PRELIMINARY DUE DILIGENCE REQUEST LIST
CONFIDENTIAL — ATTORNEY WORK PRODUCT — PRIVILEGED
Prepared by
CALDERWOOD & HARKNESS LLP 599 Lexington Avenue New York, New York 10022
Matter No.: 1041-00003
September 10, 2023
SENT TO:
Ridgeway Phelps & Sato LLP 375 Park Avenue New York, New York 10152
and
Ridgeway Phelps & Sato LLP 1 Angel Court London EC2R 7HJ United Kingdom
ATTENTION:
Catherine Answorth, Esq. (New York) Alistair Fenn, Esq. (London)
ON BEHALF OF:
Cloudium Technologies plc (Company No. 09734521) 45 Broadwick Street London W1F 0DB United Kingdom
United States Headquarters: 600 Townsend Street, Suite 800 San Francisco, California 94103
PREPARED ON BEHALF OF BUYER:
Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, Delaware 19801
CALDERWOOD & HARKNESS LLP DEAL TEAM:
Harrison Wexford — Responsible Partner Tiffany Rosenthal — Lead Associate Andrew Fitzpatrick — Working Associate
This Preliminary Due Diligence Request List is delivered pursuant to and subject to the terms and conditions of the Confidentiality / Non-Disclosure Agreement dated September 5, 2023 (the "NDA"), by and between Solara Digital Infrastructure LP and Cloudium Technologies plc. This document constitutes attorney work product and contains information protected by the attorney-client privilege. It is intended solely for the use of the named addressees and their authorized representatives. Any unauthorized review, use, disclosure, or distribution is strictly prohibited. If you have received this document in error, please notify Calderwood & Harkness LLP immediately.
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INTRODUCTORY INSTRUCTIONS AND GENERAL NOTES
This Preliminary Due Diligence Request List (the "Request List") sets forth the initial categories of documents and information that Solara Digital Infrastructure LP ("Buyer") requests in connection with its due diligence review of Cloudium Technologies plc, together with all of its direct and indirect subsidiaries (collectively, the "Company" or "Cloudium"). This Request List is preliminary in nature and is not intended to be exhaustive. Buyer expressly reserves the right to issue supplemental due diligence requests as the review process progresses. Without limiting the foregoing, Buyer anticipates that subsequent supplemental request lists will cover intellectual property and technology matters, regulatory and government contracts, and employee benefits and compensation in substantially greater detail.
All documents, data, and information responsive to the requests set forth herein should be posted to the virtual data room (the "Data Room") established for purposes of this transaction. Data Room access credentials were provided to Calderwood & Harkness LLP on September 18, 2023. The Company is requested to organize documents in the Data Room in a manner that corresponds to the numbered request categories set forth below, and to provide an organizational index or Data Room index that maps each uploaded document or folder to the applicable request number(s) in this Request List.
Unless otherwise specified, the requests contained herein cover Cloudium Technologies plc and all of its subsidiaries, including without limitation the following entities:
(a) Cloudium Technologies UK Ltd. (Company No. 11287456), organized under the laws of England and Wales, with its registered office in London, United Kingdom;
(b) Cloudium Technologies India Pvt. Ltd., organized under the laws of India, with its registered office in Bangalore, Karnataka, India; and
(c) Cloudium Solutions GmbH, organized under the laws of the Federal Republic of Germany, with its registered office in Berlin, Germany.
The term "subsidiary" or "subsidiaries" as used herein includes each of the entities listed above, as well as any other entity directly or indirectly controlled by Cloudium Technologies plc, regardless of whether such entity is wholly owned or partially owned.
Unless otherwise specified, all documents and information should cover at minimum the prior five (5) fiscal years (i.e., from and including the fiscal year ended September 30, 2019, through the present). For the avoidance of doubt, the Company's fiscal year ends on September 30 of each calendar year. Where requests specify a different look-back period, that specified period shall control.
Documents produced in languages other than English should be accompanied by certified English translations. To the extent that certified translations cannot be obtained within the time frames contemplated herein, the Company may produce the original-language document together with a summary English translation, provided that full certified translations are produced promptly thereafter.
For reference, Cloudium Technologies plc is listed on the Nasdaq Global Select Market under the ticker symbol "CLDM."
All references to "material" in this Request List generally mean contracts, arrangements, commitments, or other items involving amounts in excess of $1,000,000, individually or in the aggregate, or that are otherwise significant to the Company's business, financial condition, results of operations, or prospects. The Company is requested to apply reasonable judgment in determining materiality and to err on the side of inclusion where the materiality of a particular item is unclear.
If any documents or information responsive to this Request List are withheld on the grounds of attorney-client privilege, work product doctrine, or any other applicable privilege, the Company is requested to provide a privilege log identifying each withheld document with sufficient detail to permit an assessment of the claimed privilege, including: (i) the date of the document; (ii) the author(s) and recipient(s); (iii) a brief description of the subject matter; and (iv) the specific privilege asserted.
The Company is further requested to identify any documents or categories of information that are not available or that cannot be produced, and to provide an explanation of the reasons for any such unavailability.
All monetary amounts in this Request List are expressed in United States Dollars unless otherwise indicated.
I. CORPORATE ORGANIZATION AND GOVERNANCE
A. Formation and Organizational Documents
Request No. 1. Certificates of incorporation, articles of association, memorandum of association, and any equivalent formation or constitutional documents for Cloudium Technologies plc and each of its subsidiaries, including all amendments, restatements, certificates of amendment, resolutions altering share capital, and any other modifications thereto, from the date of formation through the present. This request covers, without limitation:
(a) Cloudium Technologies plc (Company No. 09734521);
(b) Cloudium Technologies UK Ltd. (Company No. 11287456);
(c) Cloudium Technologies India Pvt. Ltd.; and
(d) Cloudium Solutions GmbH.
Request No. 2. Bylaws, articles of association (as currently in effect), or equivalent governing documents for Cloudium Technologies plc and each of its subsidiaries, including all amendments and restatements. To the extent that any such documents have been amended or restated at any time during the prior five fiscal years, please provide both the current version and all prior versions in effect during that period.
Request No. 3. Certificates of good standing, certificates of existence, certificates of compliance, or equivalent documentation from the relevant governmental authority in each jurisdiction of organization and each jurisdiction in which the Company or any subsidiary is qualified or registered to do business. This request specifically includes, without limitation:
(a) England and Wales (Cloudium Technologies plc and Cloudium Technologies UK Ltd.);
(b) The State of Delaware, if Cloudium Technologies plc or any subsidiary is registered or qualified to do business therein;
(c) The State of California, to the extent applicable;
(d) Karnataka, India (Cloudium Technologies India Pvt. Ltd.); and
(e) Berlin, Germany (Cloudium Solutions GmbH), including any Handelsregister (commercial register) extracts.
Certificates should be dated no earlier than thirty (30) days prior to the date of production.
Request No. 4. A complete organizational chart showing Cloudium Technologies plc as the ultimate parent entity, together with all direct and indirect subsidiaries, branches, divisions, joint ventures, and other affiliated entities. The organizational chart should indicate, for each entity:
(a) the full legal name of the entity;
(b) the jurisdiction of formation or incorporation;
(c) the percentage of equity ownership held directly or indirectly by Cloudium Technologies plc;
(d) any minority equity interests held by third parties; and
(e) any dormant, inactive, or dissolved entities that were subsidiaries or affiliates of Cloudium at any time during the prior five fiscal years.
B. Capitalization. Request No. 5. A current capitalization table for Cloudium Technologies plc showing all outstanding equity and equity-linked securities, including without limitation:
(a) all outstanding shares of common stock (including ordinary shares), which are understood to total approximately 184,200,000 shares as of the Company's most recent reporting period;
(b) all outstanding stock options, including the number of shares underlying such options, exercise prices, vesting schedules, and expiration dates;
(c) all outstanding restricted stock units ("RSUs") and performance share units ("PSUs"), including the number of shares underlying such awards, grant dates, and vesting conditions;
(d) all outstanding warrants, including the number of shares issuable upon exercise, exercise prices, and expiration dates;
(e) all outstanding convertible notes, convertible preferred stock, or other convertible instruments;
(f) the number of shares reserved for issuance under equity incentive plans, employee stock purchase plans, or other equity compensation arrangements; and
(g) any other securities or rights convertible into, exchangeable for, or exercisable for equity of the Company.
Request No. 6. Copies of all stock option plans, equity incentive plans, employee stock purchase plans, and all other equity-based compensation plans currently in effect or that have been in effect at any time during the prior five fiscal years, together with all amendments thereto and all forms of award agreements used thereunder (including forms of option agreements, RSU agreements, PSU agreements, and restricted stock agreements).
Request No. 7. A complete schedule of all outstanding options, RSUs, PSUs, and other equity awards, including for each award: (a) the name and title of the holder; (b) the grant date; (c) the number of shares subject to the award; (d) the vesting schedule (including any acceleration provisions); (e) the exercise price (for options); (f) the expiration date; and (g) any performance conditions applicable to such award. Please indicate separately those awards held by executive officers, directors, and 5%+ stockholders.
Request No. 8. The stockholder register or register of members for Cloudium Technologies plc, reflecting all current holders of record of the Company's equity securities, together with the number and class of shares held by each such holder.
Request No. 9. Capitalization tables for each subsidiary of the Company, showing all outstanding equity securities and the ownership thereof.
C. Board and Stockholder Records
Request No. 10. Minutes of all meetings of the board of directors of Cloudium Technologies plc for the prior three fiscal years (i.e., from and including the fiscal year ended September 30, 2021, through the present), including minutes of all meetings of committees of the board of directors (including the audit committee, compensation committee, and nominating and governance committee). The current board chair is understood to be Douglas Pemberton (independent director). Please also provide any board packages, presentations, or other materials distributed to the board in connection with such meetings.
Request No. 11. Minutes of all meetings of stockholders (or members) of Cloudium Technologies plc for the prior three fiscal years, including annual general meetings and any extraordinary general meetings, together with records of all written consents or resolutions adopted by stockholders in lieu of a meeting during such period.
Request No. 12. Copies of the current charters for each committee of the board of directors, including the audit committee charter, the compensation committee charter, and the nominating and corporate governance committee charter, together with any amendments thereto during the prior three fiscal years.
Request No. 13. A list of all current directors and officers of Cloudium Technologies plc and each subsidiary, including for each individual: (a) full legal name; (b) title(s); (c) date of initial appointment; (d) term of office and expiration date (if applicable); and (e) committee memberships (for directors). The following executive officers are specifically noted for reference purposes:
• Jonathan Hargrove — Chief Executive Officer
• Sienna Whitfield — Chief Financial Officer
• Nadia Chowdhury — General Counsel
Request No. 14. All directors' and officers' questionnaires, D&O information sheets, or similar biographical and conflict-of-interest disclosure forms completed by current directors and officers of the Company within the prior three years.
Request No. 15. Minutes of all meetings of the board of directors (or equivalent governing body) and all meetings of stockholders (or members) of each subsidiary of the Company for the prior three fiscal years, including any resolutions adopted by written consent in lieu of a meeting.
D. Significant Stockholders
Request No. 16. A schedule of all stockholders of Cloudium Technologies plc holding 5% or more of any class of outstanding shares, including the name of the stockholder, the number and class of shares held, and the percentage of the outstanding shares represented thereby. Please also provide copies of all Schedule 13D and Schedule 13G filings (and any amendments thereto) made with the Securities and Exchange Commission by or on behalf of such stockholders. The following significant stockholders are specifically noted for reference purposes:
• Pinnacle Growth Ventures LLC (managing member: Evelyn Carmichael) — approximately 21,367,200 shares, representing approximately 11.6% of outstanding common stock; and
• Jonathan Hargrove — approximately 7,736,400 shares, representing approximately 4.2% of outstanding common stock.
Request No. 17. All stockholder agreements, voting agreements, voting trust agreements, investor rights agreements, registration rights agreements, co-sale agreements, tag-along agreements, drag-along agreements, preemptive rights agreements, rights of first refusal or rights of first offer, and any other agreements or arrangements relating to the ownership, transfer, voting, or registration of equity securities of the Company or any subsidiary.
Request No. 18. All filings made with the SEC by or on behalf of Cloudium Technologies plc relating to beneficial ownership of the Company's securities, including all Schedules 13D and 13G (and amendments thereto), all Section 16 filings (Forms 3, 4, and 5), and all other beneficial ownership reports.
E. Prior Transactions
Request No. 19. All documents relating to any mergers, acquisitions, divestitures, dispositions, joint ventures, minority investments, strategic alliances, or other business combination or restructuring transactions completed by or proposed to the Company or any subsidiary during the prior five fiscal years, including without limitation: (a) letters of intent; (b) term sheets; (c) merger agreements, stock purchase agreements, asset purchase agreements, and joint venture agreements; (d) ancillary transaction documents (escrow agreements, indemnification agreements, transition services agreements, etc.); (e) fairness opinions and valuation reports; (f) board presentations and resolutions approving such transactions; and (g) any post-closing dispute or adjustment documentation.
Request No. 20. Any letters of intent, term sheets, indications of interest, or proposals received by the Company from third parties for an acquisition of, investment in, or business combination with the Company (or any material subsidiary or business unit thereof) during the prior two years, including any confidential process letters, expressions of interest, and related correspondence, whether or not such proposals were accepted or resulted in a definitive agreement.
II. MATERIAL CONTRACTS
A. Customer Contracts
Request No. 21. Copies of all customer contracts, master services agreements, master SaaS agreements, subscription agreements, enterprise license agreements, and other revenue-generating agreements representing annual revenue or annual recurring revenue ("ARR") in excess of $5,000,000. This request specifically includes, without limitation, the Master SaaS Agreement with Aegis Federal Solutions Inc. (a US government contractor headquartered in Virginia), which is understood to represent approximately $84,000,000 in ARR. For each such contract, please also provide all amendments, change orders, statements of work, order forms, and related schedules and exhibits.
Request No. 22. A schedule of the Company's top 25 customers by ARR (the Company's total ARR as of December 31, 2023 is understood to be approximately $1,740,000,000), including for each customer: (a) the customer name; (b) the current ARR attributable to such customer; (c) the relevant contract(s) and effective date(s); (d) the contract expiration date; (e) renewal terms (automatic renewal, renewal at option of customer, etc.); (f) any termination-for-convenience provisions; (g) any pending disputes, claims, or material issues with such customer; and (h) year-over-year ARR growth or decline for such customer over the prior three years.
Request No. 23. Copies of any customer contracts containing "most favored nation" pricing, pricing benchmarking, exclusivity, non-compete, minimum revenue commitment, or volume commitment provisions, together with a summary identifying the relevant provisions and any obligations of the Company thereunder.
B. Vendor and Supplier Contracts
Request No. 24. Copies of all material vendor, supplier, and service-provider contracts with annual spend exceeding $2,000,000, including without limitation: (a) cloud hosting and infrastructure agreements (e.g., agreements with Ridgeway Industries, Crestline Systems, Aldermere Technologies, or other cloud service providers); (b) data center agreements; (c) telecommunications agreements; (d) hardware procurement agreements; and (e) professional services and consulting agreements. For each such contract, please provide all amendments, statements of work, and related schedules.
Request No. 25. Copies of all outsourcing agreements, including agreements with third-party software development vendors, customer support vendors, IT services providers, and business process outsourcing providers. This request specifically includes any such agreements relating to the operations of Cloudium Technologies India Pvt. Ltd. in Bangalore, including any intra-group service agreements or intercompany outsourcing arrangements with the Indian subsidiary.
C. Partnership, Joint Venture, and Alliance Agreements
Request No. 26. Copies of all partnership agreements, joint venture agreements, strategic alliance agreements, reseller agreements, channel partner agreements, referral agreements, original equipment manufacturer (OEM) agreements, distribution agreements, and any other agreements relating to collaborative business arrangements, together with all amendments and supplements thereto.
D. Technology and IP Licenses
Request No. 27. Copies of all inbound technology license agreements pursuant to which the Company or any subsidiary licenses software, patents, data, content, or other technology or intellectual property from third parties, including all amendments, exhibits, and schedules thereto. This request specifically includes the Technology License Agreement with Helix Data Systems GmbH (Frankfurt, Germany), which is understood to contain a termination-for-change-of-control clause (as further noted in Request No. 30 below). Please identify, for each such agreement, any restrictions on assignment, sublicensing, or transfer, including any change of control provisions.
Request No. 28. Copies of all outbound technology license agreements pursuant to which the Company or any subsidiary grants licenses to third parties to use the Company's software, patents, data, content, or other technology or intellectual property (other than standard customer SaaS agreements or subscription agreements covered by Request No. 21), including all amendments, exhibits, and schedules thereto.
Request No. 29. A complete inventory of all open-source software components used in or incorporated into the Company's products, services, or internal systems, including for each component: (a) the name of the component; (b) the applicable open-source license (e.g., MIT, Apache 2.0, GPL v2, GPL v3, LGPL, AGPL, BSD); (c) the manner of incorporation (linked, embedded, modified, etc.); and (d) any copyleft or reciprocal licensing obligations. Please also provide any open-source compliance policies or procedures maintained by the Company.
E. Change of Control Provisions
Request No. 30. A schedule identifying all contracts (whether customer, vendor, license, financing, lease, employment, or otherwise) that contain change of control, assignment-consent, termination-upon-assignment, acceleration, or similar provisions that could be triggered by the consummation of an acquisition of the Company by Buyer or any change in control of the Company. For each such contract, please identify: (a) the parties; (b) the nature of the change of control provision; (c) the specific triggering event(s); (d) the consequences of a triggering event (termination, consent requirement, acceleration, repricing, etc.); and (e) any cure or waiver mechanisms. Without limiting the foregoing, the following contracts are specifically noted as understood to contain change of control provisions:
(a) Master SaaS Agreement with Aegis Federal Solutions Inc. — understood to require prior written consent from Aegis for any change of control of the Company;
(b) Technology License Agreement with Helix Data Systems GmbH — understood to provide Helix Data Systems with a termination right upon any change of control of the Company; and
(c) Credit Agreement dated March 15, 2021, with Atlas Commercial Lending Corp. (as administrative agent) — understood to require mandatory prepayment of outstanding indebtedness upon a change of control.
Request No. 31. Copies of any consents, waivers, or amendments previously obtained or granted under change of control provisions in any of the contracts identified in response to Request No. 30, together with any correspondence relating to such consents or waivers.
F. Financing and Debt Agreements
Request No. 32. Copies of all credit agreements, loan agreements, promissory notes, indentures, note purchase agreements, and other debt instruments to which the Company or any subsidiary is a party, together with all exhibits, schedules, and disclosure letters. This request specifically includes the credit agreement dated March 15, 2021, by and among the Company, the lenders party thereto, and Atlas Commercial Lending Corp., as administrative agent (the "Existing Credit Agreement"), which is understood to include:
(a) a term loan facility with approximately $620,000,000 in outstanding principal, bearing interest at SOFR plus 250 basis points, maturing in March 2028; and
(b) a revolving credit facility with aggregate commitments of $400,000,000, of which approximately $200,000,000 is currently drawn.
Request No. 33. Copies of all amendments, amendments and restatements, waivers, supplements, joinders, and side letters relating to the credit agreements and other debt instruments described in Request No. 32.
Request No. 34. Copies of all security agreements, pledge agreements, collateral agreements, mortgages, deeds of trust, UCC-1 financing statements (and any amendments or continuations thereto), debentures, and other documents creating or evidencing liens or security interests in favor of the Company's creditors.
Request No. 35. Copies of all guarantees (whether upstream, downstream, or cross-stream), letters of credit, surety bonds, performance bonds, and comfort letters issued by or on behalf of the Company or any subsidiary in connection with any indebtedness or other obligations.
Request No. 36. Copies of all compliance certificates and officer's certificates delivered by the Company under the Existing Credit Agreement or any other debt instrument during the prior three fiscal years, including financial covenant compliance calculations and any accompanying financial statements or schedules.
Request No. 37. Copies of any notices of default, notices of events of default, reservation of rights letters, forbearance agreements, or any other notices or correspondence relating to actual or potential defaults or events of default under any debt instrument during the prior five fiscal years, whether issued by the Company or by any creditor or agent.
G. Related-Party Transactions
Request No. 38. Copies of all agreements, arrangements, and understandings (whether written or oral) between the Company or any subsidiary, on the one hand, and any of its directors, officers, 5%+ stockholders, or their respective affiliates, family members, or related entities, on the other hand. This includes without limitation any consulting agreements, management agreements, service agreements, loan agreements, lease agreements, and any other arrangements involving the payment or receipt of money, goods, or services.
Request No. 39. A schedule of all related-party transactions disclosed in the Company's SEC filings (including Annual Reports on Form 20-F or Form 10-K and proxy statements) during the prior three fiscal years, together with copies of the relevant disclosure.
H. Other Material Contracts
Request No. 40. Copies of all contracts not otherwise captured by the requests set forth above that are material to the business, financial condition, or operations of the Company, including without limitation any contract with annual consideration (whether payable or receivable) exceeding $5,000,000 or with a remaining term exceeding three years from the date hereof.
Request No. 41. Copies of all non-disclosure agreements, confidentiality agreements, and standstill agreements to which the Company or any subsidiary is a party (other than customer, vendor, or employee NDAs entered into in the ordinary course of business), including any standstill or similar agreements entered into in connection with potential strategic transactions.
III. LITIGATION AND DISPUTES
Request No. 42. A comprehensive schedule of all pending or threatened litigation, arbitration, mediation, administrative proceedings, or other dispute resolution proceedings involving the Company or any subsidiary as a plaintiff, defendant, claimant, respondent, petitioner, or intervenor, including for each such matter: (a) the case name and docket or case number; (b) the court, tribunal, or arbitral body; (c) the jurisdiction; (d) the date of filing or commencement; (e) the nature and summary of the claims asserted; (f) the amount in controversy or damages sought; (g) the current procedural status; (h) the Company's assessment of the likelihood of an adverse outcome; and (i) the identity of outside counsel representing the Company in such matter.
Request No. 43. Copies of all complaints, petitions, answers, counterclaims, cross-claims, third-party complaints, motions to dismiss, motions for summary judgment, and other material pleadings in all pending matters identified in response to Request No. 42.
Request No. 44. Copies of all settlement agreements, consent decrees, consent orders, final judgments, and other dispositive orders entered in any litigation, arbitration, or administrative proceeding involving the Company or any subsidiary during the prior five fiscal years.
Request No. 45. Copies of all demand letters, cease-and-desist letters, written threats of litigation, and other written communications received by or sent by the Company or any subsidiary alleging liability, infringement, breach, or other wrongful conduct during the prior three years.
Request No. 46. A schedule of all governmental investigations, inquiries, examinations, enforcement actions, and subpoenas involving the Company or any subsidiary during the prior five fiscal years, including for each: (a) the governmental agency or authority; (b) the nature and subject matter of the investigation or inquiry; (c) the date of commencement; and (d) the current status and resolution (if any).
Request No. 47. A description of any pending or anticipated claims, potential litigation, or threatened proceedings that are not yet in litigation or formal dispute resolution but that the Company reasonably believes may result in litigation or a material claim against the Company, together with any internal memoranda or assessments relating thereto (to the extent not subject to attorney-client privilege).
Request No. 48. The Company's legal expense budget for the current fiscal year and historical legal expense data (including external counsel fees, internal legal department costs, and settlement and judgment expenditures) for the prior three fiscal years.
IV. INTELLECTUAL PROPERTY
Request No. 49. A comprehensive schedule of all intellectual property owned by the Company or any subsidiary, including:
(a) all patents and patent applications (utility, design, and provisional), including patent number or application number, title, jurisdiction, filing date, issue date, and expiration date;
(b) all registered trademarks, service marks, and trademark and service mark applications, including registration number or application number, mark description, jurisdiction, registration date, and next renewal date;
(c) all registered copyrights, including registration number, title of work, jurisdiction, and registration date; and
(d) all domain names owned or controlled by the Company, including the registrar and expiration date.
Request No. 50. A schedule describing all trade secrets and proprietary know-how material to the Company's business, including a general description of the nature of such trade secrets, the measures taken to protect their confidentiality, and the business function or product line to which they relate. This schedule need not disclose the substance of any trade secret but should be sufficiently detailed to identify the category and relative importance of the trade secret.
Request No. 51. Copies of all intellectual property assignment agreements entered into with employees, independent contractors, consultants, and other third parties, including standard forms of invention assignment and confidentiality agreements, as well as any individually negotiated IP assignment agreements.
Request No. 52. A schedule of all intellectual property-related litigation, oppositions, interferences, inter partes review proceedings, post-grant review proceedings, cancellation proceedings, and other disputes (whether pending or resolved) involving the Company or any subsidiary during the prior five fiscal years, together with copies of any material pleadings, decisions, or settlement agreements relating thereto.
Request No. 53. Copies of any freedom-to-operate opinions, patentability opinions, invalidity opinions, non-infringement opinions, IP valuation reports, or other IP-related legal or expert opinions obtained by or on behalf of the Company during the prior five fiscal years.
Request No. 54. Copies of any material intellectual property licenses granted to the Company by third parties and by the Company to third parties, to the extent not already provided in response to Requests No. 27 and 28 above (Section II.D).
Request No. 55. Copies of all software source code escrow agreements to which the Company or any subsidiary is a party, whether as depositor or beneficiary, including all amendments and renewal notices, together with any verification reports.
Request No. 56. A description of the Company's data privacy and cybersecurity policies and procedures, including: (a) the Company's written information security policy; (b) the Company's privacy policy (both internal and customer-facing); (c) any data processing agreements; and (d) a description of any data breach incidents, unauthorized access events, or other cybersecurity incidents experienced by the Company or any subsidiary during the prior five fiscal years, including the nature of the incident, the data affected, the date of discovery, any notifications provided to affected individuals or regulatory authorities, and any remediation actions taken.
V. FINANCIAL
A. Audited and Unaudited Financial Statements
Request No. 57. Copies of the audited consolidated financial statements of Cloudium Technologies plc for the three most recent fiscal years (i.e., for the fiscal years ended September 30, 2021, September 30, 2022, and September 30, 2023), including in each case the consolidated balance sheet, consolidated statement of operations, consolidated statement of comprehensive income, consolidated statement of changes in equity, consolidated statement of cash flows, and all notes to the consolidated financial statements. Each set of audited financial statements should include the reports of the Company's independent registered public accounting firm, Harwell & Dobson LLP (engagement partner: Martin Chisholm). For reference, the Company's last twelve months ("LTM") Revenue as of the fiscal year ended September 30, 2023 is understood to be approximately $1,620,000,000, and LTM EBITDA is understood to be approximately $405,000,000.
Request No. 58. Copies of unaudited quarterly financial statements (including, at a minimum, a balance sheet, statement of operations, and statement of cash flows) for each quarter of the current and prior fiscal year (i.e., for the quarters ended December 31, 2022, March 31, 2023, June 30, 2023, and September 30, 2023), together with any subsequent interim financial statements that may be available. Management discussion and analysis or management commentary accompanying such quarterly financial statements, if any, should also be provided.
Request No. 59. Copies of any management letters, internal control reports, audit reports, or other communications issued by Harwell & Dobson LLP to the Company's management, audit committee, or board of directors during the prior three fiscal years, including any comments or recommendations relating to the Company's internal controls, accounting practices, or financial reporting processes.
B. Budgets and Projections
Request No. 60. Copies of the Company's annual operating budgets for the current fiscal year and the prior two fiscal years, including revenue, cost of revenue, operating expense, capital expenditure, and cash flow budgets.
Request No. 61. Copies of the Company's long-range financial plan, five-year financial projections, and any board-approved financial forecasts, including any presentations to the board of directors relating to strategic financial planning. To the extent the Company has prepared multiple scenarios or cases (e.g., base case, upside case, downside case), please provide all such scenarios.
Request No. 62. Monthly or quarterly revenue and ARR reports for the prior two fiscal years, including: (a) total Company ARR as of each reporting date (Company ARR as of December 31, 2023 is understood to be approximately $1,740,000,000); (b) new ARR bookings; (c) ARR from expansions; (d) ARR churn and contraction; (e) net new ARR; and (f) any other key performance indicators regularly tracked by Company management.
C. Revenue and Billing
Request No. 63. A detailed description of the Company's revenue recognition policies and practices, including any changes thereto during the prior three fiscal years, and documentation of the Company's compliance with Accounting Standards Codification Topic 606, Revenue from Contracts with Customers ("ASC 606"), including any ASC 606 implementation memoranda, policy papers, or accounting position papers.
Request No. 64. A schedule of deferred revenue and contract liabilities as of the most recent quarterly reporting date, together with an aging analysis showing the expected recognition of deferred revenue over time.
Request No. 65. An aging analysis of accounts receivable as of the most recent monthly or quarterly reporting date, broken down by aging bucket (e.g., current, 30 days, 60 days, 90 days, 120+ days) and by geographic segment.
Request No. 66. A description of the Company's billing practices, collections policies, and procedures for managing overdue accounts, together with historical data on write-offs, bad-debt expense, and allowance for doubtful accounts for the prior three fiscal years.
Request No. 67. A revenue breakdown by: (a) product line (e.g., ERP, CRM, business intelligence, and any other product lines); (b) geography (United States, United Kingdom, India, Germany, and all other regions); and (c) customer segment (e.g., mid-market vs. enterprise), for each of the prior three fiscal years and the most recent interim period.
D. Working Capital and Cash Management
Request No. 68. A description of the Company's working capital cycle, cash conversion practices, and treasury management policies, including any policies relating to minimum cash balances, investment of excess cash, foreign currency hedging, and cash repatriation.
Request No. 69. A list of all bank accounts, depository accounts, and investment accounts maintained by the Company or any subsidiary in all jurisdictions, including for each account: (a) the financial institution; (b) the account number; (c) the type of account; (d) the authorized signatories; and (e) the balance as of the most recent month-end.
Request No. 70. Copies of all intercompany loan agreements, funding arrangements, cash pooling agreements, and other intercompany financing arrangements between Cloudium Technologies plc and its subsidiaries, including in particular arrangements between the parent company and Cloudium Technologies UK Ltd., Cloudium Technologies India Pvt. Ltd., and Cloudium Solutions GmbH. Please also provide a schedule of all outstanding intercompany balances as of the most recent month-end.
E. Indebtedness and Off-Balance-Sheet Obligations
Request No. 71. A schedule of all outstanding indebtedness of the Company and its subsidiaries as of the most recent quarter-end, including for each item: (a) the creditor; (b) the principal amount outstanding; (c) the interest rate; (d) the maturity date; (e) any prepayment penalties or premiums; and (f) any security or collateral. Cross-reference to Request Nos. 32 through 37 (Section II.F) above.
Request No. 72. A schedule of all off-balance-sheet arrangements and obligations, including without limitation: (a) operating leases and finance leases (with remaining lease commitments); (b) factoring, securitization, or similar arrangements; (c) guarantees and letters of credit; (d) purchase commitments and take-or-pay arrangements; and (e) any other contingent liabilities or commitments not reflected on the Company's balance sheet.
Request No. 73. Capital expenditure reports for the prior three fiscal years, together with the current-year capital expenditure budget and any multi-year capital expenditure plans, broken down by category (e.g., property and equipment, software development, leasehold improvements, IT infrastructure).
VI. TAX
Request No. 74. Federal, state, local, and foreign income tax returns (or comprehensive summaries thereof) for Cloudium Technologies plc and each subsidiary for the prior three fiscal years. The US Employer Identification Number (EIN) for Cloudium Technologies plc is 83-2196754. For reference, the Solara Fund VI EIN is 87-4523190. This request covers all tax returns filed with Her Majesty's Revenue & Customs (HMRC) in the United Kingdom, the Internal Revenue Service (IRS) in the United States, the Income Tax Department of India, and the relevant Finanzamt in Germany, as well as any state, local, or regional tax returns filed in any jurisdiction.
Request No. 75. A schedule of all open or pending federal, state, local, and foreign tax audits, examinations, assessments, adjustments, deficiency notices, or disputes, including for each: (a) the taxing authority; (b) the tax years under examination; (c) the issues raised; (d) the amount in controversy (if known); and (e) the current status.
Request No. 76. Copies of all tax rulings, advance pricing agreements, private letter rulings, closing agreements, settlement agreements, and any other formal or informal agreements with taxing authorities relating to the Company's tax positions or obligations.
Request No. 77. Copies of all transfer pricing studies, transfer pricing documentation, advance pricing agreements, and intercompany pricing policies, particularly as between Cloudium Technologies plc, Cloudium Technologies UK Ltd., Cloudium Technologies India Pvt. Ltd., and Cloudium Solutions GmbH. Please also provide any benchmarking studies or economic analyses supporting the Company's intercompany pricing.
Request No. 78. A schedule of all material tax elections made by the Company or any subsidiary, including without limitation any elections under Section 338 of the Internal Revenue Code, check-the-box elections (Form 8832), consolidated return elections, and any equivalent elections under foreign tax law.
Request No. 79. An analysis of any tax net operating losses ("NOLs"), tax credits, capital loss carryforwards, or other material tax attributes of the Company or any subsidiary, including any limitations on the utilization of such tax attributes under Section 382 of the Internal Revenue Code (or analogous provisions of foreign tax law), and any analysis of how the proposed transaction may affect such limitations.
Request No. 80. Withholding tax compliance records for the prior three fiscal years, including employment tax withholding, backup withholding, and withholding on payments to non-resident aliens or foreign entities, for all jurisdictions (United States, United Kingdom, India, and Germany).
Request No. 81. All sales tax, use tax, value-added tax (VAT), and goods-and-services tax (GST) registrations, returns, and compliance records for the prior three fiscal years, together with any audit history, assessment notices, or disputes relating thereto.
Request No. 82. Any stamp duty and stamp duty reserve tax (SDRT) analysis prepared in connection with prior share transactions or other transfers of equity interests in the Company's UK entities, together with any HMRC clearances or confirmations relating thereto.
Request No. 83. Copies of any tax indemnity agreements, tax sharing agreements, tax allocation agreements, or other agreements relating to the allocation or sharing of tax liabilities among the Company and its subsidiaries or between the Company and any third party.
VII. REGULATORY AND COMPLIANCE
Request No. 84. A list of all governmental and regulatory permits, licenses, authorizations, registrations, certifications, and approvals held by the Company or any subsidiary, including without limitation: (a) FedRAMP authorization status (and any FedRAMP Provisional Authority to Operate (P-ATO) or Agency Authority to Operate (ATO)); (b) UK regulatory registrations; (c) Indian regulatory filings (including filings with the Registrar of Companies, Reserve Bank of India, and any sector-specific regulators); and (d) German trade registrations (Handelsregister) and any other regulatory filings required in Germany.
Request No. 85. Copies of all material correspondence, notices, and communications with governmental agencies and regulatory authorities during the prior three years, including without limitation correspondence with: (a) the Federal Trade Commission (FTC); (b) the Department of Justice (DOJ); (c) the Securities and Exchange Commission (SEC); (d) the UK Competition and Markets Authority (CMA); (e) the UK Information Commissioner's Office (ICO); (f) the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin); and (g) Indian regulatory authorities.
Request No. 86. Copies of all filings made by the Company with the SEC during the prior three fiscal years, including: (a) Annual Reports (on Form 20-F or Form 10-K, as applicable); (b) Quarterly Reports (if applicable); (c) Current Reports on Form 8-K; (d) Proxy statements and information statements; (e) Registration statements; and (f) any other filings or submissions. For reference, Cloudium Technologies plc is listed on the Nasdaq Global Select Market under the ticker symbol "CLDM."
Request No. 87. A description of the Company's compliance program, including: (a) the Company's code of conduct or code of ethics; (b) anti-corruption and anti-bribery policies (including policies addressing the U.S. Foreign Corrupt Practices Act ("FCPA") and the UK Bribery Act 2010); (c) sanctions and export control compliance policies; (d) whistleblower and hotline procedures; (e) compliance training programs and materials; and (f) the organizational structure of the Company's compliance function, including the identity of the chief compliance officer or equivalent.
Request No. 88. A description of any internal investigations, compliance reviews, or ethics inquiries conducted by or on behalf of the Company during the prior five fiscal years, including the nature of the matter investigated, the findings, and any remedial actions taken. To the extent responsive documents are subject to attorney-client privilege, please include such documents on the privilege log described in the Introductory Instructions above.
Request No. 89. Copies of all export control, economic sanctions (including OFAC compliance), and anti-money-laundering compliance records, policies, procedures, and training materials, together with any compliance audits, risk assessments, or voluntary self-disclosures relating to export control or sanctions matters.
Request No. 90. Data protection and privacy compliance documentation, including: (a) records of processing activities maintained pursuant to Article 30 of the General Data Protection Regulation ("GDPR") (relevant to UK and German operations); (b) Data Protection Impact Assessments ("DPIAs") conducted pursuant to Article 35 of the GDPR; (c) documentation evidencing compliance with the California Consumer Privacy Act ("CCPA") and the California Privacy Rights Act ("CPRA"); (d) any data processing agreements with third-party processors; (e) records of data subject access requests and responses thereto; and (f) any correspondence with data protection authorities, including the UK ICO and German data protection supervisory authorities.
VIII. EMPLOYEES AND LABOR
Request No. 91. A detailed headcount schedule showing the total number of employees of the Company and each subsidiary, broken down by location, function, and employment status (full-time, part-time, temporary). The Company's total headcount is understood to be approximately 6,800 employees globally, with significant employee populations in the following locations:
(a) United States — San Francisco headquarters (600 Townsend Street, Suite 800, San Francisco, CA 94103) and any other US locations;
(b) United Kingdom — approximately 1,200 employees in London and Manchester, employed by Cloudium Technologies UK Ltd.;
(c) India — approximately 2,400 employees in Bangalore, employed by Cloudium Technologies India Pvt. Ltd.; and
(d) Germany — approximately 400 employees in Berlin, employed by Cloudium Solutions GmbH.
Request No. 92. An organizational chart showing reporting lines for senior management, from the CEO through the next two levels of direct reports, including the identification of all individuals at the Vice President level and above.
Request No. 93. Copies of all employment agreements, offer letters, and service contracts for all executive officers and key employees, including specifically: (a) Jonathan Hargrove, Chief Executive Officer; (b) Sienna Whitfield, Chief Financial Officer; and (c) Nadia Chowdhury, General Counsel. Please also provide employment agreements for any other executive officers, senior vice presidents, or individuals holding the title of "C-suite" or equivalent.
Request No. 94. Copies of all severance plans, severance policies, and individual severance agreements applicable to employees of the Company or any subsidiary, including any plans or agreements that provide for enhanced severance in connection with a change of control, reduction in force, or termination without cause.
Request No. 95. Copies of all change of control agreements, retention agreements, transaction-related bonus arrangements, "golden parachute" agreements, and any other agreements or plans that provide for payments or benefits to employees or officers that are triggered by or conditioned upon a change of control, merger, acquisition, or similar transaction involving the Company.
Request No. 96. Copies of all non-competition agreements, non-solicitation agreements, garden leave provisions, confidentiality agreements, and invention-assignment agreements with key employees, executive officers, and other individuals who are material to the Company's business or technology.
Request No. 97. Copies of the employee handbook(s) in effect for each jurisdiction in which the Company employs personnel, including any jurisdiction-specific supplements or policies for the United States, United Kingdom, India, and Germany.
Request No. 98. A schedule of all independent contractors and consultants currently engaged by the Company, including for each: (a) the name of the individual or entity; (b) the nature of the services provided; (c) the annual compensation; and (d) the term of the engagement. Please also provide copies of all material consulting agreements (i.e., agreements with annual fees exceeding $250,000 or involving access to the Company's confidential information or intellectual property).
Request No. 99. Copies of all collective bargaining agreements, works council agreements, codetermination agreements, and any other agreements with labor unions or employee representative bodies, together with a description of any current or pending labor negotiations or disputes. This request is of particular relevance to the Company's UK and German operations, including any works council established at Cloudium Solutions GmbH in Berlin.