1022-00008 · Northgate Telecommunications PLC · Ancillary Agreements

mutual-nda.docx DOCUMENT M&A / Corporate

2 / 38 ← → ✕

MUTUAL NON-DISCLOSURE AGREEMENT

February 22, 2023

This Mutual Non-Disclosure Agreement (this "Agreement") is entered into as of February 22, 2023 (the "Effective Date"), by and between:

Northgate Americas, Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal office located at 1700 Market Street, Suite 2400, Philadelphia, Pennsylvania 19103 ("Northgate" or, as the context requires, the "Disclosing Party" or the "Receiving Party");

and

Cedarpoint Systems Integration, Inc., a corporation organized and existing under the laws of the State of Delaware, with its headquarters located at 11400 Commerce Park Drive, Suite 600, Reston, Virginia 20191 ("Cedarpoint" or, as the context requires, the "Disclosing Party" or the "Receiving Party").

Each of Northgate and Cedarpoint is referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Northgate Americas, Inc. is a wholly owned subsidiary of Northgate Telecommunications PLC, a public limited company organized under the laws of England and Wales (London Stock Exchange ticker: NTP.L), headquartered at 45 Threadneedle Court, London EC2R 8AH, United Kingdom, which operates telecommunications infrastructure and software-as-a-service ("SaaS") platforms across fourteen (14) countries and employs approximately 22,000 individuals worldwide;

WHEREAS, Cedarpoint Systems Integration, Inc. is a Delaware corporation that specializes in managed network infrastructure, software-defined wide-area network ("SD-WAN") deployment, network monitoring, and cybersecurity services, and which, as of its fiscal year ended December 31, 2022, had approximately 1,800 employees and generated revenues of approximately Four Hundred Twenty Million Dollars ($420,000,000);

WHEREAS, the Parties desire to explore and evaluate a potential business relationship involving managed network services and technology licensing (the "Purpose"), and in connection therewith, each Party may disclose to the other certain confidential and proprietary information that each Party considers to be of significant commercial value;

WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information (as defined below) will be disclosed, received, used, and protected;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION 1 — DEFINITIONS

1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all non-public, proprietary, or confidential information disclosed by either Party (in such capacity, the "Disclosing Party") to the other Party (in such capacity, the "Receiving Party"), whether in written, oral, electronic, visual, or other form, that is designated as confidential at the time of disclosure or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be understood to be confidential. Without limiting the generality of the foregoing, Confidential Information includes:

(a) business plans, corporate strategies, market analyses, financial information (including revenue data, budgets, forecasts, and projections), pricing models, customer lists, customer data, vendor relationships, procurement terms, and supply chain information;

(b) technical data, trade secrets, know-how, inventions (whether or not patentable), designs, algorithms, source code, object code, software architecture, network configurations, platform specifications (including, but not limited to, specifications relating to Cedarpoint's proprietary ArcMesh™ platform), engineering documentation, product roadmaps, and research and development plans;

(c) information relating to managed network services, SD-WAN deployment capabilities, network operations center ("NOC") procedures, service-level performance data, incident response protocols, and cybersecurity monitoring methodologies;

(d) organizational structure, employee information (including compensation data and personnel records), equity ownership structure, capitalization tables, and investor information;

(e) legal and regulatory information, pending or threatened litigation, audit findings, regulatory correspondence, and compliance records; and

(f) any analyses, compilations, studies, notes, summaries, or other documents or materials prepared by the Receiving Party or its Representatives that contain, reflect, or are derived from any of the foregoing (collectively, "Derived Materials").

For the avoidance of doubt, Confidential Information shall include information disclosed orally or visually, provided that the Disclosing Party identifies such information as confidential at the time of disclosure and confirms such designation in writing within ten (10) business days following the date of such oral or visual disclosure.

1.2 "Representatives." As used in this Agreement, "Representatives" means, with respect to each Party, its Affiliates (as defined below), and its and their respective directors, officers, employees, agents, advisors, attorneys, accountants, consultants, and other representatives who have a need to know the Confidential Information for the Purpose and who are bound by obligations of confidentiality no less restrictive than those set forth herein. Without limiting the generality of the foregoing, Representatives specifically includes each Party's outside legal counsel (for Northgate: Calderwood & Harkness LLP; for Cedarpoint: Whitfield Graves & Morrow LLP) and each Party's financial and accounting advisors engaged in connection with the Purpose.

1.3 "Purpose." As used in this Agreement, the "Purpose" means the evaluation and negotiation of a potential Master Services Agreement between the Parties for managed network services, technology licensing, and related professional services across Northgate's North American operations, and any due diligence, technical assessment, commercial analysis, or related activities undertaken in connection therewith.

1.4 "Affiliate." As used in this Agreement, "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, with respect to Northgate, "Affiliate" includes Northgate Telecommunications PLC and each of its direct and indirect subsidiaries. With respect to Cedarpoint, "Affiliate" includes any entity controlled by or under common control with Cedarpoint Systems Integration, Inc.

SECTION 2 — OBLIGATIONS OF CONFIDENTIALITY

2.1 Non-Disclosure and Non-Use. The Receiving Party shall:

(a) hold all Confidential Information of the Disclosing Party in strict confidence and treat such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature and importance, but in no event with less than a reasonable degree of care;

(b) not disclose, publish, or otherwise disseminate any Confidential Information of the Disclosing Party to any person or entity other than its Representatives who (i) have a demonstrable need to know such information for the Purpose and (ii) are bound by written obligations of confidentiality and non-use no less restrictive than those set forth in this Agreement;

(c) use the Confidential Information of the Disclosing Party solely for the Purpose and for no other purpose whatsoever, including, without limitation, any competitive purpose, reverse engineering, or product development purpose unrelated to the Purpose; and

(d) take all reasonable measures to prevent the unauthorized disclosure, use, or dissemination of the Disclosing Party's Confidential Information, including implementing appropriate physical, technical, and administrative safeguards.

2.2 Responsibility for Representatives. Each Party shall be responsible for any breach of this Agreement by any of its Representatives. Each Party shall, prior to any disclosure of Confidential Information to any of its Representatives, ensure that such Representatives are informed of the confidential nature of the Confidential Information, the terms and restrictions of this Agreement, and the obligation to treat such information in accordance with the provisions set forth herein. The Receiving Party shall promptly notify the Disclosing Party upon becoming aware of any unauthorized access, use, or disclosure of the Disclosing Party's Confidential Information by any of the Receiving Party's Representatives.

2.3 No Onward Disclosure. The Receiving Party shall not disclose, transfer, or otherwise make available any Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, except as expressly permitted under this Agreement or as required by applicable law, regulation, or legal process in accordance with Section 4 below. Any disclosure to a third party consented to by the Disclosing Party shall be subject to written confidentiality obligations no less restrictive than those contained in this Agreement.

SECTION 3 — EXCLUSIONS FROM CONFIDENTIAL INFORMATION

The obligations set forth in this Agreement shall not apply to any information that the Receiving Party can demonstrate:

(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement;

(b) was already in the Receiving Party's possession on a non-confidential basis prior to disclosure by the Disclosing Party, as evidenced by the Receiving Party's contemporaneous written records existing prior to the date of such disclosure;

(c) is independently developed by the Receiving Party or its Representatives without reference to, reliance on, or use of any of the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's contemporaneous written records; or

(d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not known by the Receiving Party (after reasonable inquiry) to be bound by a confidentiality obligation to the Disclosing Party with respect to such information.

The burden of establishing that any of the foregoing exclusions applies shall rest with the Receiving Party claiming the benefit of such exclusion. A specific item of Confidential Information shall not be deemed to fall within any of the foregoing exclusions merely because it is embraced by more general information in the public domain or in the Receiving Party's possession. Additionally, any combination of features forming part of the Confidential Information shall not be deemed to be within any of the foregoing exclusions merely because individual features are within the public domain or in the Receiving Party's possession, unless the combination itself and its principle of operation are within the public domain or in the Receiving Party's possession.

SECTION 4 — COMPELLED DISCLOSURE

If the Receiving Party or any of its Representatives is required by applicable law, regulation, legal process, or governmental order (including, without limitation, any subpoena, civil investigative demand, interrogatory, request for production, or similar legal or regulatory process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permitted:

(a) provide the Disclosing Party with prompt written notice of such requirement (and in any event, no later than five (5) business days after receiving such requirement, or such shorter period as may be required to afford the Disclosing Party a reasonable opportunity to respond) so that the Disclosing Party may seek a protective order, motion to quash, or other appropriate remedy to prevent or limit such disclosure;

(b) reasonably cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in its efforts to obtain such protective order or other remedy; and

(c) disclose only that portion of the Confidential Information that the Receiving Party is advised by its legal counsel is legally required to be disclosed, and shall exercise commercially reasonable efforts to ensure that confidential treatment is accorded to such disclosed Confidential Information by the requesting authority or tribunal.

For the avoidance of doubt, any Confidential Information that is disclosed pursuant to this Section 4 in compliance with the foregoing requirements shall continue to be treated as Confidential Information of the Disclosing Party for all other purposes under this Agreement, and the Receiving Party's obligations under this Agreement with respect to such Confidential Information shall not be deemed waived or otherwise affected by such compelled disclosure.

SECTION 5 — RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION

5.1 Return/Destruction Obligation. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly, and in any event within thirty (30) calendar days of such request, termination, or expiration, at the Disclosing Party's sole election:

(a) return to the Disclosing Party all tangible and electronic materials containing or embodying Confidential Information of the Disclosing Party (including all copies, extracts, summaries, and Derived Materials in any form or medium); or

(b) destroy all such materials and all copies thereof and provide the Disclosing Party with a written certification signed by an authorized officer of the Receiving Party confirming that such destruction has been completed in accordance with this Section 5.1.

5.2 Retained Copies Exception. Notwithstanding Section 5.1, the Receiving Party may retain:

(a) one (1) archival copy of the Confidential Information in the files of its legal counsel (whether in-house or outside counsel) solely for the purpose of establishing compliance with the Receiving Party's obligations under this Agreement and for the defense of any claims related thereto; and

(b) copies of Confidential Information that are automatically retained on the Receiving Party's electronic backup, archival, or disaster recovery systems in the ordinary course of the Receiving Party's information technology operations, provided that the Receiving Party shall not intentionally access such retained copies for any purpose other than as permitted by this Agreement.

Any copies of Confidential Information retained pursuant to this Section 5.2 shall remain subject to the confidentiality and non-use obligations of this Agreement for the full duration of the Term and any applicable survival period set forth in Section 8.3.

5.3 Survival of Obligations. The return or destruction of Confidential Information pursuant to Section 5.1 shall not relieve the Receiving Party of any of its obligations under this Agreement with respect to any Confidential Information retained pursuant to Section 5.2, including, without limitation, the obligations of confidentiality, non-disclosure, and non-use set forth in Section 2. Such obligations shall continue in full force and effect in accordance with the terms of this Agreement.

SECTION 6 — NO LICENSE OR OTHER RIGHTS

No disclosure of Confidential Information under this Agreement shall constitute or be deemed to constitute a grant to the Receiving Party of any license, right, title, or interest in or to such Confidential Information or any intellectual property rights of the Disclosing Party, whether by implication, estoppel, or otherwise. All Confidential Information disclosed pursuant to this Agreement shall remain the sole and exclusive property of the Disclosing Party, and the Receiving Party shall acquire no rights therein by virtue of the disclosure or receipt of such Confidential Information.

Nothing in this Agreement shall be construed as obligating either Party to enter into any further agreement of any kind, including, but not limited to, any Master Services Agreement, technology license agreement, joint venture agreement, or other commercial arrangement. Each Party reserves the right, in its sole and absolute discretion, to terminate discussions and negotiations relating to the Purpose at any time and for any reason, without liability to the other Party.

Nothing in this Agreement shall be construed as creating an agency, partnership, joint venture, or employment relationship between the Parties.

SECTION 7 — NO WARRANTY

ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER. Without limiting the generality of the foregoing, neither Party shall have any liability to the other Party arising from or relating to the other Party's use of or reliance upon any Confidential Information, except for the obligations and liabilities expressly set forth in this Agreement.

Each Party acknowledges that the Confidential Information may include projections, estimates, assumptions, and other forward-looking information, and that the Disclosing Party makes no representation or warranty that any such projections, estimates, or assumptions will be achieved, or that the actual results will not materially differ therefrom. The Receiving Party shall be solely responsible for its own evaluation of the Confidential Information and for any decisions or actions taken in reliance thereon.

SECTION 8 — TERM AND TERMINATION

8.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for a period of three (3) years from the Effective Date (i.e., until February 22, 2026), unless earlier terminated in accordance with Section 8.2 below (the "Term").

8.2 Termination. Either Party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' prior written notice to the other Party, delivered in accordance with Section 12 of this Agreement. Termination of this Agreement shall not affect either Party's obligations with respect to Confidential Information disclosed prior to the effective date of such termination.

8.3 Survival. The obligations of confidentiality, non-disclosure, and non-use set forth in this Agreement, including, without limitation, those obligations set forth in Sections 2, 3, 4, 5, 6, 7, 9, 10, and 11, shall survive the termination or expiration of this Agreement for a period of three (3) years following the date of such termination or expiration. Notwithstanding the foregoing, the Receiving Party's obligations with respect to any Confidential Information that constitutes a trade secret under applicable law (including the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., and the Uniform Trade Secrets Act as adopted in any applicable jurisdiction) shall survive for so long as such information continues to qualify as a trade secret under applicable law.

SECTION 9 — REMEDIES

9.1 Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of this Agreement by the Receiving Party or its Representatives may cause irreparable harm to the Disclosing Party for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek immediate injunctive relief, specific performance, or other equitable relief from any court of competent jurisdiction to prevent or restrain any such breach or threatened breach of this Agreement, without the necessity of proving actual damages, posting any bond, or furnishing any other security. The Receiving Party hereby waives any requirement for the securing or posting of any bond or other security in connection with any application for such equitable relief.

9.2 Cumulative Remedies. The rights and remedies set forth in this Agreement, including, without limitation, the right to seek equitable relief under Section 9.1, are cumulative and shall be in addition to, and not in lieu of, any other rights and remedies available to the Disclosing Party at law, in equity, or under any other agreement between the Parties. The exercise of any one remedy by the Disclosing Party shall not preclude the exercise of any other remedy.

SECTION 10 — NON-SOLICITATION

During the Term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither Party shall, directly or indirectly, solicit for employment, engage as an independent contractor, or hire any employee of the other Party (or any employee of the other Party's Affiliates) with whom such Party has had contact in connection with the Purpose or who has been identified through the exchange of Confidential Information, without the prior written consent of the other Party. The foregoing restriction shall not apply to:

(a) general solicitations of employment published in newspapers, trade journals, industry publications, job boards, or other media of general circulation, or through recruiting agencies, in each case not specifically directed at the employees of the other Party or its Affiliates; or

(b) any individual who has ceased to be employed by the other Party or its Affiliates for a period of at least six (6) months prior to the date of any solicitation or hiring.

SECTION 11 — STANDSTILL

During the Term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither Party shall, directly or indirectly, use any Confidential Information obtained pursuant to this Agreement to acquire or attempt to acquire, by purchase, tender offer, exchange offer, merger, consolidation, business combination, or otherwise, any securities (including equity or debt securities), assets, or business of the other Party or any of its Affiliates, except as expressly contemplated by any definitive agreement entered into between the Parties in connection with the Purpose. This Section 11 shall not restrict either Party from acquiring securities of the other Party or its Affiliates in the open market so long as such acquisition does not result in the acquiring Party owning, in the aggregate, more than one percent (1%) of the outstanding securities of any class of the other Party or its publicly traded Affiliates, and so long as such acquisition is not made with the intent to, or for the purpose of, influencing the management or policies of such entity.

SECTION 12 — NOTICES

All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective: (i) upon delivery, if delivered by hand; (ii) one (1) business day after deposit with a nationally recognized overnight courier service, prepaid for next-business-day delivery; or (iii) three (3) business days after being sent by certified or registered mail, return receipt requested, postage prepaid, in each case addressed to the applicable Party at the address set forth below (or to such other address as such Party may designate by written notice to the other Party from time to time):

If to Northgate Americas, Inc.:

Northgate Americas, Inc. 1700 Market Street, Suite 2400 Philadelphia, Pennsylvania 19103

Attention: Deirdre Kwan, Vice President of Procurement, North America

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

Marcus Harcourt, General Counsel Northgate Telecommunications PLC 45 Threadneedle Court London EC2R 8AH United Kingdom

If to Cedarpoint Systems Integration, Inc.:

Cedarpoint Systems Integration, Inc. 11400 Commerce Park Drive, Suite 600 Reston, Virginia 20191

Attention: Nadia Okafor, General Counsel

Either Party may change its address for purposes of notices under this Agreement by providing written notice of such change to the other Party in accordance with this Section 12.

SECTION 13 — GENERAL PROVISIONS

13.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law principles that would result in the application of the laws of any other jurisdiction. Each Party acknowledges that this Agreement was negotiated at arm's length and that the choice of New York law reflects the mutual agreement of the Parties following good-faith negotiation.

13.2 Jurisdiction and Venue. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the state and federal courts located in the Borough of Manhattan, City of New York, State of New York, for the resolution of any disputes, claims, or controversies arising out of, relating to, or in connection with this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof. Each Party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in any such court, and irrevocably waives any claim that any such proceeding brought in any such court has been brought in an inconvenient forum.

13.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, understandings, commitments, offers, and other agreements (whether written or oral) between the Parties relating to the subject matter hereof. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agreement may be superseded in whole or in part by confidentiality provisions contained in any subsequent definitive agreement between the Parties, including, without limitation, any Master Services Agreement (as may ultimately be incorporated in any such Master Services Agreement as Section 12 or otherwise).

13.4 Amendment and Waiver. No amendment, modification, or supplement to this Agreement shall be effective or binding unless made in writing and signed by a duly authorized representative of each Party. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement or at law or in equity.

13.5 Assignment. Neither Party may assign, transfer, delegate, or otherwise dispose of this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may, without the consent of the other Party, assign this Agreement to (a) an Affiliate, or (b) a successor entity in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets, in each case provided that the assignee expressly assumes all of the assigning Party's obligations under this Agreement in writing. Any purported assignment in violation of this Section 13.5 shall be null, void, and of no force or effect.

13.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been included herein. The Parties shall negotiate in good faith to replace any such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid, illegal, or unenforceable provision.

13.7 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. Signatures transmitted by facsimile, portable document format (PDF), or other electronic means (including any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act as adopted in any applicable jurisdiction) shall be deemed original signatures for all purposes and shall be sufficient to bind the Parties.

13.8 Construction. The headings and captions used in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The terms "include," "includes," and "including" as used in this Agreement shall be deemed to be followed by the phrase "without limitation." Unless the context otherwise requires, (a) all references to Sections are to Sections of this Agreement, (b) words in the singular include the plural and vice versa, and (c) the words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement. This Agreement has been negotiated by the Parties and their respective counsel, and no provision shall be construed against any Party on the ground that such Party drafted or proposed such provision.

[Signature Page Follows]

SIGNATURE PAGE TO MUTUAL NON-DISCLOSURE AGREEMENT

IN WITNESS WHEREOF, each of the undersigned Parties has caused this Mutual Non-Disclosure Agreement to be executed by its duly authorized representative as of the Effective Date first written above.

NORTHGATE AMERICAS, INC.

By: ________

Name: Warren Liang

Title: President

Date: February 22, 2023

CEDARPOINT SYSTEMS INTEGRATION, INC.

By: ________

Name: Rajiv Sundaram

Title: Chief Executive Officer

Date: February 22, 2023

MUTUAL NON-DISCLOSURE AGREEMENT
February 22, 2023
This Mutual Non-Disclosure Agreement (this "Agreement") is entered into as of February 22, 2023 (the "Effective Date"), by and between:
Northgate Americas, Inc., a corporation organized and existing under the laws of the State of Delaware, with its principal office located at 1700 Market Street, Suite 2400, Philadelphia, Pennsylvania 19103 ("Northgate" or, as the context requires, the "Disclosing Party" or the "Receiving Party");
and
Cedarpoint Systems Integration, Inc., a corporation organized and existing under the laws of the State of Delaware, with its headquarters located at 11400 Commerce Park Drive, Suite 600, Reston, Virginia 20191 ("Cedarpoint" or, as the context requires, the "Disclosing Party" or the "Receiving Party").
Each of Northgate and Cedarpoint is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Northgate Americas, Inc. is a wholly owned subsidiary of Northgate Telecommunications PLC, a public limited company organized under the laws of England and Wales (London Stock Exchange ticker: NTP.L), headquartered at 45 Threadneedle Court, London EC2R 8AH, United Kingdom, which operates telecommunications infrastructure and software-as-a-service ("SaaS") platforms across fourteen (14) countries and employs approximately 22,000 individuals worldwide;
WHEREAS, Cedarpoint Systems Integration, Inc. is a Delaware corporation that specializes in managed network infrastructure, software-defined wide-area network ("SD-WAN") deployment, network monitoring, and cybersecurity services, and which, as of its fiscal year ended December 31, 2022, had approximately 1,800 employees and generated revenues of approximately Four Hundred Twenty Million Dollars ($420,000,000);
WHEREAS, the Parties desire to explore and evaluate a potential business relationship involving managed network services and technology licensing (the "Purpose"), and in connection therewith, each Party may disclose to the other certain confidential and proprietary information that each Party considers to be of significant commercial value;
WHEREAS, the Parties wish to establish the terms and conditions under which such Confidential Information (as defined below) will be disclosed, received, used, and protected;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1 — DEFINITIONS
1.1 "Confidential Information." As used in this Agreement, "Confidential Information" means all non-public, proprietary, or confidential information disclosed by either Party (in such capacity, the "Disclosing Party") to the other Party (in such capacity, the "Receiving Party"), whether in written, oral, electronic, visual, or other form, that is designated as confidential at the time of disclosure or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be understood to be confidential. Without limiting the generality of the foregoing, Confidential Information includes:
(a) business plans, corporate strategies, market analyses, financial information (including revenue data, budgets, forecasts, and projections), pricing models, customer lists, customer data, vendor relationships, procurement terms, and supply chain information;
(b) technical data, trade secrets, know-how, inventions (whether or not patentable), designs, algorithms, source code, object code, software architecture, network configurations, platform specifications (including, but not limited to, specifications relating to Cedarpoint's proprietary ArcMesh™ platform), engineering documentation, product roadmaps, and research and development plans;
(c) information relating to managed network services, SD-WAN deployment capabilities, network operations center ("NOC") procedures, service-level performance data, incident response protocols, and cybersecurity monitoring methodologies;
(d) organizational structure, employee information (including compensation data and personnel records), equity ownership structure, capitalization tables, and investor information;
(e) legal and regulatory information, pending or threatened litigation, audit findings, regulatory correspondence, and compliance records; and
(f) any analyses, compilations, studies, notes, summaries, or other documents or materials prepared by the Receiving Party or its Representatives that contain, reflect, or are derived from any of the foregoing (collectively, "Derived Materials").
For the avoidance of doubt, Confidential Information shall include information disclosed orally or visually, provided that the Disclosing Party identifies such information as confidential at the time of disclosure and confirms such designation in writing within ten (10) business days following the date of such oral or visual disclosure.
1.2 "Representatives." As used in this Agreement, "Representatives" means, with respect to each Party, its Affiliates (as defined below), and its and their respective directors, officers, employees, agents, advisors, attorneys, accountants, consultants, and other representatives who have a need to know the Confidential Information for the Purpose and who are bound by obligations of confidentiality no less restrictive than those set forth herein. Without limiting the generality of the foregoing, Representatives specifically includes each Party's outside legal counsel (for Northgate: Calderwood & Harkness LLP; for Cedarpoint: Whitfield Graves & Morrow LLP) and each Party's financial and accounting advisors engaged in connection with the Purpose.
1.3 "Purpose." As used in this Agreement, the "Purpose" means the evaluation and negotiation of a potential Master Services Agreement between the Parties for managed network services, technology licensing, and related professional services across Northgate's North American operations, and any due diligence, technical assessment, commercial analysis, or related activities undertaken in connection therewith.
1.4 "Affiliate." As used in this Agreement, "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For purposes of this definition, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. For the avoidance of doubt, with respect to Northgate, "Affiliate" includes Northgate Telecommunications PLC and each of its direct and indirect subsidiaries. With respect to Cedarpoint, "Affiliate" includes any entity controlled by or under common control with Cedarpoint Systems Integration, Inc.
SECTION 2 — OBLIGATIONS OF CONFIDENTIALITY
2.1 Non-Disclosure and Non-Use. The Receiving Party shall:
(a) hold all Confidential Information of the Disclosing Party in strict confidence and treat such Confidential Information with at least the same degree of care that the Receiving Party uses to protect its own confidential information of a similar nature and importance, but in no event with less than a reasonable degree of care;
(b) not disclose, publish, or otherwise disseminate any Confidential Information of the Disclosing Party to any person or entity other than its Representatives who (i) have a demonstrable need to know such information for the Purpose and (ii) are bound by written obligations of confidentiality and non-use no less restrictive than those set forth in this Agreement;
(c) use the Confidential Information of the Disclosing Party solely for the Purpose and for no other purpose whatsoever, including, without limitation, any competitive purpose, reverse engineering, or product development purpose unrelated to the Purpose; and
(d) take all reasonable measures to prevent the unauthorized disclosure, use, or dissemination of the Disclosing Party's Confidential Information, including implementing appropriate physical, technical, and administrative safeguards.
2.2 Responsibility for Representatives. Each Party shall be responsible for any breach of this Agreement by any of its Representatives. Each Party shall, prior to any disclosure of Confidential Information to any of its Representatives, ensure that such Representatives are informed of the confidential nature of the Confidential Information, the terms and restrictions of this Agreement, and the obligation to treat such information in accordance with the provisions set forth herein. The Receiving Party shall promptly notify the Disclosing Party upon becoming aware of any unauthorized access, use, or disclosure of the Disclosing Party's Confidential Information by any of the Receiving Party's Representatives.
2.3 No Onward Disclosure. The Receiving Party shall not disclose, transfer, or otherwise make available any Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, except as expressly permitted under this Agreement or as required by applicable law, regulation, or legal process in accordance with Section 4 below. Any disclosure to a third party consented to by the Disclosing Party shall be subject to written confidentiality obligations no less restrictive than those contained in this Agreement.
SECTION 3 — EXCLUSIONS FROM CONFIDENTIAL INFORMATION
The obligations set forth in this Agreement shall not apply to any information that the Receiving Party can demonstrate:
(a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement;
(b) was already in the Receiving Party's possession on a non-confidential basis prior to disclosure by the Disclosing Party, as evidenced by the Receiving Party's contemporaneous written records existing prior to the date of such disclosure;
(c) is independently developed by the Receiving Party or its Representatives without reference to, reliance on, or use of any of the Disclosing Party's Confidential Information, as evidenced by the Receiving Party's contemporaneous written records; or
(d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party or its Representatives, provided that such source is not known by the Receiving Party (after reasonable inquiry) to be bound by a confidentiality obligation to the Disclosing Party with respect to such information.
The burden of establishing that any of the foregoing exclusions applies shall rest with the Receiving Party claiming the benefit of such exclusion. A specific item of Confidential Information shall not be deemed to fall within any of the foregoing exclusions merely because it is embraced by more general information in the public domain or in the Receiving Party's possession. Additionally, any combination of features forming part of the Confidential Information shall not be deemed to be within any of the foregoing exclusions merely because individual features are within the public domain or in the Receiving Party's possession, unless the combination itself and its principle of operation are within the public domain or in the Receiving Party's possession.
SECTION 4 — COMPELLED DISCLOSURE
If the Receiving Party or any of its Representatives is required by applicable law, regulation, legal process, or governmental order (including, without limitation, any subpoena, civil investigative demand, interrogatory, request for production, or similar legal or regulatory process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall, to the extent legally permitted:
(a) provide the Disclosing Party with prompt written notice of such requirement (and in any event, no later than five (5) business days after receiving such requirement, or such shorter period as may be required to afford the Disclosing Party a reasonable opportunity to respond) so that the Disclosing Party may seek a protective order, motion to quash, or other appropriate remedy to prevent or limit such disclosure;
(b) reasonably cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in its efforts to obtain such protective order or other remedy; and
(c) disclose only that portion of the Confidential Information that the Receiving Party is advised by its legal counsel is legally required to be disclosed, and shall exercise commercially reasonable efforts to ensure that confidential treatment is accorded to such disclosed Confidential Information by the requesting authority or tribunal.
For the avoidance of doubt, any Confidential Information that is disclosed pursuant to this Section 4 in compliance with the foregoing requirements shall continue to be treated as Confidential Information of the Disclosing Party for all other purposes under this Agreement, and the Receiving Party's obligations under this Agreement with respect to such Confidential Information shall not be deemed waived or otherwise affected by such compelled disclosure.
SECTION 5 — RETURN AND DESTRUCTION OF CONFIDENTIAL INFORMATION
5.1 Return/Destruction Obligation. Upon the written request of the Disclosing Party at any time, or upon the termination or expiration of this Agreement (whichever occurs first), the Receiving Party shall promptly, and in any event within thirty (30) calendar days of such request, termination, or expiration, at the Disclosing Party's sole election:
(a) return to the Disclosing Party all tangible and electronic materials containing or embodying Confidential Information of the Disclosing Party (including all copies, extracts, summaries, and Derived Materials in any form or medium); or
(b) destroy all such materials and all copies thereof and provide the Disclosing Party with a written certification signed by an authorized officer of the Receiving Party confirming that such destruction has been completed in accordance with this Section 5.1.
5.2 Retained Copies Exception. Notwithstanding Section 5.1, the Receiving Party may retain:
(a) one (1) archival copy of the Confidential Information in the files of its legal counsel (whether in-house or outside counsel) solely for the purpose of establishing compliance with the Receiving Party's obligations under this Agreement and for the defense of any claims related thereto; and
(b) copies of Confidential Information that are automatically retained on the Receiving Party's electronic backup, archival, or disaster recovery systems in the ordinary course of the Receiving Party's information technology operations, provided that the Receiving Party shall not intentionally access such retained copies for any purpose other than as permitted by this Agreement.
Any copies of Confidential Information retained pursuant to this Section 5.2 shall remain subject to the confidentiality and non-use obligations of this Agreement for the full duration of the Term and any applicable survival period set forth in Section 8.3.
5.3 Survival of Obligations. The return or destruction of Confidential Information pursuant to Section 5.1 shall not relieve the Receiving Party of any of its obligations under this Agreement with respect to any Confidential Information retained pursuant to Section 5.2, including, without limitation, the obligations of confidentiality, non-disclosure, and non-use set forth in Section 2. Such obligations shall continue in full force and effect in accordance with the terms of this Agreement.
SECTION 6 — NO LICENSE OR OTHER RIGHTS
No disclosure of Confidential Information under this Agreement shall constitute or be deemed to constitute a grant to the Receiving Party of any license, right, title, or interest in or to such Confidential Information or any intellectual property rights of the Disclosing Party, whether by implication, estoppel, or otherwise. All Confidential Information disclosed pursuant to this Agreement shall remain the sole and exclusive property of the Disclosing Party, and the Receiving Party shall acquire no rights therein by virtue of the disclosure or receipt of such Confidential Information.
Nothing in this Agreement shall be construed as obligating either Party to enter into any further agreement of any kind, including, but not limited to, any Master Services Agreement, technology license agreement, joint venture agreement, or other commercial arrangement. Each Party reserves the right, in its sole and absolute discretion, to terminate discussions and negotiations relating to the Purpose at any time and for any reason, without liability to the other Party.
Nothing in this Agreement shall be construed as creating an agency, partnership, joint venture, or employment relationship between the Parties.
SECTION 7 — NO WARRANTY
ALL CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS" BASIS. NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, RELIABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY CONFIDENTIAL INFORMATION DISCLOSED HEREUNDER. Without limiting the generality of the foregoing, neither Party shall have any liability to the other Party arising from or relating to the other Party's use of or reliance upon any Confidential Information, except for the obligations and liabilities expressly set forth in this Agreement.
Each Party acknowledges that the Confidential Information may include projections, estimates, assumptions, and other forward-looking information, and that the Disclosing Party makes no representation or warranty that any such projections, estimates, or assumptions will be achieved, or that the actual results will not materially differ therefrom. The Receiving Party shall be solely responsible for its own evaluation of the Confidential Information and for any decisions or actions taken in reliance thereon.
SECTION 8 — TERM AND TERMINATION
8.1 Term. This Agreement shall become effective as of the Effective Date and shall remain in full force and effect for a period of three (3) years from the Effective Date (i.e., until February 22, 2026), unless earlier terminated in accordance with Section 8.2 below (the "Term").
8.2 Termination. Either Party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' prior written notice to the other Party, delivered in accordance with Section 12 of this Agreement. Termination of this Agreement shall not affect either Party's obligations with respect to Confidential Information disclosed prior to the effective date of such termination.
8.3 Survival. The obligations of confidentiality, non-disclosure, and non-use set forth in this Agreement, including, without limitation, those obligations set forth in Sections 2, 3, 4, 5, 6, 7, 9, 10, and 11, shall survive the termination or expiration of this Agreement for a period of three (3) years following the date of such termination or expiration. Notwithstanding the foregoing, the Receiving Party's obligations with respect to any Confidential Information that constitutes a trade secret under applicable law (including the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836 et seq., and the Uniform Trade Secrets Act as adopted in any applicable jurisdiction) shall survive for so long as such information continues to qualify as a trade secret under applicable law.
SECTION 9 — REMEDIES
9.1 Equitable Relief. Each Party acknowledges and agrees that any breach or threatened breach of this Agreement by the Receiving Party or its Representatives may cause irreparable harm to the Disclosing Party for which monetary damages alone would be an inadequate and insufficient remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek immediate injunctive relief, specific performance, or other equitable relief from any court of competent jurisdiction to prevent or restrain any such breach or threatened breach of this Agreement, without the necessity of proving actual damages, posting any bond, or furnishing any other security. The Receiving Party hereby waives any requirement for the securing or posting of any bond or other security in connection with any application for such equitable relief.
9.2 Cumulative Remedies. The rights and remedies set forth in this Agreement, including, without limitation, the right to seek equitable relief under Section 9.1, are cumulative and shall be in addition to, and not in lieu of, any other rights and remedies available to the Disclosing Party at law, in equity, or under any other agreement between the Parties. The exercise of any one remedy by the Disclosing Party shall not preclude the exercise of any other remedy.
SECTION 10 — NON-SOLICITATION
During the Term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither Party shall, directly or indirectly, solicit for employment, engage as an independent contractor, or hire any employee of the other Party (or any employee of the other Party's Affiliates) with whom such Party has had contact in connection with the Purpose or who has been identified through the exchange of Confidential Information, without the prior written consent of the other Party. The foregoing restriction shall not apply to:
(a) general solicitations of employment published in newspapers, trade journals, industry publications, job boards, or other media of general circulation, or through recruiting agencies, in each case not specifically directed at the employees of the other Party or its Affiliates; or
(b) any individual who has ceased to be employed by the other Party or its Affiliates for a period of at least six (6) months prior to the date of any solicitation or hiring.
SECTION 11 — STANDSTILL
During the Term of this Agreement and for a period of twelve (12) months following its termination or expiration, neither Party shall, directly or indirectly, use any Confidential Information obtained pursuant to this Agreement to acquire or attempt to acquire, by purchase, tender offer, exchange offer, merger, consolidation, business combination, or otherwise, any securities (including equity or debt securities), assets, or business of the other Party or any of its Affiliates, except as expressly contemplated by any definitive agreement entered into between the Parties in connection with the Purpose. This Section 11 shall not restrict either Party from acquiring securities of the other Party or its Affiliates in the open market so long as such acquisition does not result in the acquiring Party owning, in the aggregate, more than one percent (1%) of the outstanding securities of any class of the other Party or its publicly traded Affiliates, and so long as such acquisition is not made with the intent to, or for the purpose of, influencing the management or policies of such entity.
SECTION 12 — NOTICES
All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective: (i) upon delivery, if delivered by hand; (ii) one (1) business day after deposit with a nationally recognized overnight courier service, prepaid for next-business-day delivery; or (iii) three (3) business days after being sent by certified or registered mail, return receipt requested, postage prepaid, in each case addressed to the applicable Party at the address set forth below (or to such other address as such Party may designate by written notice to the other Party from time to time):
If to Northgate Americas, Inc.:
Northgate Americas, Inc. 1700 Market Street, Suite 2400 Philadelphia, Pennsylvania 19103
Attention: Deirdre Kwan, Vice President of Procurement, North America
With a copy (which shall not constitute notice) to:
Marcus Harcourt, General Counsel Northgate Telecommunications PLC 45 Threadneedle Court London EC2R 8AH United Kingdom
If to Cedarpoint Systems Integration, Inc.:
Cedarpoint Systems Integration, Inc. 11400 Commerce Park Drive, Suite 600 Reston, Virginia 20191
Attention: Nadia Okafor, General Counsel
Either Party may change its address for purposes of notices under this Agreement by providing written notice of such change to the other Party in accordance with this Section 12.
SECTION 13 — GENERAL PROVISIONS
13.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law principles that would result in the application of the laws of any other jurisdiction. Each Party acknowledges that this Agreement was negotiated at arm's length and that the choice of New York law reflects the mutual agreement of the Parties following good-faith negotiation.
13.2 Jurisdiction and Venue. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction and venue of the state and federal courts located in the Borough of Manhattan, City of New York, State of New York, for the resolution of any disputes, claims, or controversies arising out of, relating to, or in connection with this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof. Each Party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in any such court, and irrevocably waives any claim that any such proceeding brought in any such court has been brought in an inconvenient forum.
13.3 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations, warranties, understandings, commitments, offers, and other agreements (whether written or oral) between the Parties relating to the subject matter hereof. Notwithstanding the foregoing, the Parties acknowledge and agree that this Agreement may be superseded in whole or in part by confidentiality provisions contained in any subsequent definitive agreement between the Parties, including, without limitation, any Master Services Agreement (as may ultimately be incorporated in any such Master Services Agreement as Section 12 or otherwise).
13.4 Amendment and Waiver. No amendment, modification, or supplement to this Agreement shall be effective or binding unless made in writing and signed by a duly authorized representative of each Party. No failure or delay by either Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement or at law or in equity.
13.5 Assignment. Neither Party may assign, transfer, delegate, or otherwise dispose of this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may, without the consent of the other Party, assign this Agreement to (a) an Affiliate, or (b) a successor entity in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets, in each case provided that the assignee expressly assumes all of the assigning Party's obligations under this Agreement in writing. Any purported assignment in violation of this Section 13.5 shall be null, void, and of no force or effect.
13.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been included herein. The Parties shall negotiate in good faith to replace any such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid, illegal, or unenforceable provision.
13.7 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. Signatures transmitted by facsimile, portable document format (PDF), or other electronic means (including any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act as adopted in any applicable jurisdiction) shall be deemed original signatures for all purposes and shall be sufficient to bind the Parties.
13.8 Construction. The headings and captions used in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement. The terms "include," "includes," and "including" as used in this Agreement shall be deemed to be followed by the phrase "without limitation." Unless the context otherwise requires, (a) all references to Sections are to Sections of this Agreement, (b) words in the singular include the plural and vice versa, and (c) the words "herein," "hereof," "hereunder," and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement. This Agreement has been negotiated by the Parties and their respective counsel, and no provision shall be construed against any Party on the ground that such Party drafted or proposed such provision.
[Signature Page Follows]
SIGNATURE PAGE TO MUTUAL NON-DISCLOSURE AGREEMENT
IN WITNESS WHEREOF, each of the undersigned Parties has caused this Mutual Non-Disclosure Agreement to be executed by its duly authorized representative as of the Effective Date first written above.
NORTHGATE AMERICAS, INC.
By: ________
Name: Warren Liang
Title: President
Date: February 22, 2023
CEDARPOINT SYSTEMS INTEGRATION, INC.
By: ________
Name: Rajiv Sundaram
Title: Chief Executive Officer
Date: February 22, 2023

MUTUAL NON-DISCLOSURE AGREEMENT

RECITALS

SIGNATURE PAGE TO MUTUAL NON-DISCLOSURE AGREEMENT

NORTHGATE AMERICAS, INC.

CEDARPOINT SYSTEMS INTEGRATION, INC.

Record

Parties

Dates

Amounts