1041-00003 · Solara Digital Infrastructure LP · Transaction Documents/Ancillary Agreements

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NON-COMPETITION AND NON-SOLICITATION AGREEMENT

Dated as of January 22, 2024

by and between

SOLARA DIGITAL INFRASTRUCTURE FUND VI LP

and

JONATHAN HARGROVE

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

This Non-Competition and Non-Solicitation Agreement (this "Agreement") is entered into as of January 22, 2024, by and between:

(1) Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI" or the "Buyer"), with its principal office at 1200 Market Street, Suite 3400, Wilmington, DE 19801, acting by its general partner, Solara Fund VI GP LLC, a Delaware limited liability company; and

(2) Jonathan Hargrove, an individual (the "Executive"), currently serving as Chief Executive Officer of Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) (the "Company"), with its United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, CA 94103.

Fund VI and Executive are each referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS:

A. Fund VI, the Company, and Stratos Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Fund VI ("Merger Sub"), have entered into that certain Agreement and Plan of Merger, dated as of January 22, 2024 (as may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), pursuant to which, among other things, Merger Sub will merge with and into the Company in a reverse triangular merger, with the Company surviving as a wholly owned subsidiary of Fund VI (the "Merger"), for aggregate consideration of Six Billion Eight Hundred Million Dollars ($6,800,000,000), representing Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share of common stock of the Company;

B. Executive currently serves as the Chief Executive Officer of the Company and beneficially holds 7,736,400 shares of common stock of the Company, representing approximately 4.2% of the 184,200,000 shares of common stock outstanding as of the date hereof, and Executive is a party to that certain Rollover Agreement, dated as of January 22, 2024 (the "Rollover Agreement"), by and between Fund VI and Executive, pursuant to which Executive has agreed to roll over fifty percent (50%) of his equity holdings (representing equity value of approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544), based on the per-share merger consideration) into equity interests in the Surviving Corporation, with the balance of Executive's shares being cashed out at the per-share merger consideration of $36.92;

C. Executive possesses intimate knowledge of the Company's business, operations, trade secrets, customer relationships, proprietary technology, competitive strategies, and goodwill, and throughout his tenure as Chief Executive Officer has had extensive and privileged access to confidential and proprietary information developed, compiled, and maintained by the Company and its subsidiaries;

D. The Company is a leading provider of cloud-native enterprise resource planning ("ERP"), customer-relationship management ("CRM"), and business-intelligence ("BI") software-as-a-service ("SaaS") solutions serving mid-market and enterprise customers on a global basis, with approximately 6,800 employees across the United States, the United Kingdom, India, and Germany, and with annual recurring revenue ("ARR") of One Billion Seven Hundred Forty Million Dollars ($1,740,000,000) as of December 31, 2023;

E. Executive's execution, delivery, and performance of this Agreement is a condition to the Buyer's willingness to consummate the Merger and constitutes a material inducement for the Buyer to enter into the Merger Agreement and to make the substantial equity investment contemplated thereby, and but for Executive's agreement to the covenants contained herein, the Buyer would not have entered into the Merger Agreement or agreed to consummate the Merger on the terms set forth therein;

F. Executive acknowledges that he will receive substantial direct and indirect benefits from the consummation of the Merger, including (i) cash consideration for the cashed-out portion of his shares at the per-share merger consideration of $36.92, (ii) ongoing equity participation in the Surviving Corporation through the Rollover Agreement, (iii) continued employment with the Surviving Corporation following the Closing, and (iv) the enhancement of the value of his rolled-over equity interests through the resources and strategic direction of Fund VI, all of which constitute adequate and independent consideration for the covenants and obligations of Executive set forth herein, separate and apart from any other consideration; and

G. This Agreement is being executed and delivered concurrently with the execution and delivery of the Merger Agreement, the Rollover Agreement (Executive), the Voting and Support Agreement between Fund VI and Executive (the "Voting Agreement"), and certain other related transaction documents, and the obligations of the Parties hereunder are an integral part of, and are being entered into in connection with, the transactions contemplated by the Merger Agreement and such related documents.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the consummation of the Merger, the consideration to be received by Executive in connection therewith (including the cash merger consideration and the rollover equity interests), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms

As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Merger Agreement.

"Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, with respect to Fund VI, the term "Affiliate" shall include Solara Digital Infrastructure LP, Solara Digital GP LLC, Solara Fund VI GP LLC, Solara Digital Co-Invest VI-A LP, and any portfolio company of Fund VI or any of the foregoing entities.

"Business" means the design, development, marketing, licensing, sale, support, hosting, and maintenance of cloud-native enterprise resource planning (ERP), customer-relationship management (CRM), business intelligence (BI), and related SaaS software solutions for mid-market and enterprise customers, including all lines of business and product offerings conducted by the Company and its direct and indirect subsidiaries (including, without limitation, Cloudium Technologies UK Ltd., Cloudium Technologies India Pvt. Ltd., and Cloudium Solutions GmbH) as of the date hereof and as of the Closing Date, including the development, marketing, and provision of any products, services, or solutions that are substantially similar to, or competitive with, any products, services, or solutions offered, under development, or planned by the Company Group as of the date hereof or as of the Closing Date.

"Closing" means the closing of the Merger as defined in, and subject to the terms and conditions of, the Merger Agreement.

"Closing Date" means the date on which the Closing occurs, which is anticipated to occur on or about the Scheduled Outside Date of June 30, 2024, as set forth in the Merger Agreement. For the avoidance of doubt, the actual Closing Date may differ from such anticipated date, and all references to the Closing Date herein shall refer to the actual date on which the Closing occurs.

"Company Group" means the Company and its direct and indirect subsidiaries, including (a) Cloudium Technologies UK Ltd., a private limited company incorporated under the laws of England and Wales (Company No. 11287456), (b) Cloudium Technologies India Pvt. Ltd., a private limited company organized under the laws of India, with its registered office in Bangalore, Karnataka, India, and (c) Cloudium Solutions GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of the Federal Republic of Germany, with its registered office in Berlin, Germany, and, following the Closing, the Surviving Corporation and its direct and indirect subsidiaries.

"Competing Enterprise" means any Person (other than the Company, the Surviving Corporation, or any of their respective Affiliates) that is engaged in, or that has taken material steps to prepare to engage in, the Business or any material portion thereof, anywhere in the Restricted Territory. For the avoidance of doubt, a Competing Enterprise shall include, without limitation, any Person that directly or indirectly develops, markets, sells, licenses, hosts, or supports cloud-native ERP, CRM, or BI SaaS solutions for mid-market or enterprise customers in competition with the Business, regardless of whether such Person also engages in other lines of business that do not compete with the Business.

"Confidential Information" means all information, data, knowledge, and materials, in whatever form or medium (whether written, oral, electronic, visual, or otherwise), that relate to the Business, the Company Group, or the Surviving Corporation and that are not generally known to or readily ascertainable by the public, including, without limitation: (a) trade secrets and proprietary technology, including source code, object code, algorithms, data architectures, software designs, technical specifications, and development methodologies; (b) customer lists, customer data, customer purchasing histories, and customer preferences; (c) pricing strategies, discount structures, and competitive pricing analyses; (d) product roadmaps, development plans, and product pipeline information; (e) financial information, including revenue data, ARR and other recurring revenue metrics, cost structures, margin analyses, budgets, forecasts, and projections; (f) strategic plans, business plans, marketing plans, and expansion strategies; (g) vendor and supplier terms, agreements, and pricing; (h) employee compensation data, benefit structures, retention strategies, and organizational plans; (i) information regarding pending or threatened litigation, regulatory proceedings, or governmental investigations; (j) research and development activities, inventions, and patent applications; and (k) all other non-public information relating to the Business, the Company Group, or the Surviving Corporation. Notwithstanding the foregoing, "Confidential Information" shall not include information that (x) is or becomes publicly available other than as a result of a direct or indirect disclosure by Executive or any Person acting on Executive's behalf in violation of this Agreement or any other confidentiality obligation, or (y) is independently developed by Executive after the termination of his employment with the Surviving Corporation and its Affiliates without reference to or use of any Confidential Information.

"Effective Date" means the Closing Date.

"Key Customer" means any customer of the Company Group that generated annual recurring revenue of Five Million Dollars ($5,000,000) or more in the twelve (12)-month period ending on the Closing Date, including, without limitation, Aegis Federal Solutions Inc. (which generated approximately Eighty-Four Million Dollars ($84,000,000) in ARR during such period), and any customer identified as a "Key Customer" on the books and records of the Company Group as of the Closing Date.

"Key Employee" means any individual who, as of the date hereof or at any time during the Restricted Period, (a) holds a title of Vice President or above within the Company Group or the Surviving Corporation or any of their respective Affiliates, (b) is a member of the Company's executive leadership team (or any successor body within the Surviving Corporation), or (c) is identified on Schedule A attached hereto and incorporated herein by reference. For purposes of the non-solicitation covenants set forth in Section 3.1(b), a "Key Employee" shall also include any individual who was a Key Employee at any time during the six (6)-month period preceding the applicable solicitation, hiring, or engagement.

"Merger Agreement" means the Agreement and Plan of Merger, dated as of January 22, 2024, among the Company, Stratos Merger Sub Inc., and Fund VI, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.

"Person" means any individual, corporation, limited liability company, partnership, limited partnership, joint venture, association, trust, unincorporated organization, governmental authority or agency, or any other entity or body of whatever nature, including any group (as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).

"Restricted Period" means (a) with respect to the non-competition covenant set forth in Section 3.1(a), the period commencing on the Closing Date and ending on the date that is thirty-six (36) months following the Closing Date (such period, the "Non-Competition Period"); and (b) with respect to the non-solicitation covenants set forth in Section 3.1(b) and Section 3.1(c) and the non-interference covenant set forth in Section 3.1(d), the greater of (i) the Non-Competition Period and (ii) the period ending twenty-four (24) months following the date of termination of Executive's employment with the Surviving Corporation or any of its Affiliates, if such termination occurs during the Non-Competition Period. For the avoidance of doubt, in no event shall the Restricted Period with respect to any covenant be shorter than the Non-Competition Period.

"Restricted Territory" means worldwide, including, without limitation, the United States, the United Kingdom, India, Germany, and all other countries and jurisdictions in which the Company Group operates, has customers, or generates revenue as of the date hereof or as of the Closing Date. The Parties acknowledge and agree that the worldwide scope of the Restricted Territory is appropriate and reasonable given the global nature of the Company Group's operations, customer base, and competitive landscape.

"Rollover Agreement" means the Rollover Agreement, dated as of January 22, 2024, by and between Fund VI and Executive, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.

"Surviving Corporation" means the Company as the surviving corporation following the consummation of the Merger, together with its successors and assigns.

Section 1.2 — Interpretation

Unless the context otherwise requires, the following rules of construction shall apply to this Agreement:

(a) References to this Agreement, the Merger Agreement, the Rollover Agreement, and any other agreement or document shall be to such agreement or document as amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.

(b) The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.

(c) The word "including" (and all grammatical variations thereof) shall mean "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(d) Unless the context otherwise requires, words in the singular shall include the plural and vice versa, and words in one gender shall include all genders.

(e) References to "Sections," "Articles," and "Schedules" are to sections, articles, and schedules of or to this Agreement, unless otherwise specified.

(f) The words "herein," "hereof," "hereunder," "hereby," and "hereto" refer to this Agreement as a whole and not to any particular provision of this Agreement.

(g) The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event of any ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

(h) References to "days" shall mean calendar days unless otherwise specified; provided that if the last day of any period falls on a Saturday, Sunday, or legal holiday in the State of Delaware, such period shall be extended to the next business day.

(i) All dollar amounts referenced herein are in United States Dollars unless otherwise specified.

ARTICLE II — EFFECTIVENESS AND TERM

Section 2.1 — Effective Date

This Agreement shall become effective as of the Closing Date. Prior to the Closing Date, the covenants and obligations of Executive under Article III of this Agreement shall not be operative, and Executive shall have no obligations under such Article III. In the event that the Merger Agreement is terminated prior to the Closing in accordance with its terms without the Merger being consummated, this Agreement shall automatically and without further action by either Party be null and void and of no force or effect, and neither Party shall have any rights, obligations, or liabilities hereunder. For the avoidance of doubt, the execution and delivery of this Agreement prior to the Closing Date shall not in and of itself create any binding obligation on Executive with respect to the restrictive covenants set forth in Article III, except that the obligations of Executive under Section 3.2 (Confidentiality) with respect to Confidential Information received by Executive on or after the date hereof shall be binding upon Executive from and after the date hereof.

Section 2.2 — Term

The covenants and obligations of Executive under Article III (other than Section 3.2) shall remain in full force and effect for the full duration of the Restricted Period applicable to each such covenant, as set forth in the definition of "Restricted Period" in Section 1.1 and as may be extended pursuant to Section 5.2. The confidentiality obligations of Executive under Section 3.2 shall survive the expiration of the Restricted Period and shall continue indefinitely following the date hereof; provided, however, that with respect to any item of Confidential Information that constitutes a "trade secret" under the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., or any applicable state trade secret law, Executive's obligations with respect to such trade secret shall continue for so long as such information remains a trade secret under applicable law. The non-disparagement obligations set forth in Section 3.3 shall survive the expiration of the Restricted Period and shall continue indefinitely. The provisions of Article IV (Acknowledgments and Reasonableness), Article V (Remedies), Article VI (Judicial Modification), and Article VIII (General Provisions) shall survive the expiration of the Restricted Period and any termination of Executive's employment with the Surviving Corporation or its Affiliates.

ARTICLE III — RESTRICTIVE COVENANTS

Section 3.1 — Non-Competition and Non-Solicitation Covenants

Section 3.1(a) — Non-Competition. During the Restricted Period (being thirty-six (36) months from the Closing Date, as may be extended pursuant to Section 5.2), Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:

(i) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of, any Competing Enterprise in the Restricted Territory, whether as a proprietor, partner, member, stockholder, investor, lender, guarantor, joint venturer, or in any other capacity;

(ii) serve as an officer, director, employee, partner, member, manager, consultant, agent, advisor, or independent contractor of or to any Competing Enterprise, or otherwise provide services (whether compensated or uncompensated) to any Competing Enterprise that relate to, or are substantially similar to, the services provided by Executive to the Company or the Business;

(iii) acquire or hold (other than passive investments of less than two percent (2%) of the outstanding equity securities of any class of securities of any publicly traded company, provided that Executive does not otherwise participate in the management of, or exercise any influence over, such company) any equity, debt, or other financial interest in any Competing Enterprise; or

(iv) assist, encourage, facilitate, or advise any Person in connection with any of the activities described in clauses (i) through (iii) above, including by providing strategic advice, introductions, referrals, financing, or other material support to any Competing Enterprise.

For purposes of clarification, the restrictions in this Section 3.1(a) shall not prohibit Executive from (A) engaging in charitable, civic, educational, or philanthropic activities, provided that such activities do not interfere with Executive's obligations hereunder and are not conducted on behalf of or for the benefit of a Competing Enterprise; (B) serving on the board of directors or advisory board of any Person that is not a Competing Enterprise, provided that such service does not interfere with Executive's obligations hereunder; or (C) managing Executive's personal investments, provided that such investments comply with the passive investment exception set forth in clause (iii) above.

Section 3.1(b) — Non-Solicitation of Employees. During the Restricted Period (being thirty-six (36) months from the Closing Date, subject to extension as provided in the definition of "Restricted Period" in Section 1.1 and in Section 5.2), Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:

(i) solicit, recruit, induce, encourage, or attempt to solicit, recruit, induce, or encourage, any Key Employee (or any individual who was a Key Employee within the six (6)-month period preceding such solicitation, recruitment, inducement, or encouragement) to terminate, reduce, or alter his or her employment, engagement, or other business relationship with the Company Group, the Surviving Corporation, or any of their respective Affiliates; or

(ii) hire or engage (as an employee, independent contractor, consultant, or in any other capacity, whether on a full-time, part-time, temporary, or permanent basis) any Key Employee, or any individual who was a Key Employee within the six (6)-month period preceding such hiring or engagement, for the purpose of having such individual perform services for Executive or any Person other than the Company Group, the Surviving Corporation, or any of their respective Affiliates.

Notwithstanding the foregoing, the restrictions set forth in this Section 3.1(b) shall not be deemed to be violated by (A) general solicitations of employment not specifically directed at employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates, including published job advertisements in newspapers, trade journals, or online job boards of general circulation, career fairs, or solicitations by recruitment firms or search firms that are not specifically directed by Executive to target employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates; provided, however, that this exception shall not apply if Executive directly or indirectly directed, encouraged, or instructed any such recruitment firm, search firm, or other third party to target or contact any Key Employee or any employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates; or (B) providing a personal reference for a Key Employee in response to an unsolicited request, provided that Executive does not in connection therewith solicit, recruit, induce, or encourage such Key Employee to terminate or alter his or her employment.

Section 3.1(c) — Non-Solicitation of Customers. During the Restricted Period, Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:

(i) solicit, divert, or take away (or attempt to solicit, divert, or take away) the business of any Key Customer, or any customer of the Company Group with whom Executive had a material business relationship or about whom Executive received Confidential Information during the twenty-four (24)-month period preceding the Closing Date, for the purpose of providing, offering, or marketing any products, services, or solutions that compete with, or are substantially similar to, the products, services, or solutions offered by the Business; or

(ii) encourage, induce, or attempt to encourage or induce any Key Customer or any customer of the Company Group to reduce, terminate, cancel, not renew, or materially modify in a manner adverse to the Company Group or the Surviving Corporation, its business relationship, contractual arrangements, or purchasing commitments with the Company Group, the Surviving Corporation, or any of their respective Affiliates.

The Parties specifically acknowledge and agree that the Key Customers include, without limitation, Aegis Federal Solutions Inc. (which generated approximately Eighty-Four Million Dollars ($84,000,000) in ARR during the twelve (12)-month period ending December 31, 2023), and Executive acknowledges that he has had an extensive material business relationship with, and has received substantial Confidential Information regarding, Aegis Federal Solutions Inc. and other Key Customers during his tenure as Chief Executive Officer.

Section 3.1(d) — Non-Interference. During the Restricted Period, Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person, interfere with, disrupt, or attempt to interfere with or disrupt, any existing or prospective business relationship between the Company Group (or the Surviving Corporation or any of their respective Affiliates) and any vendor, supplier, distributor, technology partner, strategic alliance partner, reseller, systems integrator, or other counterparty, including, without limitation, Helix Data Systems GmbH. Without limiting the generality of the foregoing, Executive shall not, during the Restricted Period, solicit, induce, or encourage any such vendor, supplier, distributor, technology partner, strategic alliance partner, reseller, systems integrator, or other counterparty to terminate, reduce, or materially modify in a manner adverse to the Company Group or the Surviving Corporation its business relationship with the Company Group, the Surviving Corporation, or any of their respective Affiliates.

Section 3.2 — Confidentiality

(a) Non-Disclosure and Non-Use. Executive shall not, at any time after the date hereof (whether during or after the Restricted Period, and whether during or after Executive's employment with the Surviving Corporation or any of its Affiliates), directly or indirectly, disclose, furnish, publish, disseminate, make available, or use for his own benefit or the benefit of any third party, any Confidential Information, except:

(i) in the performance of Executive's duties for and on behalf of the Surviving Corporation or any of its Affiliates, and then only to the extent reasonably necessary for the performance of such duties and in accordance with any applicable policies and procedures of the Surviving Corporation;

(ii) as required by applicable law, rule, regulation, or order of any court of competent jurisdiction, governmental authority, or regulatory body, or by any legal or arbitral proceeding (provided that Executive shall, to the extent permitted by applicable law, (A) provide Fund VI and the Surviving Corporation with prompt written notice of such requirement prior to any such disclosure (and in any event no later than five (5) business days after receipt of such requirement or, if compliance with such requirement is required in fewer than five (5) business days, as promptly as reasonably practicable), (B) cooperate in good faith with Fund VI and the Surviving Corporation in any efforts to obtain a protective order, confidential treatment, or other appropriate remedy to prevent or limit such disclosure, and (C) disclose only that portion of the Confidential Information that Executive is legally required to disclose based on the advice of Executive's counsel); or

(iii) as otherwise authorized in advance in writing by Fund VI or the Surviving Corporation.

(b) Supplemental Nature of Obligations. The obligations of Executive under this Section 3.2 are in addition to, and not in limitation or substitution of, any confidentiality, non-disclosure, or intellectual property obligations that Executive may have under any other agreement, including, without limitation, any employment agreement, offer letter, proprietary information and inventions assignment agreement, the Rollover Agreement, the Merger Agreement, or any other agreement between Executive and the Company, the Surviving Corporation, Fund VI, or any of their respective Affiliates. In the event of any conflict between the confidentiality provisions of this Agreement and those of any such other agreement, the more restrictive provision shall control.

(c) Return and Destruction of Confidential Information. Upon the termination of Executive's employment with the Surviving Corporation or any of its Affiliates for any reason (or at any earlier time upon the written request of Fund VI or the Surviving Corporation), Executive shall promptly return to the Surviving Corporation all documents, files, records, materials, equipment, and other tangible and intangible property (including all copies, notes, summaries, excerpts, and derivative works thereof, whether in physical or electronic form) in Executive's possession, custody, or control that contain, reflect, or are derived from Confidential Information. Executive shall not retain any copies, reproductions, or summaries of any Confidential Information following such return, and shall, if requested by Fund VI or the Surviving Corporation, certify in writing Executive's compliance with this Section 3.2(c). Notwithstanding the foregoing, Executive may retain (i) personal copies of documents relating solely to Executive's personal compensation, benefits, or tax obligations, and (ii) Executive's personal contacts and personal rolodex information, subject in each case to Executive's continuing confidentiality obligations hereunder.

(d) Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Executive is hereby notified that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.

Section 3.3 — Non-Disparagement

(a) Executive's Obligations. Executive shall not, at any time during or after the Restricted Period, directly or indirectly, make, publish, or communicate (whether orally, in writing, electronically, or through any social media platform, press release, interview, blog, or other medium of communication) any statement that disparages, defames, libels, slanders, or casts in a negative light Fund VI, the Surviving Corporation, the Company Group, Solara Digital Infrastructure LP, or any of their respective Affiliates, officers, directors, partners, members, managers, employees, agents, products, services, business practices, financial condition, or reputation. The foregoing shall not prohibit (i) truthful testimony compelled by valid legal process or otherwise required by applicable law, rule, or regulation, (ii) statements made in the course of any litigation, arbitration, mediation, or other dispute resolution proceeding between the Parties or involving Executive, or (iii) good-faith communications made privately to Executive's attorney, financial advisor, or accountant in connection with the receipt of professional advice, provided that Executive instructs such advisor to maintain the confidentiality of such communications.

(b) Mutual Non-Disparagement. Fund VI agrees that, following the Closing Date, it shall instruct its senior personnel (including the partners and managing directors of Solara Digital Infrastructure LP and Solara Fund VI GP LLC) and the officers and directors of the Surviving Corporation not to make, publish, or communicate any statement that disparages, defames, libels, slanders, or casts in a negative light Executive or Executive's personal or professional reputation. This undertaking shall not restrict Fund VI, the Surviving Corporation, or their respective personnel from making truthful statements required by applicable law, rule, or regulation, compelled by valid legal process, or made in connection with any litigation, arbitration, or dispute resolution proceeding.

ARTICLE IV — ACKNOWLEDGMENTS AND REASONABLENESS

Section 4.1 — Acknowledgment of Reasonableness

Executive acknowledges, represents, and agrees that:

(a) The restrictive covenants set forth in Article III are reasonable and necessary in scope, duration, and geographic extent and are designed to protect the legitimate business interests of Fund VI, the Surviving Corporation, and the Company Group, including, without limitation, the protection of goodwill acquired and paid for in connection with the Merger, the protection of Confidential Information and trade secrets, the preservation of valuable and long-standing customer relationships, and the maintenance of a stable, skilled, and experienced workforce. Executive further acknowledges that the Business is conducted on a global basis, that the Company Group's customers, employees, vendors, and partners are located throughout the world, and that a geographic restriction narrower than worldwide would be insufficient to protect such legitimate business interests.

(b) Executive's position as Chief Executive Officer of the Company, his extensive tenure in such role, and his decision to roll over approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544) in equity into equity interests in the Surviving Corporation pursuant to the Rollover Agreement, provide Executive with unique insight into, access to, and ongoing economic interest in the Business and the operations, strategies, customer relationships, technology, and goodwill of the Company Group and the Surviving Corporation, and such unique position would enable Executive, in the absence of the covenants herein, to cause substantial competitive harm to Fund VI, the Surviving Corporation, and the Company Group.

(c) The consideration provided to Executive in connection with the Merger, including (i) the per-share cash consideration of Thirty-Six Dollars and Ninety-Two Cents ($36.92) for Executive's cashed-out shares, (ii) the rollover equity interests in the Surviving Corporation, (iii) Executive's continued employment with the Surviving Corporation, and (iv) the other benefits to be received by Executive in connection with the transactions contemplated by the Merger Agreement, constitutes adequate, sufficient, and independent consideration for the covenants and obligations of Executive set forth in this Agreement.

(d) Enforcement of the restrictive covenants set forth in Article III will not impose an undue hardship on Executive given Executive's skills, education, professional experience, and the breadth of opportunities available to Executive in fields and activities that do not compete with the Business. Executive acknowledges that he possesses substantial financial resources and professional qualifications that will enable him to earn a livelihood during and after the Restricted Period without engaging in activities that violate the covenants herein.

(e) The worldwide scope of the Restricted Territory is appropriate and reasonable in light of the fact that the Company Group operates across, and serves customers in, the United States, the United Kingdom, India, Germany, and numerous other jurisdictions globally, and the Business is conducted through digital and cloud-based platforms that are accessible and competitive on a global basis. Executive further acknowledges that the thirty-six (36)-month duration of the Non-Competition Period is reasonable and appropriate in the context of a merger transaction of this magnitude and the substantial consideration received by Executive.

Section 4.2 — Independent Covenants

Each of the restrictive covenants set forth in Article III constitutes an independent covenant and agreement by Executive that is separately and independently enforceable from each other restrictive covenant. The existence of any claim or cause of action of Executive against Fund VI, the Surviving Corporation, or any of their respective Affiliates, whether arising under this Agreement or otherwise, shall not constitute a defense to the enforcement of any restrictive covenant set forth in Article III and shall not entitle Executive to an injunction, restraining order, or other equitable relief preventing the enforcement of any such covenant.

ARTICLE V — REMEDIES

Section 5.1 — Equitable Relief

Executive acknowledges and agrees that a breach or threatened breach by Executive of any of the restrictive covenants set forth in Article III would cause irreparable harm to Fund VI, the Surviving Corporation, and the Company Group for which monetary damages alone would be an insufficient and inadequate remedy. Accordingly, Executive agrees that Fund VI and the Surviving Corporation (and, as applicable, any other third-party beneficiary identified in Section 8.11) shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief and orders of specific performance, in addition to any other remedies available at law or in equity, in any court of competent jurisdiction, to prevent or restrain any such breach or threatened breach, without the necessity of (a) proving actual damages or the inadequacy of monetary damages, (b) posting any bond or other security, or (c) establishing the absence of an adequate remedy at law. The Parties acknowledge that any requirement of a bond or other security in connection with such injunctive relief is hereby waived to the fullest extent permitted by applicable law. The right to obtain equitable relief under this Section 5.1 shall be in addition to, and not in lieu of, any right to recover monetary damages (including consequential and incidental damages) or to exercise any other remedy available at law or in equity, and the exercise of any such right or remedy shall not preclude the exercise of any other right or remedy.

Section 5.2 — Extension of Restricted Period

If Executive breaches any of the restrictive covenants set forth in Article III, the Restricted Period applicable to such covenant (and, at the election of Fund VI, the Restricted Period applicable to all covenants in Article III) shall be tolled during the period of such breach and shall be extended by a period of time equal to the duration of such breach, so that Fund VI, the Surviving Corporation, and the Company Group receive the full benefit of the agreed-upon restricted period. Executive acknowledges that this tolling and extension provision is reasonable and necessary to ensure that Executive does not benefit from his own breach of this Agreement.

Section 5.3 — Forfeiture and Clawback

In the event of a material breach by Executive of any of the covenants set forth in Article III (as determined by Fund VI in good faith or as determined by a court of competent jurisdiction), Fund VI shall be entitled, in addition to all other remedies available hereunder or at law or in equity, to:

(a) cause the immediate forfeiture and cancellation of any unvested equity interests held by Executive in the Surviving Corporation that were issued to Executive pursuant to the Rollover Agreement or any other equity incentive plan, grant, or arrangement, without any payment or consideration to Executive in respect of such forfeited equity interests; and

(b) recover and claw back from Executive any amounts previously paid or payable to Executive under any applicable incentive compensation, bonus, severance, or retention arrangements (whether pursuant to the Rollover Agreement, any employment agreement, or otherwise), to the extent such recovery is not prohibited by applicable law.

Executive acknowledges that the forfeiture and clawback remedies set forth in this Section 5.3 are reasonable in light of the substantial consideration received by Executive in connection with the Merger and the importance of the restrictive covenants to Fund VI's willingness to consummate the Merger. Nothing in this Section 5.3 shall be construed to limit or reduce any other rights or remedies of Fund VI, the Surviving Corporation, or any other Person under this Agreement, any other agreement, or applicable law.

Section 5.4 — Attorneys' Fees

In any action, suit, or proceeding brought to enforce any provision of this Agreement, to obtain a declaration of rights under this Agreement, or in connection with any alleged breach of this Agreement, the prevailing party (as determined by the applicable court or tribunal) shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, costs, and expenses incurred in connection with such action, suit, or proceeding, including any fees and costs incurred in connection with any appeal, and including fees of expert witnesses, court costs, and other out-of-pocket litigation expenses.

ARTICLE VI — JUDICIAL MODIFICATION

Section 6.1 — Blue Pencil / Reformation

If any court of competent jurisdiction shall at any time determine that any restrictive covenant contained in Article III of this Agreement is unenforceable as written because it is too broad in scope, too long in duration, or too expansive in geographic extent, or is otherwise unreasonable or invalid in any respect, the Parties expressly authorize and request such court to reform, modify, and construe such provision to the maximum extent enforceable under applicable law, and to enforce such provision as so reformed, modified, and construed. The Parties intend that the restrictive covenants be enforced to the fullest extent permitted by applicable law, and the Parties hereby expressly authorize judicial modification ("blue penciling") to preserve the enforceability and intent of such covenants to the greatest extent possible. In the event that any provision of Article III is held to be wholly unenforceable despite such reformation, such holding shall not affect the enforceability of any other provision of Article III or any other provision of this Agreement, each of which shall be enforced to the fullest extent permitted by applicable law. The Parties acknowledge that the restrictive covenants set forth in Article III were negotiated at arm's length, with the benefit of experienced legal counsel, and in the context of a significant and highly negotiated transaction, and that the Parties' mutual intent is for such covenants to be enforced as written, subject only to judicial reformation to the extent strictly required by applicable law.

ARTICLE VII — REPRESENTATIONS AND WARRANTIES

Section 7.1 — Executive's Representations

Executive represents and warrants to Fund VI as follows:

(a) Capacity. Executive has the legal capacity, competence, and authority to execute, deliver, and perform this Agreement. No approval, consent, or authorization of, or filing, registration, or qualification with, any governmental authority or other third party is required in connection with Executive's execution, delivery, and performance of this Agreement.

(b) No Conflicts. The execution, delivery, and performance by Executive of this Agreement do not and will not (i) violate, conflict with, or result in a breach of, any law, rule, regulation, order, judgment, or decree applicable to Executive, or (ii) violate, conflict with, result in a breach of, constitute a default under, or require any consent or approval under, any contract, agreement, arrangement, commitment, or other obligation to which Executive is a party or by which Executive or any of Executive's assets or properties may be bound or affected.

(c) Opportunity to Review. Executive has had a full and adequate opportunity to review and consider this Agreement and to consult with legal counsel of his own choosing regarding the terms, conditions, and legal effect of this Agreement. Executive has, in fact, consulted with and received the advice of his own legal counsel prior to executing this Agreement. Executive fully understands the terms and provisions of this Agreement, including the scope, duration, and effect of the restrictive covenants contained in Article III.

(d) Voluntary Execution. Executive is entering into this Agreement voluntarily, of his own free will, and with full knowledge and understanding of its terms, conditions, and legal consequences. Executive is not entering into this Agreement under duress, coercion, or undue influence of any kind.

(e) Adequate Consideration. Executive acknowledges and agrees that the consideration to be received by Executive in connection with the Merger and the related transactions, as described in the Recitals and Section 4.1(c), constitutes adequate, valuable, and legally sufficient consideration for Executive's covenants and obligations under this Agreement.

Section 7.2 — Fund VI's Representations

Fund VI represents and warrants to Executive as follows:

(a) Organization and Standing. Fund VI is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Solara Fund VI GP LLC, a Delaware limited liability company, is the sole general partner of Fund VI and is duly organized, validly existing, and in good standing under the laws of the State of Delaware.

(b) Power and Authority. Fund VI has the requisite limited partnership power and authority to execute, deliver, and perform this Agreement. The execution, delivery, and performance of this Agreement by Fund VI have been duly and validly authorized by all necessary action on the part of Fund VI and its general partner, Solara Fund VI GP LLC, including all necessary approvals and authorizations of the partners and members, as applicable. No other proceedings on the part of Fund VI or Solara Fund VI GP LLC are necessary to authorize the execution, delivery, and performance of this Agreement.

(c) Valid and Binding Obligation. This Agreement has been duly and validly executed and delivered by Fund VI and constitutes a legal, valid, and binding obligation of Fund VI, enforceable against Fund VI in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, or similar laws relating to or affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

ARTICLE VIII — GENERAL PROVISIONS

Section 8.1 — Entire Agreement

This Agreement, together with the Merger Agreement, the Rollover Agreement (Executive), the Voting Agreement (Executive), and the other transaction documents referenced herein or executed in connection with the transactions contemplated by the Merger Agreement, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, and warranties, whether written or oral, between the Parties with respect to the subject matter hereof. No representations, warranties, covenants, promises, or inducements have been made by any Party hereto concerning this Agreement other than those expressly set forth or referenced herein.

Section 8.2 — Amendments and Waivers

No amendment, modification, supplement, or waiver of any provision of this Agreement shall be valid or effective unless the same shall be in writing and signed by both Parties (or, in the case of a waiver, by the Party against whom enforcement of such waiver is sought). No failure or delay by either Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided herein are cumulative and are not exclusive of any rights or remedies provided by law or in equity.

Section 8.3 — Severability

If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction or arbitral tribunal to be invalid, illegal, or unenforceable in any respect under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion thereof), and this Agreement shall be construed and reformed to the fullest extent possible so as to give effect to the original intent of the Parties. Without limiting the generality of the foregoing, the provisions of Article VI (Blue Pencil / Reformation) shall apply to any determination that any restrictive covenant contained in Article III is unenforceable as written.

Section 8.4 — Assignment

Executive may not assign, delegate, or otherwise transfer this Agreement or any of his rights, duties, or obligations hereunder to any Person without the prior written consent of Fund VI. Any purported assignment, delegation, or transfer by Executive in violation of this Section 8.4 shall be null and void and of no force or effect. Fund VI may assign its rights, interests, and obligations under this Agreement, in whole or in part, without the consent of Executive, to (a) any Affiliate of Fund VI, (b) the Surviving Corporation, (c) any successor in interest (whether by merger, consolidation, acquisition, or otherwise) to all or substantially all of the assets or business of the Company Group, the Surviving Corporation, or Fund VI, or (d) any purchaser of all or substantially all of the equity interests in the Surviving Corporation. No assignment by Fund VI pursuant to this Section 8.4 shall relieve Fund VI of its obligations hereunder unless the assignee expressly assumes such obligations.

Section 8.5 — Successors and Assigns

This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. Without limiting the generality of the foregoing, the restrictive covenants set forth in Article III shall be binding upon Executive's heirs, executors, administrators, and personal representatives to the extent applicable.

Section 8.6 — Notices

All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon delivery, if delivered personally (including by nationally recognized overnight courier service with signature required), (b) on the fifth (5th) business day after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, (c) on the next business day after deposit with a nationally recognized overnight courier service, or (d) upon transmission, if sent by email (provided that the sender receives confirmation of receipt, whether by return email, read receipt, or other written acknowledgment), in each case addressed as follows (or to such other address as a Party may designate by notice given in accordance with this Section 8.6):

If to Fund VI:

Solara Digital Infrastructure Fund VI LP 1200 Market Street, Suite 3400 Wilmington, DE 19801

Attention: Marcus Elliston, Managing Partner

Email: melliston@solaradigital.com

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022

Attention: Harrison Wexford

Email: hwexford@calderwoodharkness.com

If to Executive:

Jonathan Hargrove At the address set forth on the signature page hereto

or such other address as Executive may designate by written notice to Fund VI in accordance with this Section 8.6.

Section 8.7 — Governing Law

This Agreement and all claims, controversies, and disputes arising out of or relating to this Agreement (including any question regarding its existence, validity, interpretation, performance, breach, enforcement, or termination) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 8.8 — Jurisdiction and Venue

Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the United States District Court for the District of Delaware or, in the absence of federal subject-matter jurisdiction, the Superior Court of the State of Delaware and any appellate court therefrom), for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby, and each of the Parties irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim, or otherwise, in any such action, suit, or proceeding: (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve process in accordance with applicable law; (b) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, or otherwise); and (c) to the fullest extent permitted by applicable law, any claim that (i) the action, suit, or proceeding is brought in an inconvenient forum, (ii) the venue of the action, suit, or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by any of the above-named courts.

Section 8.9 — WAIVER OF JURY TRIAL

EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.9.

Section 8.10 — Counterparts

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail (in portable document format (.pdf) or any similar electronic imaging format) or by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 8.11 — Third-Party Beneficiaries

The Surviving Corporation, each member of the Company Group, and their respective Affiliates are express and intended third-party beneficiaries of the covenants and agreements of Executive set forth in Article III (Restrictive Covenants) and Article V (Remedies) and shall be entitled to enforce such covenants and agreements directly against Executive, as if they were parties to this Agreement, without the necessity of joining Fund VI as a party to any such enforcement action. Except as expressly set forth in this Section 8.11, this Agreement is not intended to, and shall not, confer upon any Person other than the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns any rights or remedies hereunder.

Section 8.12 — Relationship to Merger Agreement

This Agreement is being entered into in connection with, and as a material inducement to, the transactions contemplated by the Merger Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Merger Agreement (or any other transaction document) with respect to the subject matter hereof (including the restrictive covenants, confidentiality obligations, and non-disparagement obligations), the provisions of this Agreement shall govern and control. Notwithstanding the foregoing, the termination of the Merger Agreement prior to the Closing in accordance with its terms, without the Merger being consummated, shall automatically and without further action terminate this Agreement in its entirety, and neither Party shall have any rights, obligations, or liabilities hereunder, in accordance with Section 2.1.

Section 8.13 — Survival

The provisions of this Agreement that by their nature are intended to survive the expiration of the Restricted Period or any termination of Executive's employment with the Surviving Corporation or any of its Affiliates shall so survive, including, without limitation, Section 3.2 (Confidentiality), Section 3.3 (Non-Disparagement), Article IV (Acknowledgments and Reasonableness), Article V (Remedies), Article VI (Judicial Modification),

NON-COMPETITION AND NON-SOLICITATION AGREEMENT
Dated as of January 22, 2024
by and between
SOLARA DIGITAL INFRASTRUCTURE FUND VI LP
and
JONATHAN HARGROVE
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
This Non-Competition and Non-Solicitation Agreement (this "Agreement") is entered into as of January 22, 2024, by and between:
(1) Solara Digital Infrastructure Fund VI LP, a Delaware limited partnership ("Fund VI" or the "Buyer"), with its principal office at 1200 Market Street, Suite 3400, Wilmington, DE 19801, acting by its general partner, Solara Fund VI GP LLC, a Delaware limited liability company; and
(2) Jonathan Hargrove, an individual (the "Executive"), currently serving as Chief Executive Officer of Cloudium Technologies plc, a public limited company incorporated under the laws of England and Wales (Company No. 09734521) (the "Company"), with its United States headquarters located at 600 Townsend Street, Suite 800, San Francisco, CA 94103.
Fund VI and Executive are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS:
A. Fund VI, the Company, and Stratos Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Fund VI ("Merger Sub"), have entered into that certain Agreement and Plan of Merger, dated as of January 22, 2024 (as may be amended, supplemented, or otherwise modified from time to time, the "Merger Agreement"), pursuant to which, among other things, Merger Sub will merge with and into the Company in a reverse triangular merger, with the Company surviving as a wholly owned subsidiary of Fund VI (the "Merger"), for aggregate consideration of Six Billion Eight Hundred Million Dollars ($6,800,000,000), representing Thirty-Six Dollars and Ninety-Two Cents ($36.92) per share of common stock of the Company;
B. Executive currently serves as the Chief Executive Officer of the Company and beneficially holds 7,736,400 shares of common stock of the Company, representing approximately 4.2% of the 184,200,000 shares of common stock outstanding as of the date hereof, and Executive is a party to that certain Rollover Agreement, dated as of January 22, 2024 (the "Rollover Agreement"), by and between Fund VI and Executive, pursuant to which Executive has agreed to roll over fifty percent (50%) of his equity holdings (representing equity value of approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544), based on the per-share merger consideration) into equity interests in the Surviving Corporation, with the balance of Executive's shares being cashed out at the per-share merger consideration of $36.92;
C. Executive possesses intimate knowledge of the Company's business, operations, trade secrets, customer relationships, proprietary technology, competitive strategies, and goodwill, and throughout his tenure as Chief Executive Officer has had extensive and privileged access to confidential and proprietary information developed, compiled, and maintained by the Company and its subsidiaries;
D. The Company is a leading provider of cloud-native enterprise resource planning ("ERP"), customer-relationship management ("CRM"), and business-intelligence ("BI") software-as-a-service ("SaaS") solutions serving mid-market and enterprise customers on a global basis, with approximately 6,800 employees across the United States, the United Kingdom, India, and Germany, and with annual recurring revenue ("ARR") of One Billion Seven Hundred Forty Million Dollars ($1,740,000,000) as of December 31, 2023;
E. Executive's execution, delivery, and performance of this Agreement is a condition to the Buyer's willingness to consummate the Merger and constitutes a material inducement for the Buyer to enter into the Merger Agreement and to make the substantial equity investment contemplated thereby, and but for Executive's agreement to the covenants contained herein, the Buyer would not have entered into the Merger Agreement or agreed to consummate the Merger on the terms set forth therein;
F. Executive acknowledges that he will receive substantial direct and indirect benefits from the consummation of the Merger, including (i) cash consideration for the cashed-out portion of his shares at the per-share merger consideration of $36.92, (ii) ongoing equity participation in the Surviving Corporation through the Rollover Agreement, (iii) continued employment with the Surviving Corporation following the Closing, and (iv) the enhancement of the value of his rolled-over equity interests through the resources and strategic direction of Fund VI, all of which constitute adequate and independent consideration for the covenants and obligations of Executive set forth herein, separate and apart from any other consideration; and
G. This Agreement is being executed and delivered concurrently with the execution and delivery of the Merger Agreement, the Rollover Agreement (Executive), the Voting and Support Agreement between Fund VI and Executive (the "Voting Agreement"), and certain other related transaction documents, and the obligations of the Parties hereunder are an integral part of, and are being entered into in connection with, the transactions contemplated by the Merger Agreement and such related documents.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the consummation of the Merger, the consideration to be received by Executive in connection therewith (including the cash merger consideration and the rollover equity interests), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Merger Agreement.
"Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Without limiting the generality of the foregoing, with respect to Fund VI, the term "Affiliate" shall include Solara Digital Infrastructure LP, Solara Digital GP LLC, Solara Fund VI GP LLC, Solara Digital Co-Invest VI-A LP, and any portfolio company of Fund VI or any of the foregoing entities.
"Business" means the design, development, marketing, licensing, sale, support, hosting, and maintenance of cloud-native enterprise resource planning (ERP), customer-relationship management (CRM), business intelligence (BI), and related SaaS software solutions for mid-market and enterprise customers, including all lines of business and product offerings conducted by the Company and its direct and indirect subsidiaries (including, without limitation, Cloudium Technologies UK Ltd., Cloudium Technologies India Pvt. Ltd., and Cloudium Solutions GmbH) as of the date hereof and as of the Closing Date, including the development, marketing, and provision of any products, services, or solutions that are substantially similar to, or competitive with, any products, services, or solutions offered, under development, or planned by the Company Group as of the date hereof or as of the Closing Date.
"Closing" means the closing of the Merger as defined in, and subject to the terms and conditions of, the Merger Agreement.
"Closing Date" means the date on which the Closing occurs, which is anticipated to occur on or about the Scheduled Outside Date of June 30, 2024, as set forth in the Merger Agreement. For the avoidance of doubt, the actual Closing Date may differ from such anticipated date, and all references to the Closing Date herein shall refer to the actual date on which the Closing occurs.
"Company Group" means the Company and its direct and indirect subsidiaries, including (a) Cloudium Technologies UK Ltd., a private limited company incorporated under the laws of England and Wales (Company No. 11287456), (b) Cloudium Technologies India Pvt. Ltd., a private limited company organized under the laws of India, with its registered office in Bangalore, Karnataka, India, and (c) Cloudium Solutions GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of the Federal Republic of Germany, with its registered office in Berlin, Germany, and, following the Closing, the Surviving Corporation and its direct and indirect subsidiaries.
"Competing Enterprise" means any Person (other than the Company, the Surviving Corporation, or any of their respective Affiliates) that is engaged in, or that has taken material steps to prepare to engage in, the Business or any material portion thereof, anywhere in the Restricted Territory. For the avoidance of doubt, a Competing Enterprise shall include, without limitation, any Person that directly or indirectly develops, markets, sells, licenses, hosts, or supports cloud-native ERP, CRM, or BI SaaS solutions for mid-market or enterprise customers in competition with the Business, regardless of whether such Person also engages in other lines of business that do not compete with the Business.
"Confidential Information" means all information, data, knowledge, and materials, in whatever form or medium (whether written, oral, electronic, visual, or otherwise), that relate to the Business, the Company Group, or the Surviving Corporation and that are not generally known to or readily ascertainable by the public, including, without limitation: (a) trade secrets and proprietary technology, including source code, object code, algorithms, data architectures, software designs, technical specifications, and development methodologies; (b) customer lists, customer data, customer purchasing histories, and customer preferences; (c) pricing strategies, discount structures, and competitive pricing analyses; (d) product roadmaps, development plans, and product pipeline information; (e) financial information, including revenue data, ARR and other recurring revenue metrics, cost structures, margin analyses, budgets, forecasts, and projections; (f) strategic plans, business plans, marketing plans, and expansion strategies; (g) vendor and supplier terms, agreements, and pricing; (h) employee compensation data, benefit structures, retention strategies, and organizational plans; (i) information regarding pending or threatened litigation, regulatory proceedings, or governmental investigations; (j) research and development activities, inventions, and patent applications; and (k) all other non-public information relating to the Business, the Company Group, or the Surviving Corporation. Notwithstanding the foregoing, "Confidential Information" shall not include information that (x) is or becomes publicly available other than as a result of a direct or indirect disclosure by Executive or any Person acting on Executive's behalf in violation of this Agreement or any other confidentiality obligation, or (y) is independently developed by Executive after the termination of his employment with the Surviving Corporation and its Affiliates without reference to or use of any Confidential Information.
"Effective Date" means the Closing Date.
"Key Customer" means any customer of the Company Group that generated annual recurring revenue of Five Million Dollars ($5,000,000) or more in the twelve (12)-month period ending on the Closing Date, including, without limitation, Aegis Federal Solutions Inc. (which generated approximately Eighty-Four Million Dollars ($84,000,000) in ARR during such period), and any customer identified as a "Key Customer" on the books and records of the Company Group as of the Closing Date.
"Key Employee" means any individual who, as of the date hereof or at any time during the Restricted Period, (a) holds a title of Vice President or above within the Company Group or the Surviving Corporation or any of their respective Affiliates, (b) is a member of the Company's executive leadership team (or any successor body within the Surviving Corporation), or (c) is identified on Schedule A attached hereto and incorporated herein by reference. For purposes of the non-solicitation covenants set forth in Section 3.1(b), a "Key Employee" shall also include any individual who was a Key Employee at any time during the six (6)-month period preceding the applicable solicitation, hiring, or engagement.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of January 22, 2024, among the Company, Stratos Merger Sub Inc., and Fund VI, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.
"Person" means any individual, corporation, limited liability company, partnership, limited partnership, joint venture, association, trust, unincorporated organization, governmental authority or agency, or any other entity or body of whatever nature, including any group (as such term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).
"Restricted Period" means (a) with respect to the non-competition covenant set forth in Section 3.1(a), the period commencing on the Closing Date and ending on the date that is thirty-six (36) months following the Closing Date (such period, the "Non-Competition Period"); and (b) with respect to the non-solicitation covenants set forth in Section 3.1(b) and Section 3.1(c) and the non-interference covenant set forth in Section 3.1(d), the greater of (i) the Non-Competition Period and (ii) the period ending twenty-four (24) months following the date of termination of Executive's employment with the Surviving Corporation or any of its Affiliates, if such termination occurs during the Non-Competition Period. For the avoidance of doubt, in no event shall the Restricted Period with respect to any covenant be shorter than the Non-Competition Period.
"Restricted Territory" means worldwide, including, without limitation, the United States, the United Kingdom, India, Germany, and all other countries and jurisdictions in which the Company Group operates, has customers, or generates revenue as of the date hereof or as of the Closing Date. The Parties acknowledge and agree that the worldwide scope of the Restricted Territory is appropriate and reasonable given the global nature of the Company Group's operations, customer base, and competitive landscape.
"Rollover Agreement" means the Rollover Agreement, dated as of January 22, 2024, by and between Fund VI and Executive, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.
"Surviving Corporation" means the Company as the surviving corporation following the consummation of the Merger, together with its successors and assigns.
Section 1.2 — Interpretation
Unless the context otherwise requires, the following rules of construction shall apply to this Agreement:
(a) References to this Agreement, the Merger Agreement, the Rollover Agreement, and any other agreement or document shall be to such agreement or document as amended, supplemented, restated, or otherwise modified from time to time in accordance with its terms.
(b) The headings and captions contained in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of this Agreement.
(c) The word "including" (and all grammatical variations thereof) shall mean "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(d) Unless the context otherwise requires, words in the singular shall include the plural and vice versa, and words in one gender shall include all genders.
(e) References to "Sections," "Articles," and "Schedules" are to sections, articles, and schedules of or to this Agreement, unless otherwise specified.
(f) The words "herein," "hereof," "hereunder," "hereby," and "hereto" refer to this Agreement as a whole and not to any particular provision of this Agreement.
(g) The Parties have participated jointly in the negotiation and drafting of this Agreement, and in the event of any ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
(h) References to "days" shall mean calendar days unless otherwise specified; provided that if the last day of any period falls on a Saturday, Sunday, or legal holiday in the State of Delaware, such period shall be extended to the next business day.
(i) All dollar amounts referenced herein are in United States Dollars unless otherwise specified.
ARTICLE II — EFFECTIVENESS AND TERM
Section 2.1 — Effective Date
This Agreement shall become effective as of the Closing Date. Prior to the Closing Date, the covenants and obligations of Executive under Article III of this Agreement shall not be operative, and Executive shall have no obligations under such Article III. In the event that the Merger Agreement is terminated prior to the Closing in accordance with its terms without the Merger being consummated, this Agreement shall automatically and without further action by either Party be null and void and of no force or effect, and neither Party shall have any rights, obligations, or liabilities hereunder. For the avoidance of doubt, the execution and delivery of this Agreement prior to the Closing Date shall not in and of itself create any binding obligation on Executive with respect to the restrictive covenants set forth in Article III, except that the obligations of Executive under Section 3.2 (Confidentiality) with respect to Confidential Information received by Executive on or after the date hereof shall be binding upon Executive from and after the date hereof.
Section 2.2 — Term
The covenants and obligations of Executive under Article III (other than Section 3.2) shall remain in full force and effect for the full duration of the Restricted Period applicable to each such covenant, as set forth in the definition of "Restricted Period" in Section 1.1 and as may be extended pursuant to Section 5.2. The confidentiality obligations of Executive under Section 3.2 shall survive the expiration of the Restricted Period and shall continue indefinitely following the date hereof; provided, however, that with respect to any item of Confidential Information that constitutes a "trade secret" under the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., or any applicable state trade secret law, Executive's obligations with respect to such trade secret shall continue for so long as such information remains a trade secret under applicable law. The non-disparagement obligations set forth in Section 3.3 shall survive the expiration of the Restricted Period and shall continue indefinitely. The provisions of Article IV (Acknowledgments and Reasonableness), Article V (Remedies), Article VI (Judicial Modification), and Article VIII (General Provisions) shall survive the expiration of the Restricted Period and any termination of Executive's employment with the Surviving Corporation or its Affiliates.
ARTICLE III — RESTRICTIVE COVENANTS
Section 3.1 — Non-Competition and Non-Solicitation Covenants
Section 3.1(a) — Non-Competition.  During the Restricted Period (being thirty-six (36) months from the Closing Date, as may be extended pursuant to Section 5.2), Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:
(i) engage in, own, manage, operate, control, finance, or participate in the ownership, management, operation, control, or financing of, any Competing Enterprise in the Restricted Territory, whether as a proprietor, partner, member, stockholder, investor, lender, guarantor, joint venturer, or in any other capacity;
(ii) serve as an officer, director, employee, partner, member, manager, consultant, agent, advisor, or independent contractor of or to any Competing Enterprise, or otherwise provide services (whether compensated or uncompensated) to any Competing Enterprise that relate to, or are substantially similar to, the services provided by Executive to the Company or the Business;
(iii) acquire or hold (other than passive investments of less than two percent (2%) of the outstanding equity securities of any class of securities of any publicly traded company, provided that Executive does not otherwise participate in the management of, or exercise any influence over, such company) any equity, debt, or other financial interest in any Competing Enterprise; or
(iv) assist, encourage, facilitate, or advise any Person in connection with any of the activities described in clauses (i) through (iii) above, including by providing strategic advice, introductions, referrals, financing, or other material support to any Competing Enterprise.
For purposes of clarification, the restrictions in this Section 3.1(a) shall not prohibit Executive from (A) engaging in charitable, civic, educational, or philanthropic activities, provided that such activities do not interfere with Executive's obligations hereunder and are not conducted on behalf of or for the benefit of a Competing Enterprise; (B) serving on the board of directors or advisory board of any Person that is not a Competing Enterprise, provided that such service does not interfere with Executive's obligations hereunder; or (C) managing Executive's personal investments, provided that such investments comply with the passive investment exception set forth in clause (iii) above.
Section 3.1(b) — Non-Solicitation of Employees.  During the Restricted Period (being thirty-six (36) months from the Closing Date, subject to extension as provided in the definition of "Restricted Period" in Section 1.1 and in Section 5.2), Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:
(i) solicit, recruit, induce, encourage, or attempt to solicit, recruit, induce, or encourage, any Key Employee (or any individual who was a Key Employee within the six (6)-month period preceding such solicitation, recruitment, inducement, or encouragement) to terminate, reduce, or alter his or her employment, engagement, or other business relationship with the Company Group, the Surviving Corporation, or any of their respective Affiliates; or
(ii) hire or engage (as an employee, independent contractor, consultant, or in any other capacity, whether on a full-time, part-time, temporary, or permanent basis) any Key Employee, or any individual who was a Key Employee within the six (6)-month period preceding such hiring or engagement, for the purpose of having such individual perform services for Executive or any Person other than the Company Group, the Surviving Corporation, or any of their respective Affiliates.
Notwithstanding the foregoing, the restrictions set forth in this Section 3.1(b) shall not be deemed to be violated by (A) general solicitations of employment not specifically directed at employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates, including published job advertisements in newspapers, trade journals, or online job boards of general circulation, career fairs, or solicitations by recruitment firms or search firms that are not specifically directed by Executive to target employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates; provided, however, that this exception shall not apply if Executive directly or indirectly directed, encouraged, or instructed any such recruitment firm, search firm, or other third party to target or contact any Key Employee or any employees of the Company Group, the Surviving Corporation, or any of their respective Affiliates; or (B) providing a personal reference for a Key Employee in response to an unsolicited request, provided that Executive does not in connection therewith solicit, recruit, induce, or encourage such Key Employee to terminate or alter his or her employment.
Section 3.1(c) — Non-Solicitation of Customers.  During the Restricted Period, Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person:
(i) solicit, divert, or take away (or attempt to solicit, divert, or take away) the business of any Key Customer, or any customer of the Company Group with whom Executive had a material business relationship or about whom Executive received Confidential Information during the twenty-four (24)-month period preceding the Closing Date, for the purpose of providing, offering, or marketing any products, services, or solutions that compete with, or are substantially similar to, the products, services, or solutions offered by the Business; or
(ii) encourage, induce, or attempt to encourage or induce any Key Customer or any customer of the Company Group to reduce, terminate, cancel, not renew, or materially modify in a manner adverse to the Company Group or the Surviving Corporation, its business relationship, contractual arrangements, or purchasing commitments with the Company Group, the Surviving Corporation, or any of their respective Affiliates.
The Parties specifically acknowledge and agree that the Key Customers include, without limitation, Aegis Federal Solutions Inc. (which generated approximately Eighty-Four Million Dollars ($84,000,000) in ARR during the twelve (12)-month period ending December 31, 2023), and Executive acknowledges that he has had an extensive material business relationship with, and has received substantial Confidential Information regarding, Aegis Federal Solutions Inc. and other Key Customers during his tenure as Chief Executive Officer.
Section 3.1(d) — Non-Interference.  During the Restricted Period, Executive shall not, directly or indirectly, whether for his own account or on behalf of, or in conjunction with, or for the benefit of, any other Person, interfere with, disrupt, or attempt to interfere with or disrupt, any existing or prospective business relationship between the Company Group (or the Surviving Corporation or any of their respective Affiliates) and any vendor, supplier, distributor, technology partner, strategic alliance partner, reseller, systems integrator, or other counterparty, including, without limitation, Helix Data Systems GmbH. Without limiting the generality of the foregoing, Executive shall not, during the Restricted Period, solicit, induce, or encourage any such vendor, supplier, distributor, technology partner, strategic alliance partner, reseller, systems integrator, or other counterparty to terminate, reduce, or materially modify in a manner adverse to the Company Group or the Surviving Corporation its business relationship with the Company Group, the Surviving Corporation, or any of their respective Affiliates.
Section 3.2 — Confidentiality
(a) Non-Disclosure and Non-Use. Executive shall not, at any time after the date hereof (whether during or after the Restricted Period, and whether during or after Executive's employment with the Surviving Corporation or any of its Affiliates), directly or indirectly, disclose, furnish, publish, disseminate, make available, or use for his own benefit or the benefit of any third party, any Confidential Information, except:
(i) in the performance of Executive's duties for and on behalf of the Surviving Corporation or any of its Affiliates, and then only to the extent reasonably necessary for the performance of such duties and in accordance with any applicable policies and procedures of the Surviving Corporation;
(ii) as required by applicable law, rule, regulation, or order of any court of competent jurisdiction, governmental authority, or regulatory body, or by any legal or arbitral proceeding (provided that Executive shall, to the extent permitted by applicable law, (A) provide Fund VI and the Surviving Corporation with prompt written notice of such requirement prior to any such disclosure (and in any event no later than five (5) business days after receipt of such requirement or, if compliance with such requirement is required in fewer than five (5) business days, as promptly as reasonably practicable), (B) cooperate in good faith with Fund VI and the Surviving Corporation in any efforts to obtain a protective order, confidential treatment, or other appropriate remedy to prevent or limit such disclosure, and (C) disclose only that portion of the Confidential Information that Executive is legally required to disclose based on the advice of Executive's counsel); or
(iii) as otherwise authorized in advance in writing by Fund VI or the Surviving Corporation.
(b) Supplemental Nature of Obligations. The obligations of Executive under this Section 3.2 are in addition to, and not in limitation or substitution of, any confidentiality, non-disclosure, or intellectual property obligations that Executive may have under any other agreement, including, without limitation, any employment agreement, offer letter, proprietary information and inventions assignment agreement, the Rollover Agreement, the Merger Agreement, or any other agreement between Executive and the Company, the Surviving Corporation, Fund VI, or any of their respective Affiliates. In the event of any conflict between the confidentiality provisions of this Agreement and those of any such other agreement, the more restrictive provision shall control.
(c) Return and Destruction of Confidential Information. Upon the termination of Executive's employment with the Surviving Corporation or any of its Affiliates for any reason (or at any earlier time upon the written request of Fund VI or the Surviving Corporation), Executive shall promptly return to the Surviving Corporation all documents, files, records, materials, equipment, and other tangible and intangible property (including all copies, notes, summaries, excerpts, and derivative works thereof, whether in physical or electronic form) in Executive's possession, custody, or control that contain, reflect, or are derived from Confidential Information. Executive shall not retain any copies, reproductions, or summaries of any Confidential Information following such return, and shall, if requested by Fund VI or the Surviving Corporation, certify in writing Executive's compliance with this Section 3.2(c). Notwithstanding the foregoing, Executive may retain (i) personal copies of documents relating solely to Executive's personal compensation, benefits, or tax obligations, and (ii) Executive's personal contacts and personal rolodex information, subject in each case to Executive's continuing confidentiality obligations hereunder.
(d) Defend Trade Secrets Act Notice. Pursuant to the Defend Trade Secrets Act of 2016, 18 U.S.C. § 1833(b), Executive is hereby notified that an individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law, or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the employer's trade secrets to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
Section 3.3 — Non-Disparagement
(a) Executive's Obligations. Executive shall not, at any time during or after the Restricted Period, directly or indirectly, make, publish, or communicate (whether orally, in writing, electronically, or through any social media platform, press release, interview, blog, or other medium of communication) any statement that disparages, defames, libels, slanders, or casts in a negative light Fund VI, the Surviving Corporation, the Company Group, Solara Digital Infrastructure LP, or any of their respective Affiliates, officers, directors, partners, members, managers, employees, agents, products, services, business practices, financial condition, or reputation. The foregoing shall not prohibit (i) truthful testimony compelled by valid legal process or otherwise required by applicable law, rule, or regulation, (ii) statements made in the course of any litigation, arbitration, mediation, or other dispute resolution proceeding between the Parties or involving Executive, or (iii) good-faith communications made privately to Executive's attorney, financial advisor, or accountant in connection with the receipt of professional advice, provided that Executive instructs such advisor to maintain the confidentiality of such communications.
(b) Mutual Non-Disparagement. Fund VI agrees that, following the Closing Date, it shall instruct its senior personnel (including the partners and managing directors of Solara Digital Infrastructure LP and Solara Fund VI GP LLC) and the officers and directors of the Surviving Corporation not to make, publish, or communicate any statement that disparages, defames, libels, slanders, or casts in a negative light Executive or Executive's personal or professional reputation. This undertaking shall not restrict Fund VI, the Surviving Corporation, or their respective personnel from making truthful statements required by applicable law, rule, or regulation, compelled by valid legal process, or made in connection with any litigation, arbitration, or dispute resolution proceeding.
ARTICLE IV — ACKNOWLEDGMENTS AND REASONABLENESS
Section 4.1 — Acknowledgment of Reasonableness
Executive acknowledges, represents, and agrees that:
(a) The restrictive covenants set forth in Article III are reasonable and necessary in scope, duration, and geographic extent and are designed to protect the legitimate business interests of Fund VI, the Surviving Corporation, and the Company Group, including, without limitation, the protection of goodwill acquired and paid for in connection with the Merger, the protection of Confidential Information and trade secrets, the preservation of valuable and long-standing customer relationships, and the maintenance of a stable, skilled, and experienced workforce. Executive further acknowledges that the Business is conducted on a global basis, that the Company Group's customers, employees, vendors, and partners are located throughout the world, and that a geographic restriction narrower than worldwide would be insufficient to protect such legitimate business interests.
(b) Executive's position as Chief Executive Officer of the Company, his extensive tenure in such role, and his decision to roll over approximately One Hundred Forty-Two Million Eight Hundred Fourteen Thousand Five Hundred Forty-Four Dollars ($142,814,544) in equity into equity interests in the Surviving Corporation pursuant to the Rollover Agreement, provide Executive with unique insight into, access to, and ongoing economic interest in the Business and the operations, strategies, customer relationships, technology, and goodwill of the Company Group and the Surviving Corporation, and such unique position would enable Executive, in the absence of the covenants herein, to cause substantial competitive harm to Fund VI, the Surviving Corporation, and the Company Group.
(c) The consideration provided to Executive in connection with the Merger, including (i) the per-share cash consideration of Thirty-Six Dollars and Ninety-Two Cents ($36.92) for Executive's cashed-out shares, (ii) the rollover equity interests in the Surviving Corporation, (iii) Executive's continued employment with the Surviving Corporation, and (iv) the other benefits to be received by Executive in connection with the transactions contemplated by the Merger Agreement, constitutes adequate, sufficient, and independent consideration for the covenants and obligations of Executive set forth in this Agreement.
(d) Enforcement of the restrictive covenants set forth in Article III will not impose an undue hardship on Executive given Executive's skills, education, professional experience, and the breadth of opportunities available to Executive in fields and activities that do not compete with the Business. Executive acknowledges that he possesses substantial financial resources and professional qualifications that will enable him to earn a livelihood during and after the Restricted Period without engaging in activities that violate the covenants herein.
(e) The worldwide scope of the Restricted Territory is appropriate and reasonable in light of the fact that the Company Group operates across, and serves customers in, the United States, the United Kingdom, India, Germany, and numerous other jurisdictions globally, and the Business is conducted through digital and cloud-based platforms that are accessible and competitive on a global basis. Executive further acknowledges that the thirty-six (36)-month duration of the Non-Competition Period is reasonable and appropriate in the context of a merger transaction of this magnitude and the substantial consideration received by Executive.
Section 4.2 — Independent Covenants
Each of the restrictive covenants set forth in Article III constitutes an independent covenant and agreement by Executive that is separately and independently enforceable from each other restrictive covenant. The existence of any claim or cause of action of Executive against Fund VI, the Surviving Corporation, or any of their respective Affiliates, whether arising under this Agreement or otherwise, shall not constitute a defense to the enforcement of any restrictive covenant set forth in Article III and shall not entitle Executive to an injunction, restraining order, or other equitable relief preventing the enforcement of any such covenant.
ARTICLE V — REMEDIES
Section 5.1 — Equitable Relief
Executive acknowledges and agrees that a breach or threatened breach by Executive of any of the restrictive covenants set forth in Article III would cause irreparable harm to Fund VI, the Surviving Corporation, and the Company Group for which monetary damages alone would be an insufficient and inadequate remedy. Accordingly, Executive agrees that Fund VI and the Surviving Corporation (and, as applicable, any other third-party beneficiary identified in Section 8.11) shall be entitled to seek and obtain temporary, preliminary, and permanent injunctive relief and orders of specific performance, in addition to any other remedies available at law or in equity, in any court of competent jurisdiction, to prevent or restrain any such breach or threatened breach, without the necessity of (a) proving actual damages or the inadequacy of monetary damages, (b) posting any bond or other security, or (c) establishing the absence of an adequate remedy at law. The Parties acknowledge that any requirement of a bond or other security in connection with such injunctive relief is hereby waived to the fullest extent permitted by applicable law. The right to obtain equitable relief under this Section 5.1 shall be in addition to, and not in lieu of, any right to recover monetary damages (including consequential and incidental damages) or to exercise any other remedy available at law or in equity, and the exercise of any such right or remedy shall not preclude the exercise of any other right or remedy.
Section 5.2 — Extension of Restricted Period
If Executive breaches any of the restrictive covenants set forth in Article III, the Restricted Period applicable to such covenant (and, at the election of Fund VI, the Restricted Period applicable to all covenants in Article III) shall be tolled during the period of such breach and shall be extended by a period of time equal to the duration of such breach, so that Fund VI, the Surviving Corporation, and the Company Group receive the full benefit of the agreed-upon restricted period. Executive acknowledges that this tolling and extension provision is reasonable and necessary to ensure that Executive does not benefit from his own breach of this Agreement.
Section 5.3 — Forfeiture and Clawback
In the event of a material breach by Executive of any of the covenants set forth in Article III (as determined by Fund VI in good faith or as determined by a court of competent jurisdiction), Fund VI shall be entitled, in addition to all other remedies available hereunder or at law or in equity, to:
(a) cause the immediate forfeiture and cancellation of any unvested equity interests held by Executive in the Surviving Corporation that were issued to Executive pursuant to the Rollover Agreement or any other equity incentive plan, grant, or arrangement, without any payment or consideration to Executive in respect of such forfeited equity interests; and
(b) recover and claw back from Executive any amounts previously paid or payable to Executive under any applicable incentive compensation, bonus, severance, or retention arrangements (whether pursuant to the Rollover Agreement, any employment agreement, or otherwise), to the extent such recovery is not prohibited by applicable law.
Executive acknowledges that the forfeiture and clawback remedies set forth in this Section 5.3 are reasonable in light of the substantial consideration received by Executive in connection with the Merger and the importance of the restrictive covenants to Fund VI's willingness to consummate the Merger. Nothing in this Section 5.3 shall be construed to limit or reduce any other rights or remedies of Fund VI, the Surviving Corporation, or any other Person under this Agreement, any other agreement, or applicable law.
Section 5.4 — Attorneys' Fees
In any action, suit, or proceeding brought to enforce any provision of this Agreement, to obtain a declaration of rights under this Agreement, or in connection with any alleged breach of this Agreement, the prevailing party (as determined by the applicable court or tribunal) shall be entitled to recover from the non-prevailing party its reasonable attorneys' fees, costs, and expenses incurred in connection with such action, suit, or proceeding, including any fees and costs incurred in connection with any appeal, and including fees of expert witnesses, court costs, and other out-of-pocket litigation expenses.
ARTICLE VI — JUDICIAL MODIFICATION
Section 6.1 — Blue Pencil / Reformation
If any court of competent jurisdiction shall at any time determine that any restrictive covenant contained in Article III of this Agreement is unenforceable as written because it is too broad in scope, too long in duration, or too expansive in geographic extent, or is otherwise unreasonable or invalid in any respect, the Parties expressly authorize and request such court to reform, modify, and construe such provision to the maximum extent enforceable under applicable law, and to enforce such provision as so reformed, modified, and construed. The Parties intend that the restrictive covenants be enforced to the fullest extent permitted by applicable law, and the Parties hereby expressly authorize judicial modification ("blue penciling") to preserve the enforceability and intent of such covenants to the greatest extent possible. In the event that any provision of Article III is held to be wholly unenforceable despite such reformation, such holding shall not affect the enforceability of any other provision of Article III or any other provision of this Agreement, each of which shall be enforced to the fullest extent permitted by applicable law. The Parties acknowledge that the restrictive covenants set forth in Article III were negotiated at arm's length, with the benefit of experienced legal counsel, and in the context of a significant and highly negotiated transaction, and that the Parties' mutual intent is for such covenants to be enforced as written, subject only to judicial reformation to the extent strictly required by applicable law.
ARTICLE VII — REPRESENTATIONS AND WARRANTIES
Section 7.1 — Executive's Representations
Executive represents and warrants to Fund VI as follows:
(a) Capacity. Executive has the legal capacity, competence, and authority to execute, deliver, and perform this Agreement. No approval, consent, or authorization of, or filing, registration, or qualification with, any governmental authority or other third party is required in connection with Executive's execution, delivery, and performance of this Agreement.
(b) No Conflicts. The execution, delivery, and performance by Executive of this Agreement do not and will not (i) violate, conflict with, or result in a breach of, any law, rule, regulation, order, judgment, or decree applicable to Executive, or (ii) violate, conflict with, result in a breach of, constitute a default under, or require any consent or approval under, any contract, agreement, arrangement, commitment, or other obligation to which Executive is a party or by which Executive or any of Executive's assets or properties may be bound or affected.
(c) Opportunity to Review. Executive has had a full and adequate opportunity to review and consider this Agreement and to consult with legal counsel of his own choosing regarding the terms, conditions, and legal effect of this Agreement. Executive has, in fact, consulted with and received the advice of his own legal counsel prior to executing this Agreement. Executive fully understands the terms and provisions of this Agreement, including the scope, duration, and effect of the restrictive covenants contained in Article III.
(d) Voluntary Execution. Executive is entering into this Agreement voluntarily, of his own free will, and with full knowledge and understanding of its terms, conditions, and legal consequences. Executive is not entering into this Agreement under duress, coercion, or undue influence of any kind.
(e) Adequate Consideration. Executive acknowledges and agrees that the consideration to be received by Executive in connection with the Merger and the related transactions, as described in the Recitals and Section 4.1(c), constitutes adequate, valuable, and legally sufficient consideration for Executive's covenants and obligations under this Agreement.
Section 7.2 — Fund VI's Representations
Fund VI represents and warrants to Executive as follows:
(a) Organization and Standing. Fund VI is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Solara Fund VI GP LLC, a Delaware limited liability company, is the sole general partner of Fund VI and is duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(b) Power and Authority. Fund VI has the requisite limited partnership power and authority to execute, deliver, and perform this Agreement. The execution, delivery, and performance of this Agreement by Fund VI have been duly and validly authorized by all necessary action on the part of Fund VI and its general partner, Solara Fund VI GP LLC, including all necessary approvals and authorizations of the partners and members, as applicable. No other proceedings on the part of Fund VI or Solara Fund VI GP LLC are necessary to authorize the execution, delivery, and performance of this Agreement.
(c) Valid and Binding Obligation. This Agreement has been duly and validly executed and delivered by Fund VI and constitutes a legal, valid, and binding obligation of Fund VI, enforceable against Fund VI in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, or similar laws relating to or affecting the enforcement of creditors' rights generally, and (ii) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
ARTICLE VIII — GENERAL PROVISIONS
Section 8.1 — Entire Agreement
This Agreement, together with the Merger Agreement, the Rollover Agreement (Executive), the Voting Agreement (Executive), and the other transaction documents referenced herein or executed in connection with the transactions contemplated by the Merger Agreement, constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, representations, and warranties, whether written or oral, between the Parties with respect to the subject matter hereof. No representations, warranties, covenants, promises, or inducements have been made by any Party hereto concerning this Agreement other than those expressly set forth or referenced herein.
Section 8.2 — Amendments and Waivers
No amendment, modification, supplement, or waiver of any provision of this Agreement shall be valid or effective unless the same shall be in writing and signed by both Parties (or, in the case of a waiver, by the Party against whom enforcement of such waiver is sought). No failure or delay by either Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided herein are cumulative and are not exclusive of any rights or remedies provided by law or in equity.
Section 8.3 — Severability
If any provision of this Agreement (or any portion thereof) is held by a court of competent jurisdiction or arbitral tribunal to be invalid, illegal, or unenforceable in any respect under applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement (or the remaining portion thereof), and this Agreement shall be construed and reformed to the fullest extent possible so as to give effect to the original intent of the Parties. Without limiting the generality of the foregoing, the provisions of Article VI (Blue Pencil / Reformation) shall apply to any determination that any restrictive covenant contained in Article III is unenforceable as written.
Section 8.4 — Assignment
Executive may not assign, delegate, or otherwise transfer this Agreement or any of his rights, duties, or obligations hereunder to any Person without the prior written consent of Fund VI. Any purported assignment, delegation, or transfer by Executive in violation of this Section 8.4 shall be null and void and of no force or effect. Fund VI may assign its rights, interests, and obligations under this Agreement, in whole or in part, without the consent of Executive, to (a) any Affiliate of Fund VI, (b) the Surviving Corporation, (c) any successor in interest (whether by merger, consolidation, acquisition, or otherwise) to all or substantially all of the assets or business of the Company Group, the Surviving Corporation, or Fund VI, or (d) any purchaser of all or substantially all of the equity interests in the Surviving Corporation. No assignment by Fund VI pursuant to this Section 8.4 shall relieve Fund VI of its obligations hereunder unless the assignee expressly assumes such obligations.
Section 8.5 — Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns. Without limiting the generality of the foregoing, the restrictive covenants set forth in Article III shall be binding upon Executive's heirs, executors, administrators, and personal representatives to the extent applicable.
Section 8.6 — Notices
All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) upon delivery, if delivered personally (including by nationally recognized overnight courier service with signature required), (b) on the fifth (5th) business day after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, (c) on the next business day after deposit with a nationally recognized overnight courier service, or (d) upon transmission, if sent by email (provided that the sender receives confirmation of receipt, whether by return email, read receipt, or other written acknowledgment), in each case addressed as follows (or to such other address as a Party may designate by notice given in accordance with this Section 8.6):
If to Fund VI:
Solara Digital Infrastructure Fund VI LP 1200 Market Street, Suite 3400 Wilmington, DE 19801
Attention: Marcus Elliston, Managing Partner
Email: melliston@solaradigital.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue New York, NY 10022
Attention: Harrison Wexford
Email: hwexford@calderwoodharkness.com
If to Executive:
Jonathan Hargrove At the address set forth on the signature page hereto
or such other address as Executive may designate by written notice to Fund VI in accordance with this Section 8.6.
Section 8.7 — Governing Law
This Agreement and all claims, controversies, and disputes arising out of or relating to this Agreement (including any question regarding its existence, validity, interpretation, performance, breach, enforcement, or termination) shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 8.8 — Jurisdiction and Venue
Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, and any state appellate court therefrom within the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the United States District Court for the District of Delaware or, in the absence of federal subject-matter jurisdiction, the Superior Court of the State of Delaware and any appellate court therefrom), for the purposes of any action, suit, or proceeding arising out of or relating to this Agreement or any of the transactions contemplated hereby, and each of the Parties irrevocably and unconditionally waives, and agrees not to assert, by way of motion, as a defense, counterclaim, or otherwise, in any such action, suit, or proceeding: (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to serve process in accordance with applicable law; (b) any claim that it or its property is exempt or immune from the jurisdiction of any such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution, or otherwise); and (c) to the fullest extent permitted by applicable law, any claim that (i) the action, suit, or proceeding is brought in an inconvenient forum, (ii) the venue of the action, suit, or proceeding is improper, or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by any of the above-named courts.
Section 8.9 — WAIVER OF JURY TRIAL
EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY; AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH IN THIS SECTION 8.9.
Section 8.10 — Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by electronic mail (in portable document format (.pdf) or any similar electronic imaging format) or by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 8.11 — Third-Party Beneficiaries
The Surviving Corporation, each member of the Company Group, and their respective Affiliates are express and intended third-party beneficiaries of the covenants and agreements of Executive set forth in Article III (Restrictive Covenants) and Article V (Remedies) and shall be entitled to enforce such covenants and agreements directly against Executive, as if they were parties to this Agreement, without the necessity of joining Fund VI as a party to any such enforcement action. Except as expressly set forth in this Section 8.11, this Agreement is not intended to, and shall not, confer upon any Person other than the Parties and their respective heirs, executors, administrators, personal representatives, successors, and permitted assigns any rights or remedies hereunder.
Section 8.12 — Relationship to Merger Agreement
This Agreement is being entered into in connection with, and as a material inducement to, the transactions contemplated by the Merger Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Merger Agreement (or any other transaction document) with respect to the subject matter hereof (including the restrictive covenants, confidentiality obligations, and non-disparagement obligations), the provisions of this Agreement shall govern and control. Notwithstanding the foregoing, the termination of the Merger Agreement prior to the Closing in accordance with its terms, without the Merger being consummated, shall automatically and without further action terminate this Agreement in its entirety, and neither Party shall have any rights, obligations, or liabilities hereunder, in accordance with Section 2.1.
Section 8.13 — Survival
The provisions of this Agreement that by their nature are intended to survive the expiration of the Restricted Period or any termination of Executive's employment with the Surviving Corporation or any of its Affiliates shall so survive, including, without limitation, Section 3.2 (Confidentiality), Section 3.3 (Non-Disparagement), Article IV (Acknowledgments and Reasonableness), Article V (Remedies), Article VI (Judicial Modification),

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

SOLARA DIGITAL INFRASTRUCTURE FUND VI LP

JONATHAN HARGROVE

NON-COMPETITION AND NON-SOLICITATION AGREEMENT

RECITALS

WHEREAS:

Record

Parties

Dates

Amounts