DE 19801
Re: Expiration of HSR Act Waiting Period — Acquisition of Cloudium Technologies plc (Nasdaq: CLDM) by Solara Digital Infrastructure Fund VI LP
Matter No.: 1041-00003
Dear Mr. Elliston and Ms. Narasimhan:
I. Introduction
We write in connection with our representation of Solara Digital Infrastructure LP ("Solara") and Solara Digital Infrastructure Fund VI LP ("Fund VI") in connection with Fund VI's proposed acquisition of Cloudium Technologies plc ("Cloudium" or the "Company"), a public limited company incorporated under the laws of England and Wales and listed on the Nasdaq Global Select Market under the ticker symbol CLDM. As you know, the acquisition is structured as a reverse triangular merger in which Stratos Merger Sub Inc. ("Merger Sub"), a Delaware corporation and wholly owned subsidiary of Fund VI, will merge with and into Cloudium, with Cloudium surviving as a wholly owned subsidiary of Fund VI, all pursuant to the terms and conditions of the Agreement and Plan of Merger dated January 22, 2024 (the "Merger Agreement").
II. Purpose of This Letter
The purpose of this letter is to confirm that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), 15 U.S.C. § 18a, and the implementing rules and regulations promulgated thereunder at 16 C.F.R. Parts 801–803 (the "HSR Rules"), has expired without the issuance of a request for additional information or documentary material. Accordingly, HSR clearance for the proposed transaction (the "Transaction") has been obtained. The expiration of the HSR waiting period removes a significant regulatory condition to the closing of the Transaction and represents a favorable development in the progression toward consummation of the Merger Agreement.
III. Background of the HSR Filing
A. Identification of Filing Parties
The Premerger Notification and Report Forms (the "HSR Forms") were submitted on behalf of the following persons, as defined in the HSR Act and HSR Rules:
Acquiring Person: Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership (EIN: 87-4523190), acting through its general partner, Solara Fund VI GP LLC, a Delaware limited liability company. For purposes of the HSR Act, the Ultimate Parent Entity of the acquiring person is Solara Digital Infrastructure Fund VI LP.
Acquired Person: Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Companies House Company No. 09734521; U.S. Employer Identification Number: 83-2196754), listed on the Nasdaq Global Select Market under the ticker symbol CLDM. Cloudium serves as its own Ultimate Parent Entity for HSR Act reporting purposes, given that no single person holds 50% or more of the outstanding voting securities of the Company.
B. Description of the Transaction
The Transaction involves Fund VI's acquisition of 100% of the outstanding common stock of Cloudium Technologies plc, consisting of approximately 184,200,000 shares of common stock (the "Shares"), at a per-share merger consideration of approximately $36.92, for an aggregate transaction value of approximately $6,800,000,000 (the "Transaction Value"). As noted above, the Transaction is structured as a reverse triangular merger pursuant to the Merger Agreement, in which Merger Sub, a newly formed Delaware corporation and wholly owned subsidiary of Fund VI, will merge with and into Cloudium, with Cloudium surviving as a wholly owned subsidiary of Fund VI. Upon consummation of the merger, each outstanding Share (other than shares held by Cloudium as treasury stock, shares owned by Fund VI or Merger Sub, and shares as to which appraisal rights have been properly exercised and not withdrawn) will be converted into the right to receive the per-share merger consideration in cash, without interest, subject to any applicable withholding taxes.
The Transaction Value substantially exceeds the applicable HSR Act filing thresholds in effect for 2024, including the "size of transaction" threshold of $111.4 million and, given the respective sizes of the acquiring and acquired persons, the applicable "size of person" thresholds. Accordingly, a premerger notification filing was required prior to consummation of the Transaction.
C. Filing Date and Submission Details
The HSR Forms were filed with the Federal Trade Commission (the "FTC") and the Antitrust Division of the U.S. Department of Justice (the "DOJ") on February 9, 2024. The filing was prepared and submitted by Calderwood & Harkness LLP on behalf of the acquiring person, with the undersigned serving as lead antitrust partner responsible for the HSR filing and agency liaison. The requisite filing fee of $2,250,000, calculated based on the Transaction Value in accordance with the fee schedule set forth in the Consolidated Appropriations Act, 2023, and the FTC's implementing regulations, was paid in connection with the filing.
D. Voluntary Submission of Additional Market Data
On February 20, 2024, at the request of FTC staff assigned to review the Transaction, Calderwood & Harkness submitted a voluntary supplemental information package to the FTC. This submission included additional market data, competitive landscape analyses, and third-party industry reports regarding the cloud enterprise resource planning (ERP) and customer relationship management (CRM) software markets in which Cloudium operates. The supplemental submission was designed to proactively address potential competitive overlap questions and to provide the reviewing staff with a comprehensive understanding of the relevant competitive dynamics. We note that this voluntary submission was not a formal "Second Request" within the meaning of the HSR Act, but rather an informal request for additional context that the FTC staff indicated would facilitate their review of the Transaction during the initial waiting period.
IV. Expiration of the Waiting Period
We are pleased to confirm the following with respect to the HSR Act waiting period applicable to the Transaction:
1. Commencement of the Waiting Period. The initial 30-calendar-day waiting period under Section 7A(b)(1)(B) of the Clayton Act, as amended by the HSR Act, 15 U.S.C. § 18a(b)(1)(B), commenced upon the filing of the HSR Forms on February 9, 2024. Because this Transaction involves a cash tender offer or merger (and is not subject to the shortened 15-day waiting period applicable to certain cash tender offers under 15 U.S.C. § 18a(b)(1)(A)), the standard 30-day waiting period applied.
2. Expiration of the Waiting Period. The initial 30-day waiting period expired at 11:59 p.m. Eastern Time on Sunday, March 10, 2024. However, because March 10, 2024 fell on a Sunday, the waiting period was extended to 11:59 p.m. Eastern Time on Monday, March 11, 2024, in accordance with 16 C.F.R. § 803.1 and the FTC's standard practice regarding computation of time when the last day of the waiting period falls on a weekend or federal holiday.
3. No Second Request Issued. Neither the FTC nor the DOJ issued a Request for Additional Information and Documentary Material (commonly referred to as a "Second Request") pursuant to 15 U.S.C. § 18a(e)(1)(A) during the initial waiting period. As you are aware, the issuance of a Second Request would have extended the waiting period until 30 days after substantial compliance with such a request. No Second Request was issued in connection with this Transaction.
4. No Tolling or Extension. No other communication was received from either the FTC or the DOJ that would have had the effect of extending, tolling, or otherwise modifying the initial 30-day waiting period. No voluntary timing agreement or pull-and-refile arrangement was entered into between the filing parties and either agency.
5. Conclusion. Based on the foregoing, we confirm that the waiting period under the HSR Act applicable to the Transaction has expired as of 11:59 p.m. Eastern Time on March 11, 2024. The parties to the Merger Agreement are now free to consummate the Transaction insofar as compliance with the HSR Act is concerned, subject to satisfaction or waiver of all other conditions to closing set forth in the Merger Agreement.
V. Remaining Regulatory Conditions
A. HSR Condition Satisfied
The expiration of the HSR waiting period satisfies one of the regulatory conditions precedent to closing under Article VII of the Merger Agreement, which requires that the applicable waiting period (and any extensions thereof) under the HSR Act shall have expired or been terminated. This condition has now been satisfied.
B. UK Competition and Markets Authority (CMA)
As of the date of this letter, the following regulatory condition remains outstanding:
CMA Merger Review. A Merger Notice Form was submitted to the UK Competition and Markets Authority (the "CMA") on February 12, 2024, and the CMA has assigned the matter Case No. ME/7184/24. The CMA's Phase 1 review of the Transaction is currently ongoing. We anticipate that the CMA's Phase 1 clearance decision will be issued in the coming weeks, consistent with the CMA's customary 40-working-day Phase 1 review timeline. Our UK regulatory counsel, Albright & Kerr LLP, London (lead partner: Fiona McAllister), is coordinating closely with Calderwood & Harkness on this workstream. A supplemental response to a CMA information request (the "Section 109 Notice") was submitted on March 1, 2024, providing additional data regarding the competitive conditions in the UK cloud infrastructure and SaaS markets. We will keep you apprised of all developments in the CMA proceeding and will provide a confirmation letter similar to this one upon receipt of CMA clearance.
C. Jurisdictions Where No Filing Was Required
In the course of our regulatory due diligence, we assessed the filing and notification requirements in a number of additional jurisdictions. Based on our analysis, we determined that no additional antitrust, competition, or foreign investment filings were required in connection with the Transaction, as follows:
Committee on Foreign Investment in the United States (CFIUS). We determined that a voluntary notice to CFIUS was not warranted based on our assessment that Cloudium does not constitute a "TID U.S. business" within the meaning of 31 C.F.R. Part 800 (i.e., a business that produces, designs, tests, manufactures, fabricates, or develops one or more critical technologies; performs functions related to covered investment critical infrastructure; or maintains or collects sensitive personal data of U.S. citizens) and does not hold "covered real estate" within the meaning of 31 C.F.R. Part 802. This assessment is set forth in detail in our memorandum to Solara dated November 30, 2023, which was reviewed and approved by Solara's internal legal team and the Transaction Committee of Fund VI.
EU Merger Regulation (Council Regulation (EC) No 139/2004). A filing with the European Commission under the EU Merger Regulation was not required because Cloudium's aggregate EU-wide revenues fall below the applicable turnover thresholds set forth in Articles 1(2) and 1(3) of the EU Merger Regulation. Specifically, Cloudium's combined aggregate EU-wide turnover for the most recent completed fiscal year did not exceed €250 million, and the Transaction did not meet the two-thirds rule exception or the alternative thresholds under Article 1(3). Our detailed jurisdictional analysis is set forth in our memorandum dated December 3, 2023.
EU Foreign Subsidies Regulation (Regulation (EU) 2022/2560) (the "FSR"). We determined that notification under the FSR was not triggered because the applicable financial contribution thresholds were not met. Specifically, the aggregate financial contributions received by Fund VI and its portfolio companies from non-EU third countries did not exceed €50 million in the three fiscal years preceding the notification, and the applicable turnover thresholds for the acquired entity were not exceeded. Our analysis is detailed in our memorandum dated December 3, 2023.
German Foreign Direct Investment Screening (Außenwirtschaftsverordnung, "AWV"). We determined that no notification obligation arises under the German foreign trade and payments regime because Cloudium's German subsidiary, Cloudium Solutions GmbH, does not operate in a sensitive sector enumerated under Section 55(1) or Section 60(1) of the AWV, nor does it develop or manufacture products or perform services designated as critical or defense-related. Our analysis is set forth in our memorandum dated December 8, 2023.
Competition Commission of India (CCI) / Indian Foreign Direct Investment (FDI). We determined that no notification to the CCI is required because Cloudium's Indian subsidiary, Cloudium Technologies India Pvt. Ltd., does not meet the applicable asset or turnover thresholds for a mandatory CCI filing under Sections 5 and 6 of the Competition Act, 2002, as amended. Additionally, we determined that prior FDI approval from the Indian government is not required for the downstream change of control of Cloudium Technologies India Pvt. Ltd. resulting from the Transaction, as the relevant sector is not subject to prior government approval under the Consolidated FDI Policy. Our analysis is set forth in our memorandum dated December 10, 2023.
We note that the foregoing assessments were made based on the facts and circumstances known to us as of the respective dates of the referenced memoranda. Should the Transaction structure, consideration, or the business operations of Cloudium or its subsidiaries change materially prior to closing, we would recommend that these assessments be revisited.
VI. Practical Implications and Next Steps
With HSR clearance now obtained, we recommend that the parties focus their efforts on satisfying the remaining conditions to closing under the Merger Agreement, including the following:
1. CMA Phase 1 Clearance (Pending). As described in Section V above, the CMA's Phase 1 review is ongoing. We are in regular communication with Albright & Kerr LLP and the CMA case team and will provide prompt notice of any developments, including the anticipated clearance decision.
2. Cloudium Stockholder Approval. Pursuant to the terms of the Merger Agreement, the Transaction is subject to approval by Cloudium's stockholders at a special meeting of stockholders. The preliminary proxy statement was filed with the Securities and Exchange Commission on Form PREM14A, and we understand that the definitive proxy statement on Schedule 14A is targeted for filing on or about April 15, 2024, following completion of the SEC review process. We are coordinating with our colleagues in the M&A practice on the proxy timeline and related matters.
3. Satisfaction or Waiver of All Other Conditions Precedent. The parties should continue to work toward the satisfaction or, where applicable, waiver of all other conditions precedent to closing set forth in Article VII of the Merger Agreement, including customary conditions relating to the accuracy of representations and warranties, compliance with covenants, absence of legal impediments, and the delivery of required closing certificates and other deliverables.
We also wish to draw your attention to the following timing considerations:
Outside Date. The Merger Agreement provides for an outside date (the "Outside Date") of June 30, 2024, after which either party may terminate the Merger Agreement if the closing has not occurred (subject to certain exceptions and extension rights set forth therein). Given the current trajectory of the remaining conditions, we believe that closing in advance of the Outside Date remains achievable, but continued diligence on the remaining workstreams is advisable.
Ticking Fee on Debt Commitments. We note that the ticking fee on the undrawn Term Loan B commitments under the Debt Commitment Letter dated January 22, 2024, by and among Solara Digital Infrastructure Fund VI LP, Meridian Atlantic Bank, N.A., and Ironclad Capital Markets LLC (the "Debt Commitment Letter"), commences on April 22, 2024 — ninety (90) days after the date of signing of the Merger Agreement. The ticking fee, which accrues at a rate specified in the Debt Commitment Letter on the aggregate undrawn commitments, creates an economic incentive to consummate the closing as promptly as practicable after all conditions to closing have been satisfied or waived. We recommend that the deal team continue to coordinate closely with Meridian Atlantic Bank, N.A. and Ironclad Capital Markets LLC regarding the debt financing timeline and any updates to the closing schedule.
Calderwood & Harkness LLP will continue to monitor all regulatory developments relevant to the Transaction and will provide timely updates as appropriate. We will provide a confirmation letter substantially similar to this letter upon receipt of CMA Phase 1 clearance.
VII. Disclaimer and Limitation
This letter addresses solely the HSR Act premerger notification filing and the expiration of the applicable waiting period under the HSR Act in connection with the Transaction. This letter does not constitute a legal opinion on any other matter, including without limitation the antitrust or competition law implications of the Transaction under any other federal, state, or foreign law, the securities law implications of the Transaction, or the enforceability or interpretation of any provision of the Merger Agreement or any ancillary transaction document.
We note that the expiration of the HSR Act waiting period does not preclude the DOJ or the FTC from investigating or challenging the Transaction after consummation. 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, both the DOJ and the FTC retain the authority to challenge mergers and acquisitions at any time, including after the expiration of the HSR waiting period and after the closing of a transaction. However, post-consummation challenges are uncommon, particularly where no Second Request was issued during the initial waiting period, and we are not aware of any indication from either agency that it has concerns regarding the Transaction. Nothing in this letter should be construed as a guaranty that no such challenge will be brought.
This letter is provided solely for the information and benefit of Solara Digital Infrastructure LP, Solara Digital Infrastructure Fund VI LP, and their respective officers, directors, partners, members, and authorized agents, and may not be relied upon by, furnished to, or used by any third party without our prior written consent.
VIII. Closing
We are pleased to report this favorable development in the Transaction and appreciate your continued confidence in Calderwood & Harkness LLP throughout this process. Please do not hesitate to contact the undersigned at (202) 555-7814 or eforsythe@calderwoodharkness.com, or Harrison Wexford at (212) 555-6200 or hwexford@calderwoodharkness.com, should you have any questions regarding this letter or any other aspect of the Transaction.
We look forward to continuing to work with you and the entire Solara team toward a successful closing of the acquisition of Cloudium Technologies plc.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Elaine Forsythe Partner, Antitrust & Competition Calderwood & Harkness LLP 1601 K Street NW Washington, DC 20006 Tel: (202) 555-7814
Email: eforsythe@calderwoodharkness.com
cc:
Harrison Wexford, Partner, Mergers & Acquisitions Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Tiffany Rosenthal, Associate, Mergers & Acquisitions Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Enclosures: None. We note that, consistent with longstanding FTC and DOJ practice, neither agency issues a formal clearance letter upon the expiration of the initial 30-day HSR waiting period. Clearance is confirmed by the absence of a Second Request prior to the expiration of the waiting period. This letter serves as the firm's confirmation of that expiration for the client's records and for purposes of documenting satisfaction of the HSR condition under the Merger Agreement.

CALDERWOOD & HARKNESS LLP Attorneys at Law

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