CALDERWOOD & HARKNESS LLP Counselors at Law 1 Liberty Plaza, 38th Floor New York, NY 10006 Tel: (212) 554-7000
Fax: (212) 554-7001
www.calderwoodharkness.com
September 14, 2022
VIA EMAIL AND U.S. MAIL
Thomas Langford, Esq. General Counsel Vantage Mobility Systems Corp. 4700 Automation Boulevard, Suite 300 Auburn Hills, MI 48326
Dear Mr. Langford:
We are pleased to confirm the engagement of Calderwood & Harkness LLP ("Calderwood & Harkness," the "Firm," or "we") by Vantage Mobility Systems Corp. ("VMS" or the "Company") in connection with the matter described in this engagement letter (this "Letter"). This Letter sets forth the terms and conditions under which the Firm will provide legal services to VMS in this matter. We appreciate the confidence that VMS has placed in our Firm, and we look forward to working with you and your team.
1. Purpose and Scope of Engagement
Calderwood & Harkness has been engaged to represent VMS in connection with the drafting, negotiation, and finalization of a Data Processing Agreement ("DPA") with Meridian Telematics Solutions, Inc. ("Meridian"), a Delaware corporation headquartered in Palo Alto, California. The DPA will govern the terms and conditions under which Meridian will process certain categories of personal data and other information in connection with a connected-vehicle data-sharing partnership between VMS and Meridian (the "Partnership").
By way of background, the Partnership contemplates that Meridian will serve as a data processor, processing and analyzing real-time telematics data and in-cabin sensor data collected from VMS's fleet of connected vehicles equipped with VMS's proprietary VantageLink platform. The VantageLink platform collects, transmits, and aggregates range data streams from connected vehicles, including geolocation data, vehicle diagnostics, driver behavior analytics, and environmental sensor readings. Meridian's role under the Partnership will involve the receipt, storage, processing, and analysis of such data for purposes to be defined in the DPA and in the underlying commercial agreement between the parties. The Partnership is being pursued pursuant to a non-binding Letter of Intent executed by VMS and Meridian on August 5, 2022 (the "LOI").
The scope of the Firm's engagement in this matter specifically includes the following:
(a) Preparation of the initial draft DPA and all related annexes, schedules, appendices, and exhibits, including without limitation data processing descriptions, technical and organizational measures schedules, sub-processor lists, and data transfer impact assessment documentation;
(b) Review, analysis, and preparation of responsive comments and counterproposals in connection with any comments, redlines, or counterproposals received from Meridian or Meridian's counsel;
(c) Negotiation of the DPA with Meridian's outside counsel, Whitfield, Barrow & Crane LLP, including participation in negotiation calls, exchanges of marked drafts, and resolution of open issues;
(d) Coordination with VMS's internal stakeholders regarding data governance, privacy, and cybersecurity considerations relevant to the DPA, including consultation with the Company's Chief Privacy Officer and its information security team as needed to ensure that the DPA accurately reflects VMS's data protection requirements and organizational capabilities; and
(e) Finalization and execution of the DPA, including preparation of final execution copies and coordination of the signature process.
For the avoidance of doubt, the scope of this engagement does not include any of the following:
(i) Negotiation, drafting, or review of the underlying commercial agreement, term sheet, master services agreement, or any other commercial arrangement governing the business terms of the Partnership between VMS and Meridian;
(ii) Any regulatory filings, government submissions, permit applications, or other regulatory compliance work related to the Partnership or the DPA, whether with domestic or international regulatory authorities;
(iii) Any cybersecurity assessments, penetration testing, vulnerability scanning, technical audits, or other technical evaluations of Meridian's or any sub-processor's data processing environment, systems, or infrastructure — VMS has separately retained Pinehurst Cybersecurity Advisors LLC for such purposes, and the Firm's work will be limited to incorporating the results of any such assessments into the DPA as directed by VMS; or
(iv) Any litigation, arbitration, mediation, or other dispute resolution proceedings arising out of or relating to the Partnership, the DPA, or VMS's relationship with Meridian or any sub-processor.
Should VMS wish to expand the scope of this engagement or engage the Firm in connection with any of the foregoing matters, we would be pleased to discuss the terms of any such additional engagement separately and in writing.
2. Firm Matter Number
The Firm's internal matter number for this engagement is 1007-00007. All correspondence, invoices, time entries, and other communications from the Firm relating to this matter will reference this matter number. We respectfully request that VMS include this matter number on all communications directed to the Firm regarding this engagement to facilitate proper identification and routing of correspondence within our systems.
3. Engagement Team
The following attorneys will be primarily responsible for this engagement:
Rachel Bernstein, Partner, Privacy & Data Security Practice Group — Responsible Partner. Ms. Bernstein will have overall responsibility for the engagement, will supervise all work product generated in connection with this matter, and will serve as the primary relationship partner for VMS on this engagement. Ms. Bernstein has extensive experience advising clients in the automotive, mobility, and technology sectors on complex data processing arrangements, privacy compliance, and cross-border data transfer frameworks, and she will bring that experience to bear in connection with the DPA negotiations.
Kevin Ostrowski, Partner, Privacy & Data Security Practice Group — Billing Partner. Mr. Ostrowski will be responsible for billing administration for this engagement and will provide strategic counsel and guidance on select issues as needed. Mr. Ostrowski will coordinate with VMS's Legal Department on all billing-related matters and will serve as the primary point of contact for any questions or concerns regarding invoices, fees, or expense reimbursement.
Alan Burke, Senior Associate, Privacy & Data Security Practice Group — Lead Associate. Mr. Burke will serve as the day-to-day lead on this engagement and will be responsible for drafting the initial DPA and annexes, conducting legal research on applicable data protection laws and regulations, preparing negotiation memos and analysis of Meridian's counterproposals, and participating in negotiation sessions with Meridian's counsel.
Sara Hendricks, Associate, Privacy & Data Security Practice Group — Working Associate. Ms. Hendricks will support Mr. Burke in drafting, research, and regulatory analysis. Ms. Hendricks will focus in particular on analysis of applicable state consumer privacy laws, sector-specific data protection requirements, and sub-processor due diligence and contractual flow-down provisions.
From time to time, additional attorneys, paralegals, or other professional staff may be assigned to the matter as the Firm deems appropriate to ensure the efficient and effective delivery of legal services. The Firm will inform VMS of any such additions to the engagement team. Except as otherwise noted in Section 4 below, the hourly rates for any additional personnel will be commensurate with their seniority and experience level and consistent with the Firm's standard rate schedule then in effect.
For purposes of this engagement, the primary client contacts at VMS are identified as follows:
Diana Kowalski, Chief Privacy Officer, Vantage Mobility Systems Corp. — Ms. Kowalski will serve as the primary contact for all substantive privacy, data governance, and data protection matters arising in connection with the DPA drafting and negotiation process.
Thomas Langford, General Counsel, Vantage Mobility Systems Corp. — Mr. Langford will serve as the primary contact for legal oversight of the engagement, engagement administration, and any matters related to the terms of this Letter.
The Firm will direct day-to-day communications regarding the substance of the DPA drafting and negotiations primarily to Ms. Kowalski, with copies to Mr. Langford as appropriate, unless VMS instructs otherwise. Communications regarding engagement administration, billing, and the terms of this Letter will be directed to Mr. Langford.
4. Fees and Billing Arrangements
4.1 Hourly Rates
Fees for professional services rendered in connection with this engagement will be charged on an hourly basis at the following current standard rates for the assigned engagement team members:
The foregoing rates are subject to periodic adjustment, which typically occurs on an annual basis effective January 1 of each calendar year. The Firm will provide VMS with advance written notice of not less than thirty (30) days prior to the effective date of any rate adjustment applicable to attorneys assigned to this engagement. If additional attorneys or professional staff are assigned to the engagement as described in Section 3 above, their hourly rates will be commensurate with their seniority and experience level and will be consistent with the Firm's standard rate schedule in effect at the time of their assignment.
Time is recorded and billed in increments of one-tenth (1/10) of an hour. Billing entries will include a description of the services performed in sufficient detail to enable VMS to evaluate the nature and extent of the work conducted.
4.2 Northgate Capital Partners Portfolio Billing Guidelines
The Firm acknowledges that VMS is a portfolio company of Northgate Capital Partners LLC ("Northgate"), and that Northgate has established portfolio billing guidelines (the "Northgate Guidelines") applicable to outside counsel engagements undertaken on behalf of Northgate's portfolio companies. Calderwood & Harkness has received a copy of the Northgate Guidelines and agrees to comply with the applicable provisions thereof, including any voluntary fee reduction, discount, or alternative fee arrangement provisions set forth therein, as discussed and agreed upon between the Firm and VMS prior to the execution of this Letter.
Any fee adjustments, discounts, or other modifications to the standard billing rates or arrangements set forth herein that are made in accordance with the Northgate Guidelines will be reflected on the Firm's monthly invoices. To the extent that there is any conflict between the terms of this Letter and the Northgate Guidelines with respect to billing and payment matters, the parties will endeavor to resolve such conflict in good faith, with the terms of this Letter controlling unless VMS instructs otherwise in writing.
4.3 Disbursements and Expenses
In addition to fees for professional services, VMS will be responsible for reimbursement of reasonable out-of-pocket disbursements and expenses incurred by the Firm in connection with the engagement. Such disbursements and expenses may include, but are not limited to, the following:
• Travel expenses (including airfare, ground transportation, hotel accommodations, and meals), if any, incurred in connection with in-person meetings or negotiation sessions related to the DPA;
• Document reproduction and printing costs;
• Overnight courier and delivery charges;
• Charges for computerized legal research services, including Westmark Data Systems, Sundial Solutions, and other electronic research platforms;
• Filing fees, if any;
• Long-distance telephone and teleconference charges; and
• Other reasonable and necessary expenses directly attributable to this engagement.
All disbursements and expenses will be billed at cost without markup. The Firm will exercise reasonable judgment in incurring expenses and will seek VMS's prior approval before incurring any individual expense in excess of $2,500.00.
4.4 Billing and Payment
The Firm will render invoices on a monthly basis. Invoices will itemize fees for professional services by attorney, including the date of service, a description of the work performed, and the time expended, as well as a separate itemization of all disbursements and expenses incurred during the billing period. Invoices will be sent to the following billing address:
Vantage Mobility Systems Corp.
Attn: Legal Department
4700 Automation Boulevard, Suite 300 Auburn Hills, MI 48326
The Firm may also transmit invoices electronically to such email address(es) as VMS may designate from time to time. Payment is due within thirty (30) days of the invoice date. The Firm reserves the right to charge interest on past-due amounts at the rate of one percent (1%) per month, or the maximum rate permitted by applicable law, whichever is less. In the event of any billing dispute, VMS agrees to notify the Firm in writing within fifteen (15) days of receipt of the invoice in question, and the parties will work together in good faith to resolve the dispute promptly.
5. Client Identification and Conflicts
The Firm's client in this engagement is Vantage Mobility Systems Corp. For the avoidance of doubt, the Firm does not represent Northgate Capital Partners LLC, Northgate Fund II, L.P., or any other Northgate affiliate, fund, general partner entity, management company, or portfolio company in this matter, unless the Firm is separately engaged in writing to provide legal services to any such entity.
The Firm has conducted a conflicts check in accordance with its standard procedures and the applicable Rules of Professional Conduct, and based on the information currently available to the Firm, the Firm has identified no conflicts of interest that would preclude the Firm from undertaking this representation. VMS acknowledges that the Firm is a large, multi-practice law firm that represents numerous clients across a wide range of industries, and that it is possible that the Firm currently represents, has previously represented, or may in the future represent, entities that are competitors, counterparties, or business partners of VMS or Meridian in matters unrelated to this engagement. Nothing in this Letter shall be construed as restricting the Firm's ability to represent other clients, including clients whose interests may be adverse to those of VMS, in matters unrelated to the subject matter of this engagement, provided that such representation does not give rise to a conflict of interest under applicable professional responsibility rules.
If a conflict of interest arises during the course of this engagement, the Firm will promptly notify VMS and take appropriate steps in accordance with applicable professional responsibility rules, which may include seeking an informed written consent waiver from the affected parties or, if a waiver is not obtainable or appropriate, withdrawing from the engagement.
6. Confidentiality
All information provided to Calderwood & Harkness by VMS in connection with this engagement will be treated as confidential and will be subject to the protections afforded by the attorney-client privilege and/or the work product doctrine, as applicable under governing law. The Firm recognizes the sensitivity of the information that VMS will share with the Firm in connection with the DPA negotiations, including information concerning VMS's data collection practices, vehicle telematics architecture, data governance frameworks, cybersecurity posture, and commercial strategy with respect to the Partnership.
The Firm will not disclose confidential client information to any third party without VMS's prior written consent, except as may be required by applicable law, court order, or the Firm's obligations under the applicable Rules of Professional Conduct. The Firm will take reasonable steps to safeguard the confidentiality of VMS's information, including maintaining appropriate physical, technical, and administrative safeguards consistent with the Firm's information security policies and applicable professional standards.
7. Governing Law
This Letter and any disputes arising hereunder or relating hereto, including disputes regarding the Firm's fees, billing, or the scope of the engagement, shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in Oakland County, Michigan, for the resolution of any disputes arising under or relating to this Letter.
8. Termination
Either party may terminate this engagement at any time upon written notice to the other party, subject to the Firm's obligations under applicable rules of professional conduct, including any obligations to seek court approval of withdrawal in the event that the engagement involves pending proceedings before a court or tribunal.
Upon termination of the engagement, VMS will remain responsible for payment of all fees for professional services rendered and all disbursements and expenses incurred through the effective date of termination. The Firm will render a final invoice within thirty (30) days of the effective date of termination, and payment of such final invoice will be due in accordance with the payment terms set forth in Section 4.4 above.
Upon termination, the Firm will cooperate fully in the orderly transition of the matter to successor counsel, if any, designated by VMS. The Firm will, upon VMS's request, promptly deliver to VMS or its successor counsel all documents, work product, and other materials in the Firm's possession relating to this engagement that belong to VMS or that VMS is entitled to receive, subject to the Firm's right to retain copies of such materials for its records and in accordance with its document retention policies.
9. Limitation of Scope; No Guarantee of Outcome
This engagement is limited to the scope described in Section 1 of this Letter. The Firm's representation of VMS in this matter does not extend to any other legal matters, transactions, disputes, or regulatory proceedings, whether currently existing or arising in the future, unless the Firm is separately engaged in writing to provide legal services with respect to any such additional matter.
While the Firm will use its best professional efforts in connection with this engagement and will endeavor to achieve outcomes consistent with VMS's objectives in the DPA negotiations, the Firm cannot and does not guarantee any particular outcome or result. The negotiation of a data processing agreement necessarily involves the participation and cooperation of the counterparty and its counsel, and the ultimate terms of any executed DPA will depend on range factors, many of which are outside the Firm's control. Nothing in this Letter or in any communication from the Firm shall be construed as a promise or guarantee regarding the outcome of the DPA negotiations or the terms of the final agreement.
10. Document Retention
Upon the conclusion of this engagement, the Firm will retain the engagement file (including all correspondence, work product, notes, memoranda, and related materials) in accordance with the Firm's document retention policies. The Firm's current document retention policies generally provide for the retention of closed engagement files for a period of seven (7) years following the date on which the matter is closed in the Firm's records. At the expiration of the applicable retention period, the Firm may destroy or dispose of the engagement file and all materials contained therein without further notice to VMS, unless VMS has, prior to such destruction, provided written instructions to the Firm requesting the return or continued retention of the file.
VMS is encouraged to request the return of any original documents or materials in the Firm's possession at the conclusion of the engagement. The Firm will return any original documents to VMS upon request.
11. Acceptance and Execution
If the foregoing terms and conditions are acceptable to VMS, we respectfully request that you indicate VMS's acceptance by signing and returning a copy of this Letter to the undersigned at your earliest convenience. A countersigned copy may be returned by email (in PDF format) to rachel.bernstein@calderwoodharkness.com, with a hard copy to follow by mail to the Firm's address set forth above.
Upon execution by both parties, this Letter, together with the enclosed Calderwood & Harkness LLP Standard Terms of Engagement (which are incorporated herein by reference), will constitute the entire agreement between Calderwood & Harkness and VMS with respect to the terms of this engagement and will supersede all prior oral or written communications, understandings, or agreements between the parties relating to the subject matter hereof.
We are enthusiastic about the opportunity to work with VMS on this matter and are confident that our team's experience in privacy and data security transactions will add significant value to the DPA negotiation process. Please do not hesitate to contact me or any member of the engagement team if you have any questions regarding the terms of this Letter or any other aspect of the engagement.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Rachel Bernstein Partner, Privacy & Data Security Practice Group Tel: (212) 554-7128
Email: rachel.bernstein@calderwoodharkness.com
ACCEPTED AND AGREED:
VANTAGE MOBILITY SYSTEMS CORP.
By: ________
Name: Thomas Langford
Title: General Counsel
Date: ________
Encl.: Calderwood & Harkness LLP Standard Terms of Engagement
cc: Diana Kowalski, Chief Privacy Officer, Vantage Mobility Systems Corp. Kevin Ostrowski, Partner, Calderwood & Harkness LLP Erik Johansson, Managing Director, Northgate Capital Partners LLC (included at VMS's discretion per Northgate portfolio billing guidelines)
| Attorney | Position | Hourly Rate |
| Rachel Bernstein | Partner | $1,150.00 |
| Kevin Ostrowski | Partner | $1,100.00 |
| Alan Burke | Senior Associate | $725.00 |
| Sara Hendricks | Associate | $550.00 |