MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT

MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
September 5, 2023
This MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this "Agreement") is entered into as of September 5, 2023 (the "Effective Date"), by and between:
SOLARA DIGITAL INFRASTRUCTURE LP, a Delaware limited partnership, with its principal office at 1200 Market Street, Suite 3400, Wilmington, Delaware 19801 ("Solara" or, as the context requires, the "Receiving Party" or "Disclosing Party"); and
CLOUDIUM TECHNOLOGIES PLC, a public limited company incorporated under the laws of England and Wales (Company No. 09734521), with its registered office at 45 Broadwick Street, London W1F 0DB, United Kingdom, and its United States headquarters at 600 Townsend Street, Suite 800, San Francisco, California 94103 ("Cloudium" or the "Company").
Each of Solara and Cloudium is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties wish to explore and evaluate a potential strategic transaction (the "Transaction"), which may include a possible acquisition by Solara (directly or through one or more affiliates, including any fund vehicles managed or advised by Solara or its affiliates) of all or substantially all of the equity interests in, or assets of, the Company;
WHEREAS, in connection with the evaluation of the Transaction, each Party may disclose to the other Party certain confidential and proprietary information, including information that may constitute material non-public information concerning the Company within the meaning of United States federal securities laws;
WHEREAS, the Parties desire to set forth the terms and conditions governing the disclosure, use, and protection of such confidential and proprietary information; and
WHEREAS, this Agreement has been prepared by Calderwood & Harkness LLP, legal counsel to Solara.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all information (whether written, oral, electronic, visual, or in any other form or medium) furnished by or on behalf of a Disclosing Party or any of its Representatives to the Receiving Party or any of its Representatives, whether before or after the date of this Agreement, in connection with the evaluation of the Transaction. Without limiting the generality of the foregoing, Confidential Information includes:
(a) all financial information, including revenue data, financial projections, forecasts, budgets, historical financial statements (whether audited or unaudited), working capital analyses, capitalization tables, and any other information concerning the financial condition, results of operations, or cash flows of the Disclosing Party or its affiliates;
(b) all business plans, strategic plans, market analyses, product roadmaps, research and development plans, technology architectures, technical specifications, source code, algorithms, software documentation, and other technical or scientific information;
(c) all trade secrets, inventions, know-how, processes, techniques, patent applications, and other intellectual property or proprietary information;
(d) all customer lists, supplier lists, vendor agreements, pricing information, sales data, distribution channels, and marketing strategies;
(e) all employee information, including personnel records, organizational charts, compensation and benefits information, and talent assessments;
(f) all non-public information regarding the Disclosing Party's operations, subsidiaries, joint ventures, partnerships, financial condition, and business;
(g) all analyses, compilations, studies, notes, interpretations, memoranda, summaries, or other materials prepared by the Receiving Party or its Representatives that contain, reflect, or are based upon, in whole or in part, any information described in this Section 1.1 (collectively, "Derivative Materials"); and
(h) the existence and terms of this Agreement, the fact that Confidential Information has been made available hereunder, and the fact that discussions or negotiations are taking place concerning the Transaction, including the status, terms, or conditions thereof.
For the avoidance of doubt, Cloudium Technologies plc is a publicly traded company whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "CLDM." Confidential Information expressly includes material non-public information within the meaning of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder by the United States Securities and Exchange Commission (the "SEC"). Each Party acknowledges that, by reason of the Transaction evaluation and the information exchanged in connection therewith, either Party or its Representatives may come into possession of such material non-public information.
1.2 Exclusions from "Confidential Information." Notwithstanding anything to the contrary in Section 1.1, "Confidential Information" shall not include any information that:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement;
(b) was already in the Receiving Party's possession prior to being furnished by or on behalf of the Disclosing Party, as evidenced by contemporaneous written records maintained by the Receiving Party in the ordinary course of business, and was not subject to any obligation of confidentiality owed to the Disclosing Party or any other person at the time of such possession;
(c) is independently developed by the Receiving Party or its Representatives without use of, reference to, or reliance upon, in whole or in part, any Confidential Information of the Disclosing Party, as demonstrated by the Receiving Party's contemporaneous written records; or
(d) is received by the Receiving Party on a non-confidential basis from a third-party source that, to the Receiving Party's knowledge after reasonable inquiry, is not bound by any obligation of confidentiality to the Disclosing Party or any of its affiliates with respect to such information.
The burden of establishing the applicability of any of the foregoing exclusions shall rest with the Party claiming such exclusion. Notwithstanding the foregoing exclusions, Derivative Materials shall in all circumstances constitute Confidential Information subject to the terms and conditions of this Agreement.
1.3 "Representatives." As used in this Agreement, "Representatives" means, with respect to any Party, such Party's affiliates and the directors, officers, employees, managing partners, general partners, limited partners, members, agents, advisors (including, without limitation, financial advisors, investment bankers, legal counsel, accountants, and consultants), and other representatives of such Party and its affiliates who receive or have access to Confidential Information in connection with the Evaluation.
Without limiting the generality of the foregoing:
(a) With respect to Solara, "Representatives" expressly includes: (i) Solara Digital GP LLC, a Delaware limited liability company and the general partner of Solara; (ii) Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership (the investing fund vehicle), and Solara Fund VI GP LLC, a Delaware limited liability company (the general partner of such fund vehicle), and their respective directors, officers, employees, partners, and members; (iii) Osprey Bancroft & Co., financial advisor to Solara (contact: Damien Harlow, 280 Park Avenue, New York, New York 10017); (iv) Glenmore Thornton LLP, accounting and tax advisor to Solara (contact: Richard Okamura, 30 Hudson Yards, New York, New York 10001); and (v) Calderwood & Harkness LLP, legal counsel to Solara (contact: Harrison Wexford, 599 Lexington Avenue, New York, New York 10022).
(b) With respect to Cloudium, "Representatives" expressly includes: (i) Cloudium's subsidiaries, including Cloudium Technologies UK Ltd. (a company incorporated under the laws of England and Wales), Cloudium Technologies India Pvt. Ltd. (a company incorporated under the laws of India), and Cloudium Solutions GmbH (a company organized under the laws of Germany), and their respective directors, officers, and employees; (ii) Ridgeway Phelps & Sato LLP, legal counsel to Cloudium (contact: Catherine Answorth, 375 Park Avenue, New York, New York 10152); (iii) Veridian Partners LLC, financial advisor to Cloudium (contact: Monica Pressler, 50 Rockefeller Plaza, New York, New York 10020); and (iv) Harwell & Dobson LLP, auditors to Cloudium (contact: Martin Chisholm, 200 Clarendon Street, Boston, Massachusetts 02116).
1.4 "Transaction." As used in this Agreement, "Transaction" means the potential acquisition by Solara (directly or through one or more of its affiliates, fund vehicles, or co-investment vehicles, including Solara Digital Infrastructure Fund VI LP) of all or substantially all of the equity interests in, or assets of, Cloudium, whether such acquisition is structured as a merger (including a reverse triangular merger), tender offer, exchange offer, share purchase, asset purchase, scheme of arrangement under the Companies Act 2006 of England and Wales, or any other form of business combination or acquisition transaction.
1.5 "Evaluation." As used in this Agreement, "Evaluation" means the consideration, evaluation, negotiation, and/or consummation of the Transaction by either Party and their respective Representatives, including the conduct of due diligence, the preparation of financial models, the negotiation of definitive transaction documentation, and related activities.
SECTION 2: CONFIDENTIALITY OBLIGATIONS
2.1 Non-Disclosure. Each Receiving Party shall maintain in strict confidence all Confidential Information of the Disclosing Party and shall not, without the prior written consent of the Disclosing Party, disclose any Confidential Information to any person, except as expressly permitted by this Agreement. Each Receiving Party agrees that the Confidential Information of the Disclosing Party shall be used solely for the purpose of the Evaluation and for no other purpose whatsoever. Without limiting the foregoing, no Receiving Party shall use any Confidential Information of the Disclosing Party for competitive purposes or for the benefit of any person other than the Disclosing Party.
2.2 Permitted Disclosures. Notwithstanding Section 2.1, a Receiving Party may disclose Confidential Information to its Representatives, subject to the following conditions:
(a) Such Representatives have a bona fide need to know such Confidential Information for the purposes of the Evaluation;
(b) Such Representatives have been informed of the confidential nature of the Confidential Information and of the obligations set forth in this Agreement, and have agreed to be bound by the terms of this Agreement as if they were parties hereto, or are otherwise bound by professional obligations of confidentiality at least as protective as the terms of this Agreement; and
(c) The Receiving Party shall be responsible for any breach or violation of this Agreement by any of its Representatives, and agrees that any such breach or violation by a Representative shall be deemed a breach by the Receiving Party itself.
In addition to the foregoing, the following specific disclosures shall be permitted:
(d) Disclosure to Potential Financing Sources. Solara may disclose Confidential Information of Cloudium to potential lenders, debt arrangers, lead arrangers, co-arrangers, and their respective legal counsel in connection with arranging, structuring, or syndicating financing for the Transaction, including, without limitation, Meridian Atlantic Bank, N.A. and Ironclad Capital Markets LLC, and their legal counsel Winthrop & Hale LLP; provided, however, that any such persons shall have agreed in writing to be bound by confidentiality obligations substantially similar to those set forth herein, or are bound by customary professional obligations of confidentiality at least as protective as the terms of this Agreement. Solara shall provide Cloudium with advance written notice of the identity of any such financing source (to the extent not identified in this Agreement) prior to disclosing Confidential Information to such persons.
(e) Disclosure to Potential Co-Investors. Solara may disclose Confidential Information of Cloudium to potential co-investors in the Transaction (including limited partners, sovereign wealth funds, institutional investors, or other strategic or financial co-investors), provided that any such potential co-investor shall have executed a joinder agreement to this Agreement or a separate non-disclosure agreement containing terms and conditions substantially similar to those set forth herein. Solara shall provide Cloudium with advance written notice of the identity of any such co-investor prior to disclosing Confidential Information to such persons, and Cloudium shall have the right to object to any such disclosure on reasonable grounds.
(f) Disclosure to Insurance Underwriters. Solara may disclose Confidential Information of Cloudium to representation and warranty insurance carriers, transactional risk insurance underwriters, and their respective brokers and advisors in connection with obtaining, binding, or renewing transactional risk insurance policies related to the Transaction, provided that any such persons are bound by confidentiality obligations at least as protective as the terms of this Agreement or by customary professional obligations of confidentiality.
2.3 Legally Compelled Disclosure. If a Receiving Party or any of its Representatives is required by applicable law, regulation, or legal process (including, without limitation, any subpoena, civil investigative demand, interrogatories, requests for production, or other similar process issued by a court of competent jurisdiction, governmental authority, or regulatory body), or by the rules or regulations of any stock exchange (including the Nasdaq Stock Market LLC) or self-regulatory organization, to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permissible and reasonably practicable:
(a) provide the Disclosing Party with prompt written notice of such requirement prior to making any such disclosure, so that the Disclosing Party may seek a protective order, injunction, or other appropriate remedy, or waive compliance with the provisions of this Agreement;
(b) cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in seeking such protective order or other appropriate remedy;
(c) disclose only that portion of the Confidential Information that is legally required to be disclosed, as determined in consultation with the Receiving Party's legal counsel; and
(d) use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information by the court, governmental authority, or regulatory body to which such disclosure is made.
In the event that no protective order or other remedy is obtained and the Receiving Party is nonetheless legally compelled to disclose Confidential Information, the Receiving Party may disclose such Confidential Information without liability under this Agreement, but only to the extent so legally required.
2.4 Securities Law Compliance. Each Party acknowledges that the Confidential Information may contain material non-public information concerning Cloudium Technologies plc, whose shares of common stock are listed on the Nasdaq Global Select Market under the ticker symbol "CLDM," and which has approximately 184,200,000 shares of common stock outstanding as of the date hereof. Each Party agrees that it is aware, and shall advise its Representatives who receive Confidential Information, that the United States federal and state securities laws prohibit any person who has received material non-public information concerning a publicly traded company from purchasing or selling securities of such company (or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities) while in possession of such material non-public information. Each Party agrees that it and its Representatives shall not, directly or indirectly, trade in the securities of Cloudium (including shares of common stock, options, warrants, convertible securities, and any derivative instruments or financial instruments whose value is based upon or derived from the value of Cloudium's securities) while in possession of material non-public information received in connection with the Evaluation, in compliance with Section 10(b) of the Exchange Act, Rule 10b-5 promulgated thereunder, and all other applicable provisions of federal and state securities laws.
SECTION 3: STANDSTILL PROVISION
3.1 Standstill Obligations. For a period of eighteen (18) months from the date of this Agreement (i.e., through and including March 5, 2025) (the "Standstill Period"), unless specifically invited in writing by the Board of Directors of Cloudium (currently chaired by Douglas Pemberton, Independent Board Chair), Solara agrees that neither it nor any of its affiliates (including, without limitation, Solara Digital GP LLC, Solara Digital Infrastructure Fund VI LP, Solara Fund VI GP LLC, and any other fund vehicle, co-investment vehicle, or portfolio company managed, controlled, or advised by Solara or any of its affiliates) shall, directly or indirectly:
(a) acquire, offer to acquire, or agree to acquire (by purchase, merger, tender offer, exchange offer, or otherwise), or propose to acquire, directly or indirectly, beneficial ownership (within the meaning of Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder) of any securities of Cloudium (including shares of common stock, preferred stock, warrants, options, convertible securities, and any derivative instruments or financial instruments whose value is based upon or derived from the value of Cloudium's securities), or any material assets, businesses, or properties of Cloudium or any of its subsidiaries;
(b) make, or in any way participate in, directly or indirectly, any "solicitation" of "proxies" (as such terms are used in the proxy rules of the SEC under the Exchange Act) or consents with respect to any securities of Cloudium, or seek to advise or influence any person or entity with respect to the voting or disposition of any securities of Cloudium;
(c) make any public announcement with respect to, or submit any proposal, indication of interest, or offer (with or without conditions) for, any merger, consolidation, business combination, tender offer, exchange offer, recapitalization, restructuring, liquidation, dissolution, or other extraordinary transaction involving Cloudium or any of its subsidiaries or their respective securities or assets;
(d) form, join, or in any way participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to any securities of Cloudium, or otherwise act in concert with any person or entity for the purpose of acquiring, holding, voting, or disposing of securities of Cloudium;
(e) seek to call, or request the calling of, a special meeting of the stockholders of Cloudium, or seek the submission of any proposal to the stockholders of Cloudium (whether pursuant to Rule 14a-8 under the Exchange Act or otherwise), or seek the removal of any director from the Board of Directors of Cloudium;
(f) otherwise take or cause to be taken any action, directly or indirectly, to seek to control or influence the management, Board of Directors, governing instruments, or policies of Cloudium, or nominate or propose any person for election to the Board of Directors of Cloudium, or propose any matter to be voted upon by the stockholders of Cloudium; or
(g) take any action, directly or indirectly, that could reasonably be expected to require Cloudium or any of its affiliates to make a public announcement regarding any of the types of matters described in clauses (a) through (f) above, or enter into any agreement, arrangement, or understanding (whether written or oral) with any third party to take any of the actions described in clauses (a) through (f) above.
Solara further agrees that, during the Standstill Period, neither Solara nor any of its affiliates shall request or propose that Cloudium or any of its Representatives amend, waive, or terminate any provision of this Section 3 (whether publicly or in any manner that could reasonably be expected to require public disclosure by either Party). The provisions of this Section 3 shall be binding upon Solara and all of its affiliates, and Solara shall be responsible for any breach of this Section 3 by any of its affiliates.
3.2 Fall-Away. Notwithstanding Section 3.1, the standstill obligations set forth in this Section 3 shall automatically and immediately terminate and be of no further force or effect upon the earliest to occur of the following:
(a) the execution and delivery of a definitive agreement between the Parties (or their respective affiliates) with respect to the Transaction;
(b) the public announcement by Cloudium (whether by press release, filing with the SEC, or otherwise) that Cloudium has entered into a definitive agreement with any third party providing for an acquisition, merger, business combination, or similar transaction involving all or substantially all of the equity interests in, or assets of, Cloudium;
(c) the commencement by any third party of a bona fide tender offer or exchange offer for more than fifty percent (50%) of Cloudium's outstanding shares of common stock (as reflected in a Schedule TO or similar filing with the SEC), which tender offer or exchange offer has not been rejected by the Board of Directors of Cloudium within ten (10) business days of such commencement; or
(d) the expiration of the Standstill Period (i.e., March 5, 2025).
For the avoidance of doubt, the termination of the standstill obligations pursuant to this Section 3.2 shall not affect or limit any other obligations of Solara under this Agreement, including the confidentiality obligations set forth in Section 2.
SECTION 4: NON-SOLICITATION OF EMPLOYEES
4.1 Non-Solicitation Covenant. For a period of eighteen (18) months from the date of this Agreement (i.e., through and including March 5, 2025) (the "Non-Solicitation Period"), neither Solara nor any of its affiliates (including, without limitation, Solara Digital GP LLC, Solara Digital Infrastructure Fund VI LP, Solara Fund VI GP LLC, and any portfolio company controlled by or under common control with Solara or any of its affiliates) shall, directly or indirectly, solicit for employment or hire, or cause or attempt to solicit for employment or hire, any employee of Cloudium or any of its subsidiaries (including, without limitation, Cloudium Technologies UK Ltd., Cloudium Technologies India Pvt. Ltd., and Cloudium Solutions GmbH, which together employ approximately 6,800 persons globally as of the date hereof) whose identity, role, capabilities, qualifications, or compensation arrangements first became known to Solara or any of its Representatives through the Evaluation process or through the disclosure of Confidential Information hereunder.
Cloudium and its affiliates (including the subsidiaries identified above) shall be subject to a reciprocal restriction with respect to employees of Solara and its affiliates (including Solara Digital GP LLC, Solara Digital Infrastructure Fund VI LP, and Solara Fund VI GP LLC) whose identity, role, capabilities, qualifications, or compensation arrangements first became known to Cloudium or any of its Representatives through the Evaluation process or through the disclosure of Confidential Information hereunder.
4.2 Exceptions. Notwithstanding Section 4.1, nothing in this Section 4 shall restrict either Party or any of its affiliates from:
(a) making general solicitations for employment by means of advertisements, job postings (whether online or in print), or the use of search firms, recruiting agencies, or similar services, in each case that are not specifically targeted at or directed toward the employees of the other Party or any of its affiliates;
(b) hiring any person who responds to such general solicitation described in clause (a) above, provided that neither the hiring Party nor any of its Representatives has otherwise directly or indirectly solicited such person in violation of Section 4.1;
(c) hiring any person whose employment with the other Party or any of its affiliates has been terminated (whether voluntarily or involuntarily) for a period of at least six (6) months prior to the commencement of employment discussions between the hiring Party and such person; or
(d) engaging in discussions with, or hiring, any person who contacts the hiring Party on an unsolicited basis, provided that such contact was not induced, encouraged, or facilitated by the hiring Party or any of its Representatives in violation of Section 4.1.
SECTION 5: RETURN AND DESTRUCTION OF MATERIALS
5.1 Obligation to Return or Destroy. Upon the written request of the Disclosing Party at any time, or upon the termination of discussions and negotiations regarding the Transaction without execution of a definitive agreement, the Receiving Party shall promptly (and in any event within ten (10) business days of receipt of such written request or such termination, whichever is applicable):
(a) return to the Disclosing Party all Confidential Information of the Disclosing Party in tangible form (including all copies, reproductions, excerpts, and summaries thereof), together with all Derivative Materials in the Receiving Party's or its Representatives' possession or control; or
(b) destroy all Confidential Information of the Disclosing Party and all Derivative Materials (whether in physical, electronic, or other form, and including all copies, reproductions, excerpts, and summaries thereof) in the Receiving Party's or its Representatives' possession or control, and certify such destruction in writing to the Disclosing Party by a duly authorized senior officer, managing partner, or general partner of the Receiving Party (or, if the Receiving Party is a natural person, by such Receiving Party personally).
The obligations set forth in this Section 5.1 shall apply to all physical documents, electronic files, records, data, and other materials constituting or containing Confidential Information, including materials stored on laptops, servers, removable media, cloud-based storage systems, email accounts, and in any virtual data rooms or other secure electronic platforms established or maintained in connection with the Evaluation. The Receiving Party shall use commercially reasonable efforts to cause the permanent and irrecoverable deletion or destruction of all electronic copies of Confidential Information (other than as permitted under Section 5.2 below), including directing its Representatives who have received Confidential Information to comply with this Section 5.1. The election to return or destroy shall be at the option of the Receiving Party, except that Derivative Materials shall be destroyed (and not returned to the Disclosing Party) unless the Disclosing Party otherwise requests.
5.2 Retention Exceptions. Notwithstanding the foregoing:
(a) The Receiving Party's outside legal counsel (including Calderwood & Harkness LLP for Solara, and Ridgeway Phelps & Sato LLP for Cloudium) may retain one (1) archival copy of the Confidential Information and Derivative Materials, which shall be maintained in a secure location and used solely for compliance, regulatory, or legal-defense purposes, and not for any commercial purpose;
(b) The Receiving Party need not search for, identify, or purge Confidential Information that resides solely on automatic electronic backup or disaster-recovery systems or archival systems maintained in the ordinary course of business, provided that (i) such backup or archival systems are not readily accessible to persons who are not authorized to access such Confidential Information, and (ii) any Confidential Information retained on such systems shall remain subject to the confidentiality and use restrictions set forth in this Agreement for the full duration of its retention;
(c) The Receiving Party's Representatives that are accounting firms (including Glenmore Thornton LLP and Harwell & Dobson LLP), financial advisors (including Osprey Bancroft & Co. and Veridian Partners LLC), or other professional service providers may retain copies of Confidential Information and Derivative Materials in their files to the extent required by applicable professional standards, regulatory requirements, or internal document-retention policies, provided that such copies shall remain subject to the confidentiality and use restrictions set forth in this Agreement for the full duration of their retention.
5.3 Survival. The confidentiality and non-disclosure obligations set forth in this Agreement shall survive the return or destruction of any Confidential Information or Derivative Materials and shall remain in full force and effect for the Term specified in Section 8 hereof, regardless of whether such Confidential Information or Derivative Materials have been returned or destroyed in accordance with this Section 5.
SECTION 6: NO REPRESENTATION OR WARRANTY AS TO ACCURACY
6.1 Disclaimer. Each Party acknowledges and agrees that neither the Disclosing Party nor any of its Representatives makes, and neither the Disclosing Party nor any of its Representatives shall be deemed to have made, any representation or warranty, express or implied, as to the accuracy, completeness, reliability, fitness for any particular purpose, or sufficiency of any Confidential Information disclosed or made available hereunder. Without limiting the foregoing, the Disclosing Party and its Representatives expressly disclaim any and all representations and warranties, whether express or implied, including any implied warranties of merchantability or fitness for a particular purpose, with respect to the Confidential Information. The Receiving Party agrees that neither the Disclosing Party nor any of its Representatives shall have any liability whatsoever to the Receiving Party or any of its Representatives arising out of or relating to the use of, or reliance on, any Confidential Information, including any errors therein or omissions therefrom.
The Parties further acknowledge and agree that only those representations, warranties, and covenants that are made in a definitive written agreement executed and delivered by both Parties relating to the Transaction, when, as, and if such an agreement is executed, and subject to any terms, conditions, limitations, and qualifications set forth therein, shall have any legal force or effect. Unless and until such a definitive agreement has been executed and delivered, neither Party shall have any legal obligation of any kind whatsoever with respect to any Transaction by virtue of this Agreement or any written or oral expression with respect to such a Transaction, except for the matters specifically agreed to herein.
6.2 No Obligation to Disclose. Nothing in this Agreement shall be construed as obligating either Party to disclose any particular Confidential Information to the other Party or to make available any specific information, documents, or materials. Each Party reserves the right, in its sole and absolute discretion, to determine the scope and timing of any disclosure of Confidential Information, and to withhold any information that it determines, in its sole judgment, should not be disclosed. Furthermore, nothing in this Agreement shall be construed as obligating either Party to continue discussions or negotiations regarding the Transaction, and each Party acknowledges that either Party may determine, at any time and for any reason, not to proceed with the Evaluation or the Transaction.
SECTION 7: NO AGREEMENT; NO OBLIGATION TO TRANSACT
7.1 No Binding Agreement. The Parties acknowledge and agree that, unless and until a definitive written agreement regarding the Transaction has been executed and delivered by the Parties (or their respective affiliates), no contract or agreement providing for a Transaction shall be deemed to exist between the Parties, and neither Party shall have any obligation to the other Party to consummate any Transaction or to negotiate or enter into any definitive agreement relating to any Transaction. Without limiting the foregoing, the Parties acknowledge that any potential transaction structure — whether structured as a reverse triangular merger, forward merger, tender offer, share purchase, asset purchase, scheme of arrangement, or otherwise — shall be binding upon the Parties only upon the execution and delivery of a definitive agreement setting forth the specific terms and conditions thereof. No draft, term sheet, letter of intent, or other preliminary document shall constitute a binding agreement with respect to a Transaction unless such document expressly states that it is binding and is executed and delivered by both Parties.
7.2 Right to Terminate Discussions. Either Party may, at any time and for any reason or no reason, in its sole and absolute discretion, terminate discussions and negotiations regarding the Transaction without any liability to the other Party or any of its Representatives, except with respect to the surviving obligations of confidentiality, non-disclosure, standstill, non-solicitation, and other obligations that expressly survive such termination in accordance with the terms of this Agreement. Neither Party shall have any claim against the other Party or any of its Representatives for any costs, expenses, losses, damages, or liabilities incurred in connection with the Evaluation or any discussions or negotiations relating to the Transaction, except as may arise from a breach of this Agreement.
SECTION 8: TERM
8.1 Term of Agreement. This Agreement shall remain in full force and effect for a period of two (2) years from the Effective Date (i.e., through and including September 5, 2025) (the "Term"), unless earlier terminated by the mutual written agreement of the Parties or superseded by a definitive written agreement relating to the Transaction that expressly provides for the termination or supersession of this Agreement.
8.2 Survival. Notwithstanding the expiration or termination of this Agreement, the obligations of confidentiality, non-disclosure, and the restrictions on the use of Confidential Information set forth in Sections 2.1, 2.2, 2.3, 2.4, 5, and 6 shall survive for a period of two (2) years from the date of such expiration or termination (i.e., through and including September 5, 2027, assuming the Agreement runs for its full initial Term without earlier termination). Notwithstanding the foregoing, with respect to any Confidential Information that constitutes a trade secret under the Delaware Uniform Trade Secrets Act (6 Del. C. § 2001 et seq.) or any other applicable law, the obligations of confidentiality and non-disclosure shall continue for so long as such information remains a trade secret under applicable law, regardless of the expiration or termination of this Agreement or the survival period described above.
SECTION 9: REMEDIES
9.1 Irreparable Harm; Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of this Agreement may cause the Disclosing Party irreparable injury and harm, for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, the Parties agree that, in the event of any actual or threatened breach of any provision of this Agreement, the Disclosing Party shall be entitled to seek equitable relief, including temporary restraining orders, preliminary and permanent injunctions, and orders of specific performance, in any court of competent jurisdiction, in addition to all other remedies available at law or in equity. The Parties further agree that neither Party shall be required to post a bond or other security as a condition to obtaining any such equitable relief, and each Party hereby waives any requirement that the other Party post such a bond or other security. The pursuit of equitable relief by either Party shall not constitute a waiver of any right to pursue any other remedy available at law or in equity.
9.2 Indemnification. The Receiving Party shall indemnify, defend, and hold harmless the Disclosing Party and its Representatives from and against any and all losses, damages, liabilities, claims, actions, judgments, settlements, penalties, fines, costs, and expenses (including, without limitation, reasonable attorneys' fees and disbursements, expert witness fees, and costs of investigation and litigation) arising out of, resulting from, or in connection with any breach or violation of this Agreement by the Receiving Party or any of its Representatives. This indemnification obligation shall be in addition to, and not in limitation of, any other rights or remedies available to the Disclosing Party under this Agreement, at law, or in equity.
SECTION 10: MISCELLANEOUS
10.1 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflicts-of-law rules or principles that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each Party acknowledges that this choice-of-law provision has been freely negotiated and agreed upon, and that the application of Delaware law is appropriate given the Parties' relationships, the nature of the Transaction, and the connections of the Parties and the Transaction to the State of Delaware.
10.2 Jurisdiction and Venue. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery declines to accept jurisdiction, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware), for the resolution of any and all disputes, claims, actions, or proceedings arising under, out of, or in connection with this Agreement. Each Party irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in any such court and any claim that any such action or proceeding has been brought in an inconvenient forum. Each Party agrees that a final and non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law. Process in any such action or proceeding may be served on either Party in the manner specified for the delivery of notices in Section 10.6 hereof.
10.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and negotiations, whether written or oral, between the Parties relating to the confidentiality of information exchanged in connection with the Transaction or the Evaluation. There are no representations, warranties, covenants, or agreements between the Parties relating to the subject matter hereof other than those expressly set forth or referred to in this Agreement.
10.4 Amendment; Waiver. This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both Parties. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party granting such waiver. No waiver by either Party of any breach or default by the other Party under this Agreement shall be deemed a waiver of any subsequent breach or default, whether of the same or a different provision of this Agreement. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.
10.5 Assignment. Neither Party may assign, transfer, or delegate this Agreement or any of its rights, interests, or obligations hereunder without the prior written consent of the other Party, which consent may be withheld in the other Party's sole and absolute discretion; provided, however, that Solara may, without Cloudium's prior written consent, assign this Agreement (in whole or in part) to any affiliate of Solara (including, without limitation, Solara Digital Infrastructure Fund VI LP, Solara Fund VI GP LLC, or any co-investment vehicle organized or established in connection with the Transaction), so long as such assignee assumes in writing all of Solara's obligations under this Agreement and Solara remains jointly and severally liable for any breach of this Agreement by such assignee. Any attempted assignment in violation of this Section 10.5 shall be null and void and of no force or effect.
10.6 Notices. All notices, requests, demands, consents, waivers, and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given or made when: (a) delivered in person; (b) sent by a nationally recognized overnight courier service (with confirmation of delivery); (c) sent by registered or certified mail, return receipt requested, postage prepaid; or (d) sent by email (with confirmation of receipt by the recipient), in each case addressed as follows:
If to Solara:
Solara Digital Infrastructure LP 1200 Market Street, Suite 3400 Wilmington, Delaware 19801
Attention: Marcus Elliston, Founder & Managing Partner
Email: melliston@solaradigital.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue New York, New York 10022
Attention: Harrison Wexford
Email: hwexford@calderwoodharkness.com
If to Cloudium:
Cloudium Technologies plc 600 Townsend Street, Suite 800 San Francisco, California 94103
Attention: Nadia Chowdhury, General Counsel
Email: nchowdhury@cloudium.com
with a copy (which shall not constitute notice) to:
Ridgeway Phelps & Sato LLP 375 Park Avenue New York, New York 10152
Attention: Catherine Answorth
Email: cansworth@ridgewayphelps.com
Either Party may change its address for the receipt of notices by providing written notice of such change to the other Party in accordance with this Section 10.6. Notices delivered in person or by overnight courier shall be effective upon receipt. Notices sent by registered or certified mail shall be effective three (3) business days after deposit in the mail. Notices sent by email shall be effective upon confirmation of receipt by the recipient (excluding any automated "out of office" or similar responses).
10.7 Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of counterparts of this Agreement by facsimile, portable document format (PDF), or other electronic means (including through electronic signature platforms such as Brightwater Software or Ashford Health IT) shall be sufficient to bind the Parties, and signatures transmitted by facsimile, PDF, or other electronic means shall be deemed original signatures and shall have the same force and effect as original ink signatures for all purposes.
10.8 Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction or other governmental authority to be invalid, void, illegal, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any Party. In the event of any such holding, the Parties shall negotiate in good faith to modify this Agreement to fulfill, as closely as possible, the original intent of the Parties as reflected in the provision(s) so held to be invalid, void, illegal, or unenforceable.
10.9 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity other than the Parties and their respective Representatives any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, each Party's Representatives are intended third-party beneficiaries of the provisions of this Agreement that are applicable to them, and shall be entitled to enforce such provisions as if they were parties hereto; provided, however, that no Representative shall have any right to amend, modify, waive, or terminate any provision of this Agreement.
10.10 Publicity; No Public Disclosure. Neither Party shall, without the prior written consent of the other Party (which consent may be withheld in such other Party's sole and absolute discretion), make any public statement, press release, or other public disclosure regarding: (a) the existence of this Agreement; (b) the fact that Confidential Information has been made available hereunder or that discussions or negotiations are taking place between the Parties concerning the Transaction; or (c) any of the terms, conditions, or other facts with respect to the Transaction, including the status thereof or the identity of the Parties or their respective Representatives involved in the Evaluation.
Notwithstanding the foregoing, this restriction on public disclosure shall not apply to disclosures that are required by applicable law (including the Securities Act of 1933, as amended, and the Exchange Act) or the rules and regulations of any stock exchange (including the Nasdaq Stock Market LLC) or self-regulatory organization, provided that the disclosing Party uses commercially reasonable efforts to provide the other Party with advance written notice of such required disclosure to the extent practicable, and cooperates with the other Party in seeking confidential treatment of such disclosure to the extent available.
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SIGNATURE PAGE TO MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
IN WITNESS WHEREOF, the Parties have caused this Mutual Confidentiality and Non-Disclosure Agreement to be executed as of the date first written above by their respective duly authorized representatives.
SOLARA DIGITAL INFRASTRUCTURE LP
By: Solara Digital GP LLC, its General Partner
By: ________
Name: Marcus Elliston
Title: Managing Partner
Date: September 5, 2023
CLOUDIUM TECHNOLOGIES PLC
By: ________
Name: Nadia Chowdhury
Title: General Counsel
Date: September 5, 2023