**ATTORNEY-CLIENT PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT** This communication is protected by the attorney-client privilege and/or work-product doctrine. It is intended solely for the use of the addressee(s). Do not forward, distribute, or disclose this communication or any of its contents without prior consultation with Calderwood & Harkness LLP.
---
Dear Priya,
I am writing to provide you with an update on the status of our negotiations with Whitaker, Drummond & Chase LLP (counsel to Greystone Capital Partners LP) regarding the Cooperation Agreement, following our receipt and review of their latest redline markup. As you know, Marcus Leung and Sophie Tremblay have been reviewing the markup since it was received on May 22, and Marcus and I conducted a follow-up call with Jonathan Whitaker and Maya Krishnamurthy on May 26 to discuss the principal open points.
**Overall Status**
I am pleased to report that the parties have reached substantial alignment on most terms, consistent with the April 28 term sheet. The structural and non-controversial provisions are all agreed or close to final language. Specifically, the following are resolved or at near-final drafting:
- Governing law (Delaware) and exclusive forum (Court of Chancery of the State of Delaware, with fallback to the Superior Court of the State of Delaware or the U.S. District Court for the District of Delaware); - Board expansion from 11 to 12 directors; - Appointment of Catherine "Kate" Sinclair-Moreau as a Class II director and her appointment to the Technology & Strategy Committee; - Withdrawal of marshall Henning's nomination; - The 9.9% beneficial ownership cap; - Standstill restrictions, including prohibitions on proxy solicitations, consent solicitations, vote-no campaigns, calling special meetings, public proposals, and group formation under Section 13(d)(3) of the Exchange Act; - Standstill period running through 30 calendar days prior to the advance notice deadline for the 2025 AGM; - Confidentiality obligations surviving 24 months post-Standstill; and - The 15-business-day cure period for material breach.
NTP's reciprocal obligations — non-disparagement, the slate commitment for Ms. Sinclair-Moreau at the 2025 AGM, and the board size cap at 12 without Greystone's prior written consent — are likewise agreed.
That said, four material open points remain, which I address in turn below.
---
**Open Issue #1: Voting Discretion on Extraordinary Transactions**
Under the current agreed framework, Greystone will vote all of its NTP shares (28,016,000 shares, representing approximately 6.8% of NTP's 412,000,000 shares outstanding) in favor of NTP's director nominees and in accordance with the Board's recommendation on all other proposals during the Standstill Period, except with respect to "Extraordinary Transactions," on which Greystone may vote in its discretion.
Our current draft defines "Extraordinary Transactions" as mergers, acquisitions, or dispositions involving consideration in excess of 25% of NTP's market capitalization. Whitaker, Drummond & Chase is pushing for a broader definition that would also encompass (a) any spin-off or separation of a business unit contributing more than 15% of consolidated revenue, and (b) any single-transaction share issuance exceeding 10% of outstanding shares.
The spin-off/separation carve-out is clearly aimed at giving Greystone a free hand to vote on any potential separation or sale of the Enterprise Software Division, which contributed $1.82 billion of NTP's $6.38 billion FY 2022 revenue — approximately 28.5%.
*Recommendation:* We recommend accepting the spin-off/separation carve-out but at the 25% revenue threshold (not 15%), which would still capture any ESD transaction and is consistent with the materiality standard used elsewhere in the definition. We should push back firmly on the share issuance provision as overreaching and outside the scope of the April 28 term sheet. This is a point I would like to discuss with Sir Edmund Prumvane and Fiona Caldwell before our next call with Whitaker's team.
---
**Open Issue #2: Expense Reimbursement Cap**
Greystone's latest position seeks reimbursement of documented, reasonable out-of-pocket expenses (including legal fees incurred by Whitaker, Drummond & Chase LLP and advisory fees to Veltrano Advisors LLC) up to $2.25 million. NTP's position, consistent with the term sheet, is a cap of $1,750,000. On the May 26 call, Jonathan Whitaker indicated that Greystone has already incurred approximately $1.4 million in fees and expenses and expects additional costs through execution and the 13D/A filing.
*Recommendation:* We recommend holding firm at $1,750,000. This cap is well within market range for a single-seat settlement of this type and was the figure reflected in the agreed term sheet of April 28. Both Dennis Hargrove at Hargrove Advisory Group LLC and Victoria Chen-Halsted at Esterline Partners LLC have confirmed this is in line with comparable precedents. If necessary to bridge the gap, we could offer a modest increase to $1.85 million, but I would not recommend approaching $2 million.
---
**Open Issue #3: Non-Disparagement Tail Period**
Our current draft provides for a mutual non-disparagement obligation that applies during the Standstill Period and survives for 12 months following expiration of the Standstill. Greystone's markup proposes extending the survival to 24 months post-Standstill, matching the confidentiality survival period.
*Recommendation:* This is a lower-priority item and could be used as a concession point if needed to hold the line on the expense reimbursement cap and the Extraordinary Transaction definition. That said, our initial recommendation is to maintain 12 months, which is standard in comparable cooperation agreements. If we ultimately concede on this point, I would suggest 18 months as a compromise position.
---
**Open Issue #4: Replacement Director Mechanics**
Under our current draft, if Ms. Sinclair-Moreau ceases to serve on the Board other than due to her voluntary resignation, NTP must appoint a mutually agreed replacement within 30 calendar days, failing which the Standstill terminates. Greystone's markup proposes three changes: (a) reducing the replacement period to 15 calendar days; (b) providing that if the parties cannot agree on a replacement, Greystone shall have the right to designate a replacement from a pre-agreed list of three candidates to be identified at execution; and (c) clarifying that the trigger applies regardless of the reason for Ms. Sinclair-Moreau's departure, including if the Board removes her or fails to re-nominate her in breach of the slate commitment.
*Recommendation:* We should hold firm on the 30-calendar-day period. Fifteen days is impractical given the need for vetting, D&O questionnaire review, background checks, NYSE notification, and D&O insurance coverage confirmation. The pre-agreed candidate list concept is worth considering, but should be limited to two names (not three), and any designee must satisfy NTP's standard independence and qualification criteria as set forth in NTP's Corporate Governance Guidelines. The clarification regarding the trigger is reasonable and should be accepted — it merely confirms what is already implicit in the structure.
---
**Next Steps**
Our next call with Jonathan Whitaker and Maya Krishnamurthy is scheduled for **Friday, June 2, 2023 at 10:00 AM EDT**. Before that call, I would recommend a brief internal alignment call with you, Sir Edmund, and Fiona to confirm our negotiating positions on the four open issues. Would either **Wednesday, May 31** or **Thursday, June 1** work on your end? We are flexible on timing.
As you know, the advance notice deadline (April 12, 2023) has already passed, so there is no immediate procedural pressure. However, the July 12 AGM is now only six weeks away, and the Board would like to announce the settlement well in advance. Our target remains execution by mid-June and 8-K filing promptly thereafter.
Sophie Tremblay is preparing a revised draft of the Cooperation Agreement incorporating NTP's responses to the redline, which will be ready for your internal review by **June 1**. I will circulate that draft along with an updated issues list at that time.
Separately, please note that Pinnacle Trust Company, N.A. (NTP's transfer agent) will need notification regarding Ms. Sinclair-Moreau's appointment for board composition records once we reach execution, and Hargrove Advisory Group will need to begin preparing the shareholder communication strategy for the announcement. We may wish to loop in the relevant teams on timing as we get closer to a final agreement.
For reference, the Whitaker, Drummond & Chase redline received May 22 was previously circulated to you under separate cover.
Happy to discuss any of the foregoing at your convenience. We are available by phone this evening (London time) or tomorrow morning.
Best regards,
**Angela Fontaine** Partner **Calderwood & Harkness LLP** 7 Finsbury Square, London EC2A 1AF 450 Lexington Avenue, New York, NY 10017 T: +44 (0)20 7862 4100
---
*CONFIDENTIALITY NOTICE: This e-mail message, including any attachments, is sent by Calderwood & Harkness LLP and is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential, and exempt from disclosure under applicable law, including the attorney-client privilege and/or work-product doctrine. If you are not the intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by reply e-mail or by telephone at the number above and delete the original message and all copies from your system. Thank you.*