From ca2d31c4998548a6d324f9be93c65d1d1023e3a2 Mon Sep 17 00:00:00 2001 From: Szymon Date: Thu, 5 May 2022 17:33:36 +0200 Subject: [PATCH] add dates --- dev-0/in.tsv | 2 +- dev-0/out.tsv | 166 ++++++++-------- run.py | 16 +- test-A/out.tsv | 406 +++++++++++++++++++-------------------- train/out.tsv | 508 ++++++++++++++++++++++++------------------------- 5 files changed, 556 insertions(+), 542 deletions(-) diff --git a/dev-0/in.tsv b/dev-0/in.tsv index 9fd9bfc..9de9fb4 100644 --- a/dev-0/in.tsv +++ b/dev-0/in.tsv @@ -1,4 +1,4 @@ -073f3b9eb0c7088be4ef688f4edfdb6d.pdf effective_date jurisdiction party term EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\n>\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39t Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\n \n \n \nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1. CERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser’s business; Discloser’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n \n2. RESTRICTIONS ON DISCLOSURE AND USE.\n(a) Restrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser’s Confidential Information, and will take reasonable precautions to protect the Discloser’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b) Disclosure to Representatives. The Recipient may only disseminate the Discloser’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(©) General Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n@) that was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii) that becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii) that is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n@iv) that is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\nV) other than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi) as to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d) To the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC™), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n \n3. TERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4. ADDITIONAL COVENANTS AND AGREEMENTS.\n(@) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n€3] Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(8) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n \n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n@) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(G) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc. Visser Precision Cast, LLC\n/s/ Tom Steipp /s/ Gregory A. Ruegsegger\nTom Steipp By: Gregory A. Ruegsegger\nTitle: President/CEO Title: Vice President\nDate: May 20, 2014 Date: May 20, 2014\nAddress: Address:\n30452 Esperanza 6275 E. 39th Street\nRancho Santa Margarita, CA 92688 Denver, CO 80207 EX-10 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into\nas\neffective of May 20, 2014 (the "Revised Effective Date"), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates\nor\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively "Liquidmetal"), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39th Street, Denver, CO 80207 ("VPC"). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release ("Settlement Agreement"), Amended and Restated VPC Sublicense\nAgreement ("Sublicense"), Amended and Restated Common Stock Purchase Warrant ("Warrant"), and Amended and Restated Registration\nRights Agreement ("Rights Agreement"), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n"Party." and together as the "Parties."\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the "Original Agreement") dated\nJune 1, 2012 (the "Original Effective Date"); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the "Revised Transaction Documents"); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n"Affiliate" shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm "Affiliate" includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n"Confidential Information" shall mean any and all nonpublic information concerning or arising from Discloser's or its Affiliates' business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser's operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser's business; Discloser's business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser's business; the details of Discloser's relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser's business; the nature and content of computer software or\ntechnologies used in Discloser's business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser's\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser's concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. "Confidential Information" also includes (i) any information described above which the Discloser obtains from\na\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser's Confidential Information is\ndescribed or discussed.\n"Discloser" shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n"Recipient" shall mean the Party receiving Confidentia Information that is protected under this Agreement.\n"Representatives" shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party's Confidentia\nInformation, it will (i) hold the Discloser's Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser's Confidential Information, and will take reasonable precautions to protect the Discloser's Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser's\nConfidential\nInformation\nor\nany\ninformation\nderived\ntherefrom\n(including\nresults\nof\ntests\non\nmateria\nsamples)\nto\nany\nother\nperson\nor\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser's Confidential Information for any purpose whatsoever other than\nas\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser's\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser's Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient's legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby\nLiquidmetal)\nfor\narchival\npurposes.\nExcept\nas\nexpressly\npermitted\nby\nthe\nRevised\nTransaction\nDocuments,\nRecipient\nwill\nnot\nfile\nany\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser's Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser's Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser's Confidential Information to its\nRepresentatives who have been informed of the Recipient's obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser's Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser's\nConfidential Information to the smallest number of the Recipient's Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient's Representatives and shall take such action (legal\nor\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser's Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient's written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the "SEC"), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany\ntermination\nor\nexpiration\nunder\nthis\nSection\n3\nshall\nsurvive\nsuch\ntermination\nor\nexpiration\nfor\nthe\nduration\nof\nany\napplicable\nstatute\nof\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided "AS IS", without warranty or guarantee of any kind as to its accuracy, completeness,\noperability,\nfitness\nfor\na\nparticular\npurpose,\nor\nany\nother\nwarranty,\nexpress\nor\nimplied.\nExcept\nas\nexpressly\nset\nforth\nin\nthe\nRevised\nTransaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d)\nEnforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys' fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party's rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f)\nNotices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically\nto\nthis\nAgreement,\nand\nshall\nbe\ndelivered\nin\nperson,\nor\nsent\nby\nelectronic\nor\nfacsimile\ntransmission\nfor\nwhich\na\nconfirmation\nof\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party's\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party's prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties' successors and assigns.\n3\n(h)\nSeverability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser's rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser's rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j)\nEntire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels' assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 +073f3b9eb0c7088be4ef688f4edfdb6d.pdf effective_date jurisdiction party term EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself afznd its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\n>\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39t Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\n \n \n \nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1. CERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser’s business; Discloser’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n \n2. RESTRICTIONS ON DISCLOSURE AND USE.\n(a) Restrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser’s Confidential Information, and will take reasonable precautions to protect the Discloser’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b) Disclosure to Representatives. The Recipient may only disseminate the Discloser’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(©) General Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n@) that was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii) that becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii) that is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n@iv) that is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\nV) other than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi) as to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d) To the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC™), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n \n3. TERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4. ADDITIONAL COVENANTS AND AGREEMENTS.\n(@) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n€3] Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(8) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n \n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n@) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(G) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc. Visser Precision Cast, LLC\n/s/ Tom Steipp /s/ Gregory A. Ruegsegger\nTom Steipp By: Gregory A. Ruegsegger\nTitle: President/CEO Title: Vice President\nDate: May 20, 2014 Date: May 20, 2014\nAddress: Address:\n30452 Esperanza 6275 E. 39th Street\nRancho Santa Margarita, CA 92688 Denver, CO 80207 EX-10 ex10-4.htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this "Agreement") is made and entered into\nas\neffective of May 20, 2014 (the "Revised Effective Date"), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates\nor\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively "Liquidmetal"), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39th Street, Denver, CO 80207 ("VPC"). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release ("Settlement Agreement"), Amended and Restated VPC Sublicense\nAgreement ("Sublicense"), Amended and Restated Common Stock Purchase Warrant ("Warrant"), and Amended and Restated Registration\nRights Agreement ("Rights Agreement"), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n"Party." and together as the "Parties."\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the "Original Agreement") dated\nJune 1, 2012 (the "Original Effective Date"); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the "Revised Transaction Documents"); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n"Affiliate" shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm "Affiliate" includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n"Confidential Information" shall mean any and all nonpublic information concerning or arising from Discloser's or its Affiliates' business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser's operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser's business; Discloser's business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser's business; the details of Discloser's relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser's business; the nature and content of computer software or\ntechnologies used in Discloser's business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser's\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser's concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. "Confidential Information" also includes (i) any information described above which the Discloser obtains from\na\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser's Confidential Information is\ndescribed or discussed.\n"Discloser" shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n"Recipient" shall mean the Party receiving Confidentia Information that is protected under this Agreement.\n"Representatives" shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party's Confidentia\nInformation, it will (i) hold the Discloser's Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser's Confidential Information, and will take reasonable precautions to protect the Discloser's Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser's\nConfidential\nInformation\nor\nany\ninformation\nderived\ntherefrom\n(including\nresults\nof\ntests\non\nmateria\nsamples)\nto\nany\nother\nperson\nor\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser's Confidential Information for any purpose whatsoever other than\nas\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser's\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser's Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient's legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby\nLiquidmetal)\nfor\narchival\npurposes.\nExcept\nas\nexpressly\npermitted\nby\nthe\nRevised\nTransaction\nDocuments,\nRecipient\nwill\nnot\nfile\nany\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser's Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser's Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser's Confidential Information to its\nRepresentatives who have been informed of the Recipient's obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser's Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser's\nConfidential Information to the smallest number of the Recipient's Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient's Representatives and shall take such action (legal\nor\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser's Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient's written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the "SEC"), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany\ntermination\nor\nexpiration\nunder\nthis\nSection\n3\nshall\nsurvive\nsuch\ntermination\nor\nexpiration\nfor\nthe\nduration\nof\nany\napplicable\nstatute\nof\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided "AS IS", without warranty or guarantee of any kind as to its accuracy, completeness,\noperability,\nfitness\nfor\na\nparticular\npurpose,\nor\nany\nother\nwarranty,\nexpress\nor\nimplied.\nExcept\nas\nexpressly\nset\nforth\nin\nthe\nRevised\nTransaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d)\nEnforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys' fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party's rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f)\nNotices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically\nto\nthis\nAgreement,\nand\nshall\nbe\ndelivered\nin\nperson,\nor\nsent\nby\nelectronic\nor\nfacsimile\ntransmission\nfor\nwhich\na\nconfirmation\nof\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party's\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g) No Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party's prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties' successors and assigns.\n3\n(h)\nSeverability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser's rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser's rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j)\nEntire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(1) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels' assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 EX-10 5 ex10-4 .htm EXHIBIT 10.4\nExhibit 10.4\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nTHIS AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT (this “Agreement”) is made and entered into\nas effective of May 20, 2014 (the “Revised Effective Date”), by and between LIQUIDMETAL TECHNOLOGIES, INC., a Delaware\ncorporation having its principal place of business at 30452 Esperanza, Rancho Santa Margarita, CA 92688, on behalf of itself and its affiliates or\nsubsidiaries other than Crucible Intellectual Property, LLC (collectively “Liquidmetal”), and VISSER PRECISION CAST, LLC, a Colorado\nlimited liability company having its principal place of business at 6275 E 39 Street, Denver, CO 80207 (“VPC”). Liquidmetal and VPC are\nparties to that certain Settlement Agreement and Mutual General Release (“Settlement Agreement”), Amended and Restated VPC Sublicense\nAgreement (“Sublicense”), Amended and Restated Common Stock Purchase Warrant (“Warrant”), and Amended and Restated Registration\nRights Agreement (“Rights Agreement”), each dated as of May 20, 2014. Liquidmetal and VPC are hereinafter referred to individually as a\n“Party” and together as the “Parties.”\nWHEREAS, Liquidmetal and VPC are parties to that certain Mutual Non-Disclosure Agreement (the “Original Agreement”) dated\nJune 1, 2012 (the “Original Effective Date”); and\nWHEREAS, the Parties have entered into the Settlement Agreement, the Sublicense, the Warrant and the Rights Agreement (such\nAgreements, together with this Agreement, collectively the “Revised Transaction Documents”); and\nWHEREAS, during the course of their business relationship, both prior to the Original Effective Date and thereafter, each Party has\nhad and may in the future have access to Confidential Information (as defined below) of the other Party,\nNOW, THEREFORE, in consideration of the foregoing recital and the covenants, terms, and conditions set forth below, the Parties\nhereby agree as follows:\n1.\nCERTAIN DEFINITIONS.\n“Affiliate” shall mean, with respect to a Party, any other entity that controls, is controlled by, or is under common control with such Party. The\nterm “Affiliate” includes, without limitation, all subsidiaries, parent companies, partnerships, and joint ventures of the specified Party.\n“Confidential Information” shall mean any and all nonpublic information concerning or arising from Discloser’s or its Affiliates’ business,\nwhether disclosed prior to or after the Original Effective Date or the Revised Effective Date, and including particularly, but not by way of\nlimitation, trade secrets used, developed or acquired by Discloser in connection with its business; information concerning the manner and details\nof Discloser’s operation, organization and management; financial information and/or documents and nonpublic policies, procedures and other\nprinted or written material generated or used in connection with Discloser ’s business; Discloser ’s business plans and strategies; the identities of\ndistributors, contractors and vendors utilized in Discloser’s business; the details of Discloser ’s relationship with such distributors, contractors\nand vendors; nonpublic forms, contracts and other documents used in Discloser’s business; the nature and content of computer software or\ntechnologies used in Discloser’s business, whether proprietary to Discloser or used by Discloser under license from a third party; Discloser’s\ninventions, trade secrets, know-how, products or processes in development, engineering, methodologies, concepts, techniques, discoveries,\nprocesses, drawings, designs, research, and plans or specifications relating thereto; and all other information concerning Discloser’s concepts,\nprospects, customers, employees, contractors, earnings, products, services, equipment, systems, and/or prospective and executed contracts and\nother business arrangements. “Confidential Information” also includes (i) any information described above which the Discloser obtains from a\nthird party and which the Discloser treats as proprietary or designates as confidential, whether or not owned or developed by the Discloser, and\n(ii) any reports, analysis, compilations, or other documents prepared by Recipient in which any of Discloser’s Confidential Information is\ndescribed or discussed.\n“Discloser” shall mean the Party that is disclosing Confidential Information under this Agreement, regardless of whether such Confidential\nInformation is being provided directly by such Party, by a Representative of the Party, or by any other person or entity that has an obligation of\nconfidentiality with respect to the Confidential Information being disclosed.\n“Recipient” shall mean the Party receiving Confidential Information that is protected under this Agreement.\n“Representatives” shall consist of the directors, officers, employees, financial advisors, accountants, attorneys, consultants, insurers and\nAffiliates of the applicable Party.\n1\nth\n2.\nRESTRICTIONS ON DISCLOSURE AND USE.\n(a)\nRestrictions and Covenants. Each Party agrees that, in its capacity as a Recipient of the other Party’s Confidential\nInformation, it will (i) hold the Discloser’s Confidential Information in strict confidence, use a high degree of care in safeguarding the\nDiscloser ’s Confidential Information, and will take reasonable precautions to protect the Discloser ’s Confidential Information including, at a\nminimum, all precautions the Recipient normally employs with respect to its own confidential information, (ii) not divulge any of the\nDiscloser ’s Confidential Information or any information derived therefrom (including results of tests on material samples) to any other person or\nentity (except as set forth in Section 2(b) below), (iii) not use the Discloser’s Confidential Information for any purpose whatsoever other than as\nmay be directly in furtherance of the purposes of one or more of the Revised Transaction Documents, (iv) not export the Discloser ’s\nConfidential Information in violation of the United States Export Administration Act and regulations thereunder, or any other applicable export\ncontrol laws or regulations, (v) notify the Discloser in writing immediately upon discovery by the Recipient or its Representatives of any\nunauthorized use or disclosure of the Discloser’s Confidential Information, and (vi) upon termination or expiration of the applicable Revised\nTransaction Document, return to the Discloser or destroy (at the option of the Recipient) all such Confidential Information disclosed thereunder,\nincluding all originals, copies and extracts, provided that the Recipient may retain any information to which it has a continuing license for use,\nand provided further that Recipient’s legal counsel may retain one copy of the returned or destroyed items (excluding material samples provided\nby Liquidmetal) for archival purposes. Except as expressly permitted by the Revised Transaction Documents, Recipient will not file any\ncopyright registrations, patent applications, or similar registrations of ownership on Discloser’s Confidential Information or on any invention,\ntechnology, development, or information that utilizes or incorporates Discloser ’s Confidential Information, and in the event that Recipient does\nso in violation of this Agreement, Recipient will assign to Discloser such registrations or applications.\n(b)\nDisclosure to Representatives. The Recipient may only disseminate the Discloser ’s Confidential Information to its\nRepresentatives who have been informed of the Recipient’s obligations under this Agreement and are bound by an obligation of confidentiality\nand non-use with respect to the Discloser’s Confidential Information. The Recipient agrees to reasonably restrict disclosure of the Discloser’s\nConfidential Information to the smallest number of the Recipient’s Representatives which have a need to know the Confidential Information.\nThe Recipient shall be responsible for enforcing this Agreement as to the Recipient’s Representatives and shall take such action (legal or\notherwise) to the extent necessary to cause them to comply with this Agreement.\n(c)\nGeneral Exceptions. The restrictions on the Recipient's disclosure and use of the Discloser’s Confidential Information under\nthis Section 2 will not apply to the extent of any Confidential Information:\n(i)\nthat was already rightfully known by the Recipient prior to the disclosure as evidenced by the Recipient’s written\ndocumentation;\n(ii)\nthat becomes publicly known without breach of the Recipient's obligations under this Agreement;\n(iii)\nthat is rightfully acquired by the Recipient from a third party which is not subject to any restriction or obligation (whether\ncontractual, fiduciary, or otherwise) on disclosure or use of such Confidential Information;\n(iv)\nthat is independently developed by the Recipient or its Representatives without knowledge or reference to such information, as\nevidenced by written documentation or other tangible evidence;\n(v)\nother than as set forth in Section 2(d) below, that is required to be disclosed by law or by court order or government order,\nprovided that the Recipient (a) promptly notifies the Discloser of any such disclosure requirement so that the Discloser may\nseek an appropriate protective order (or other appropriate protections), and (b) provides reasonable assistance (at no cost to the\nRecipient) in obtaining such protective order or other form of protection; or\n(vi)\nas to which and to the extent to which (A) the Recipient has been authorized to disclose or use pursuant to one of the Revised\nTransaction Documents; or (B) the Recipient has otherwise received prior express written consent from an authorized officer\nof the Discloser to disclose or use.\n(d)\nTo the extent that a Party is a publicly-traded company, and subject to laws and regulations requiring disclosure of the\nRevised Transaction Documents to the U.S. Securities and Exchange Commission (the “SEC”), such Party shall (i) seek confidential treatment\nfor any Revised Transaction Document disclosed to or filed with the SEC, or (ii) redact the financial terms from any Revised Transaction\nDocument disclosed to or filed with the SEC. A specific item of Confidential Information shall not be deemed to fall within the foregoing\nexceptions in Section 2(c) merely because such specific item is embraced or implied by more general information that falls within the foregoing\nexceptions.\n2\n3.\nTERM AND TERMINATION\nThe obligations of the Parties under this Agreement shall survive for a period of three (3) years from the termination or expiration of\nthe last of the Revised Transaction Documents to terminate or expire; provided that this Agreement shall continue in full force and effect with\nrespect to any Confidential Information that constitutes a trade secret under applicable law for such additional period as such Confidential\nInformation remains a trade secret under such applicable law. All rights and actions of a Disclosing Party accrued prior to the applicable date of\nany termination or expiration under this Section 3 shall survive such termination or expiration for the duration of any applicable statute of\nlimitations. For clarity, this Agreement shall apply as well with respect to Confidential Information disclosed pursuant to or otherwise covered\nby the Original Agreement.\n4.\nADDITIONAL COVENANTS AND AGREEMENTS.\n(a) No Obligation to Disclose; No Warranty. No provision of this Agreement shall be construed as an obligation by either Party to\ndisclose any Confidential Information to the other Party. Except as expressly set forth in the Revised Transaction Documents, all Confidential\nInformation, including material samples, are provided “AS IS”, without warranty or guarantee of any kind as to its accuracy, completeness,\noperability, fitness for a particular purpose, or any other warranty, express or implied. Except as expressly set forth in the Revised Transaction\nDocuments, or with respect to a breach of a Revised Transaction Document, neither Party shall be liable to the other for any damages, loss,\nexpense, or claim of loss arising from use or reliance on the Confidential Information of the other Party.\n(b) No License Implied. Each Party acknowledges and agrees that except as otherwise expressly set forth in the Revised Transaction\nDocuments, all Confidential Information (and any proprietary and novel features contained in the Confidential Information) shall remain the\nproperty of the Discloser and, except as otherwise expressly set forth in the Revised Transaction Documents, no license or right with respect\nthereto is granted to the Recipient, whether by implication or otherwise. Except as otherwise expressly set forth in the Revised Transaction\nDocuments, the Recipient shall have no rights whatsoever under any patent, trademark, copyright, or application therefor, or any other\nproprietary right of the Discloser, and the Recipient agrees that the Discloser shall remain free to grant such rights to others and to disclose the\nConfidential Information to anyone the Discloser chooses.\n(c) Third-Party Information. The Parties hereby state that they do not desire to acquire from each other, and they hereby agree not to\nfurnish to one another, any trade secret, proprietary know-how, or confidential information acquired from third parties (unless the third party\nprovides prior written consent to such disclosure). Further, each Party represents and warrants to the other that it is free to divulge, without any\nobligation to or violation of the rights of any third party, any and all information which it will demonstrate, divulge, or in any other manner\nmake known to the other in connection with this Agreement.\n(d) Enforcement. Each Party acknowledges and agrees that that any breach of this Agreement by it may cause irreparable harm to\nthe other Party and that the remedies for breach may include injunctive relief against such breach, in addition to damages and other available\nremedies. Except for an action for injunctive relief, disputes arising under this Agreement shall be resolved pursuant to Section 15 of the\nSettlement Agreement and Mutual General Release executed by and between the Parties on or about the Revised Effective Date. The prevailing\nParty shall be entitled to the award of its reasonable attorneys’ fees in any action to enforce this Agreement, to the extent such fees were\nincurred to enforce such Party’s rights under this Agreement.\n(e) Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, other\nthan such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of New York.\n(f) Notices. All notices from one Party to the other required or permitted under this Agreement shall be in writing, shall refer\nspecifically to this Agreement, and shall be delivered in person, or sent by electronic or facsimile transmission for which a confirmation of\ndelivery is obtained, or sent by registered mail or express courier services providing evidence of delivery, in each case to the recipient Party’s\nrespective address set forth on the signature page hereof (or to such updated address as may be specified in writing to the other Party from time\nto time). Such notices will be deemed effective as of the date so delivered or on the third business day following mailing if sent by registered\nmail.\n(g)\nNo Assignment. Neither Party shall assign, transfer, subcontract or otherwise delegate any of its obligations under this\nAgreement without the other Party’s prior written consent in each instance other than as a part of any merger, consolidation, or other statutory\nbusiness combination or as a part of the sale of all or substantially all of their assets. Any attempted assignment, transfer, subcontracting or other\ndelegation without such consent shall be void and shall constitute a breach of this Agreement. Subject to the foregoing, this Agreement shall\ninure to the benefit of the Parties’ successors and assigns.\n3\n(h) Severability. If a specific provision of this Agreement is determined to be invalid or unenforceable for any reason, the specific\nprovision shall be interpreted to call for the protection of the Discloser’s rights to the greatest extent which is valid and enforceable. In the event\nthat a specific provision of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction and the provision\ncannot be, or the court otherwise declines to permit the provision to be interpreted to call for protection of the Discloser ’s rights to an extent\nwhich is valid and enforceable, the remainder of this Agreement and application of such provision to other persons or circumstances shall be\ninterpreted so as best to reasonably effect the intent of the Parties hereto. The Parties further agree to replace such void or unenforceable\nprovision with a provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable\nprovision.\n(i) Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or\npartnership between the Parties. No Party shall have the power to control the activities and operations of another, and their status is, and at all\ntimes will continue to be, that of independent contractors with respect to each other. No Party shall hold itself out as having any authority or\nrelationship in contravention of this Section, and except as specifically called for or permitted herein, no Party shall act on behalf of another\nParty or enter into any contracts, warranty, or representation as to any other matter on the behalf of another Party.\n(j) Entire Agreement; Amendment; Waiver. This Agreement, together with the Revised Transaction Documents, constitutes the\nentire agreement between the Parties relating to the subject matter hereof and supersedes and cancels all other prior agreements and\nunderstandings of the Parties in connection with such subject matter. The headings or titles in this Agreement are for purposes of reference only\nand shall not in any way affect the interpretation or construction of this Agreement. No waiver of any of the provisions of this Agreement shall\nbe valid unless in a written document, signed by the Party against whom such a waiver is sought to be enforced, nor shall failure to enforce any\nright hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. All amendments of this Agreement shall be\nmade in writing and signed by the Parties, and no oral amendments shall be binding on the Parties.\n(k) Execution; Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of\nwhich together will constitute the same agreement. The Parties agree that this Agreement may be executed by each Party signing one original\nand providing a facsimile (fax) copy, or scanned copy by .pdf, of the signature page to the other Party, provided that each Party agrees to make\nits document with the original signature available to the other Party upon request, and further provided that the Parties agree that the fax or\nscanned signature shall be treated as if it were an original signature, and neither Party shall contest the validity of this Agreement based on the\nuse of fax or scanned signatures.\n(l) Interpretation. The Parties have each been represented by counsel in the negotiation of this Agreement and have jointly prepared\nthis Agreement with counsels’ assistance. In the event of an ambiguity or a question of contract interpretation arises, no provision of this\nAgreement shall be construed based on any particular Party having drafted the Agreement or such provision. Further, neither the history of\nnegotiations between the parties, nor the fact that provisions of this Agreement (or portions thereof) have been inserted, deleted or modified in\nthe course of preparing Agreement drafts, shall be used to construe the meaning of any provision.\nIN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed effective as of the Revised Effective Date, by their\nofficers, duly authorized.\nLiquidmetal Technology, Inc.\nVisser Precision Cast, LLC\n/s/ Tom Steipp\n/s/ Gregory A. Ruegsegger\nTom Steipp\nBy: Gregory A. Ruegsegger\nTitle: President/CEO\nTitle: Vice President\nDate: May 20, 2014\nDate: May 20, 2014\nAddress:\nAddress:\n30452 Esperanza\n6275 E. 39th Street\nRancho Santa Margarita, CA 92688\nDenver, CO 80207\n4 0d3f3a02773949e285cfc3ad2fe4dbf5.pdf effective_date jurisdiction party term Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 Exhibit I.-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [ ] and is between [ ,a corporation] [[ ], an employee\nof 1(26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1. Recipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2. @) In order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b) The Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender’s Engineer’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use second bracketed\noption.\nExhibit L-2 - Page 1\n \n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor™ System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM™M Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM™ Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\n \nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2 - Page 2\n \nviil. each monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiil. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 - Page 3\n \nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nXVil. any notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nXViii. any notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n \n(0 Notwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d) To the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3. In connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose™):\nA. Recipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB. Recipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC. Recipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 - Page 5\n \n)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than: @)\n(a) individuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b) individuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(0 with respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d) as required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall reasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor, or Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information. ©)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties if such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose export or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or more of the U.S. Government export control laws Exhibit L-2 - Page 6\n \nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4. OPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5. Recipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6. Recipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7. OPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2 - Page 7\n \nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8. If Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\n \nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9. Recipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10. This Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\n \nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10\n Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER'S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this "Agreement") is dated a\n1 and is between\ncorporation] [[\n], an employee\nof\n1(26) ("Recipient") and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia ("OPC"). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice ("DOE"), under Contract No. DE-DT002463 (the "Contract"), in connection with (a) DOE's negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company ("GPC"), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a "DOE Borrower") pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the "Project") and (b) the related due\ndiligence (each such guarantee, a "DOE Loan Guarantee"; such loan guarantee agreements collectively, the "DOE Loan Guarantee\nAgreements").\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC ("Westinghouse") and Stone & Webster, Inc. ("Stone & Webster"), that may be\ncontained in the materials described in Article 2(b) hereof (the "Documents"), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, "Confidential Information" means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, "Publicly Disclosed Information" means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni.\nthe Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the "Owners"), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender's Engineer's NDA, use first bracketed option; for each individual Lender's Engineer employee's NDA, use\nsecond bracketed\noption.\nExhibit L-2 Page 1\n(collectively, the "Contractor"), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the "EPC\nAgreement");\nii.\nan executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the "Software License") attached as\nExhibit M to the EPC Agreement;\nV. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the "Operator"), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n"Fuel Fabrication Agreement"); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a "Fuel Supply.\nAgreement"); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the "License Agreement"); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear Direct Margin MonitorTM System and its related deliverables to be used in the\noperation of the Project (the BEACON-DMMTM Soft Software") is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMMTM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the "BEACON Software Agreement");\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission ("GeorgiaPs PSC");\nExhibit L-2 - Page 2\nviii.\neach monthly project report delivered by the Operator to the cO-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nX.\na copy of the written materials delivered by GPC, as agent for the cO-owners of Vogtle Units 3 & 4, to the cO-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a "DOE Borrower") or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR S 50.54(f) or 10 CFR S\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2 Page 3\nXV. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nXX. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor's affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2 - Page 4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as\na\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation\ndocumentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient's participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the "Purpose"):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C.\nExhibit L-2 Page 5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient's organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient's performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States' government in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States' government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers' DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidentia Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g.,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2 - Page 6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n"Protected Person" of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S. Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient's publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient's actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient's services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient's review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: "This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers." No such summary, note or analysis, nor\nExhibit L-2 Page 7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient's receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2 - Page 8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: (en.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2 - Page 9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 Exhibit L-2\nto Amended and Restated Loan Guarantee Agreement\nFORM OF NONDISCLOSURE AGREEMENT FOR LENDER’S ENGINEER\n[FORM OF] NONDISCLOSURE AGREEMENT\nThis Nondisclosure Agreement (this “Agreement”) is dated [\n] and is between [\n,a\ncorporation] [[\n], an employee\nof\n](26) (“Recipient”) and Oglethorpe Power Corporation (An Electric Membership Corporation), an electric membership corporation\norganized and existing under the laws of Georgia (“OPC”). Capitalized terms used but not otherwise defined in this Agreement have the\nmeanings provided in the EPC Agreement, as defined in Article 2(b)(i) below.\n1.\nRecipient is participating in providing technical advisory and support services to the Department of Energy, Loan Programs\nOffice (“DOE”), under Contract No. DE-DT002463 (the “Contract”), in connection with (a) DOE’s negotiation of certain loan guarantee\nagreements and related financing documents between DOE and each of Georgia Power Company (“GPC”), OPC and/or the Municipal Electric\nAuthority of Georgia or any of its wholly owned subsidiaries (each, a “DOE Borrower”) pursuant to which DOE would guarantee the repayment\nof a loan to such DOE Borrower for the construction, operation and ownership of Vogtle Units 3 and 4 (the “Project”) and (b) the related due\ndiligence (each such guarantee, a “DOE Loan Guarantee”; such loan guarantee agreements collectively, the “DOE Loan Guarantee\nAgreements”).\n2.\n(a)\nIn order to permit Recipient to review Confidential Information (as hereinafter defined) of OPC and/or its Contractor,\na consortium composed of Westinghouse Electric Company, LLC (“Westinghouse”) and Stone & Webster, Inc. (“Stone & Webster”), that may be\ncontained in the materials described in Article 2(b) hereof (the “Documents”), OPC and Recipient desire to enter into this Agreement which shall\napply to any review of Confidential Information contained in the Documents after the date hereof by Recipient. For the purposes of this\nAgreement, “Confidential Information” means the entirety of Documents identified in Section 2(b) below, but excludes any Publicly Disclosed\nInformation (as defined herein) or which Recipient has been authorized in writing by OPC to publicly disclose (excluding the disclosures\npermitted to be made by Recipient pursuant to Article 3.C below). For purposes of this Agreement, “Publicly Disclosed Information” means\nterms, conditions or other information that has become generally available to the public other than: (i) as a result of disclosure by Recipient, or\n(ii) any Confidential Information that Recipient knows has been disclosed by a third party (x) approved to receive such Confidential Information\nhereunder in violation of the terms of this Agreement or (y) in violation of any obligation of confidentiality of such third party similar to the\nterms of this Agreement.\n(b)\nThe Documents to which this Agreement shall apply are:\ni. the Engineering, Procurement and Construction Agreement between GPC, acting for itself and as agent for the other Owners\n(as such term is defined therein, the “Owners”), and a consortium consisting of Westinghouse and Stone & Webster\n(26) For Lender ’s Engineer ’s NDA, use first bracketed option; for each individual Lender’s Engineer employee’s NDA, use\nsecond bracketed\noption.\nExhibit L-2\n- Page1\n(collectively, the “Contractor”), dated as of April 8, 2008, as it may be amended from time to time, for the Project (the “EPC\nAgreement”);\nii. an executed copy of the Toshiba Guarantee, as it may be amended from time to time in the form attached as Exhibit V-1 to the\nEPC Agreement;\niii. an executed copy of the Shaw Guarantee, as it may be amended from time to time in the form attached as Exhibit V-2 to the\nEPC Agreement;\niv. an executed copy of the Software License (as it may be amended from time to time, the “Software License”) attached as\nExhibit M to the EPC Agreement;\nv. the Contract for AP1000 Fuel Fabrication, Design and Related Services, dated as of April 3, 2009, between Southern Nuclear\nOperating Company, Inc. (the “Operator”), acting as the agent of Georgia Power Company, collectively as owner, and\nWestinghouse, as amended by Amendment No. 1 dated as of June 21, 2012, (as it may be further amended from time to time, the\n“Fuel Fabrication Agreement”); any other contract entered into after the date hereof by GPC or the Operator for the supply of fuel\nassemblies and/or related required software for the Project, as it may be amended from time to time (each, a “Fuel Supply\nAgreement”); the Amended and Restated License Agreement dated February 9, 2012, between the Operator, for itself and as agent\nfor Alabama Power Company and Georgia Power Company, collectively, as licensee, and Westinghouse (as it may be amended\nfrom time to time, the “License Agreement”); the agreement (if any), to be entered into after the date of this Agreement by\nWestinghouse and the Owners or GPC (acting for itself and as agent for the other Owners) if the AP1000-compatible version of\nBest Estimate Analysis for Core Operation Nuclear - Direct Margin Monitor System and its related deliverables to be used in the\noperation of the Project (the “BEACON-DMM Software”) is not otherwise provided for the Project, pursuant to which the\nOwners will acquire the BEACON-DMM Software including a license for the use thereof (as such agreement may be amended\nfrom time to time, the “BEACON Software Agreement”);\nvi. each Monthly Status Report provided by Contractor to GPC pursuant to the EPC Agreement ;\nvii. each monthly construction status report filed by GPC with the Georgia Public Service Commission (“Georgia PSC”);\nExhibit L-2\n- Page2\nTM\nTM\nTM\nviii.\neach monthly project report delivered by the Operator to the co-owners of Vogtle Units 3 & 4;\nix. the level two schedule of significant development, construction and completion milestones for the completion of each Unit, in\neach case prepared by GPC, as updated from time to time;\nx. a copy of the written materials delivered by GPC, as agent for the co-owners of Vogtle Units 3 & 4, to the co-owners in\nconnection with any monthly project management board meeting;\nxi. invoices submitted by Contractor to Owners pursuant to the EPC Agreement;\nxii. any semi-annual construction monitoring reports filed with the Georgia PSC by GPC pursuant to the final amended\ncertification order and all orders on remand entered by the Georgia PSC in Docket No. 27800-U that contains any Confidential and\nProprietary Information;\nxiii.\nany notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments\nwith respect to the foregoing, with respect to GPC, OPC or the Municipal Electric Authority of Georgia or any of its wholly owned\nsubsidiaries (each, a “DOE Borrower”) or the Operator or their participation in the Project, in each case that has, or could\nreasonably be expected to have, a Material Adverse Effect (as such term is defined in the DOE Loan Guarantee Agreements) or a\nmaterial adverse effect on the ability of the Project to be completed or operated, only to the extent such items contain Confidential\nand Proprietary Information;\nxiv. any notice and a copy of any of the following communications received by a DOE Borrower or the Operator from the NRC:\n(1) notice of a potential violation of severity level III or higher (or its equivalent in subsequent versions of the NRC Enforcement\nPolicy); (2) Red, Yellow or White NRC Inspection Finding (or its equivalent in subsequent versions of the Reactor Oversight\nPolicy); (3) notice to stop work or shut down or show cause; (4) Demand for Information under 10 CFR § 50.54(f) or 10 CFR §\n2.204; or (5) any other immediately effective, unilateral, docket-specific, non-routine communication requiring action by any\nlicensee with respect to the Project, only to the extent such items contain Confidential and Proprietary Information;\nExhibit L-2\n- Page3\nxv. any notice of any complaint, order, directive, claim, citation, designation or notice by any Governmental Authority (as such\nterm is defined in the DOE Loan Guarantee Agreements) with respect to the Project received by a DOE Borrower or the Operator\nrelating to any actual or potential material non-compliance with its then-existing obligations under Environmental Laws (as such\nterm is defined in the DOE Loan Guarantee Agreements) and any written description of any steps that DOE Borrower or the\nOperator is taking and proposes to take with respect to the matters described in such notice, only to the extent such items contain\nConfidential and Proprietary Information;\nxvi. notice and a copy of any stop work order issued by a DOE Borrower or the Operator with respect to any work on the Project,\nonly to the extent such items contain Confidential and Proprietary Information;\nxvii.\nany notice of any termination, amendment or material waiver or breach of, or material notices and material\ncorrespondence with respect to, the EPC Agreement, the Toshiba Guarantee, the Shaw Guarantee, the Software License, the Fuel\nFabrication Agreement, any other Fuel Supply Agreement, the BEACON Software Agreement (if any) or the License Agreement\nand any copy of any of the foregoing or any agreement, instrument or other document giving effect to any of the foregoing, only to\nthe extent such items contain Confidential and Proprietary Information;\nxviii.\nany notice of any event that constitutes an Event of Default, Potential Default, Mandatory Prepayment Event or Potential\nMandatory Prepayment Event (as such terms are defined in the DOE Loan Guarantee Agreements) and any written description of\nany steps any DOE Borrower has taken or proposes to take to remedy matters described in any such notice, only to the extent such\nitems contain Confidential and Proprietary Information;\nxix. any notice of the occurrence of any event, condition, legislation or governmental proceedings and any developments with\nrespect to the foregoing, with respect to any DOE Borrower or the Operator or their participation in the Project, in each case that\nhas resulted in, or any DOE Borrower believes will result in, Public Inquiries (as such term is defined in the DOE Loan Guarantee\nAgreements), only to the extent such items contain Confidential and Proprietary Information; and\nxx. any lien waivers and releases, with respect to all work reflected in any invoice of the Contractor and, in the case of the invoice\nfor the final payment from the DOE Borrowers under the EPC Agreement, the Contractor’s affidavit, only to the extent such items\ncontain Confidential and Proprietary Information.\nExhibit L-2\n- Page4\n(c)\nNotwithstanding the foregoing, Confidential Information made available to Recipient pursuant to this Agreement shall\nnot include any such Confidential Information consisting of AP1000 engineering or design or related information of Contractor, or\nWestinghouse, or Stone & Webster individually, not included in the public version of the AP1000 Design Control Document, including as a\nrepresentative list of such information: calculations for safety-related systems and components; the Plant Design Model; instrumentation and\ncontrol functional, system, software and interface requirements and functional logic diagrams; designs, design specifications and qualification\nreports for safety-related and non-safety related equipment; systems design and design specification documents for safety-related and non-safety\nrelated systems; design change packages, including E&DCRs; instrumentation and control architecture diagrams, software verification and\nvalidation documentation, testing procedures and test results; component data packages; fabrication and construction drawings; and final plant\nas-built drawings.\n(d)\nTo the extent, as a result of any request from Recipient (or a request from DOE on behalf of Recipient) to be allowed\nto see any Confidential Information that has been redacted under Section 2(c), OPC obtains from Contractor, or Westinghouse or Stone &\nWebster individually, permission to disclose such redacted Confidential Information, such Confidential Information will be disclosed by OPC to\nRecipient in the same manner and under the same conditions as such redacted Confidential Information has been made available by Contractor,\nor Westinghouse or Stone & Webster individually, to OPC.\n3.\nIn connection with Recipient’s participation in providing the technical advisory and support services to the DOE under the Contract in\nconnection with the Project (the “Purpose”):\nA.\nRecipient acknowledges OPC may not disclose Confidential Information included in the Documents until and unless the\npersons to whom such Confidential Information is disclosed agree to keep such information, terms and conditions confidential as\nprovided herein and only to use such Confidential Information for the Purpose. Recipient by this Agreement agrees to keep the\nConfidential Information contained therein confidential, subject to the terms of this Agreement.\nB.\nRecipient hereby acknowledges, agrees and understands that the Confidential Information is confidential and proprietary\nbusiness, technical and financial information of OPC, Westinghouse and/or Stone & Webster, and the disclosure of Confidential\nInformation could cause substantial harm to the competitive and commercial interests of OPC and Contractor, or Westinghouse, or\nStone & Webster individually.\nC.\nRecipient hereby agrees and confirms that, pursuant to Article 3.A. above, Recipient will protect the confidentiality of such\nConfidential Information, including any information or analysis derived from it, and not disclose it to any third party, except as provided\nin this Article 3.C .\nExhibit L-2\n- Page5\n(1)\nSpecifically, Recipient will not disclose nor release any Confidential Information obtained in the course of review of the\nDocuments to anyone, either during or after the period of performance of the Contract, other than:\n(a)\nindividuals within Recipient’s organization who are directly concerned with the performance of the Contract and the\nPurpose, and who have executed a nondisclosure and non-use agreement in substantially the same form of this Agreement, or\nwho are secretarial or word processing personnel to whom Recipient has provided the Confidential Information solely for the\npurpose of Recipient’s performance of the Contract and the Purpose and who are under the same obligations of confidentiality\nand nonuse as the Recipient;\n(b)\nindividuals who are employees of the United States’ government in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project, designated in writing, including by e-mail, by an attorney in the DOE,\nprovided (1) such individual employees of the United States’ government have confirmed to Recipient in writing, including by\ne-mail, that they have a need to know such Confidential Information in connection with their work in relation to the DOE\nBorrowers’ DOE Loan Guarantees for the Project;\n(c)\nwith respect to any such Confidential Information obtained in the course of review of the Documents listed in items\n(i) through (v) and (xiii) through (xx) of Article 2(b), to attorneys at Chadbourne & Parke LLP or Hunton & Williams LLP who\nhave confirmed to Recipient in writing, including by email, that they have entered into a confidentiality agreement with OPC\non terms similar to this Agreement with respect to such Documents; and\n(d)\nas required by law, including without limitation pursuant to direction or an order from a court or federal office (e.g .,\nthe Government Accountability Office) of competent jurisdiction, provided that Recipient shall follow the procedure set out in\nArticle 8 below.\n(2)\nFor any such disclosure described in this Article 3, Recipient shall minimize the amount of Confidential Information disclosed\nto only the Confidential Information that Recipient in good faith and in its discretion believes is required to be disclosed and shall\nreasonably cooperate with OPC or Contractor, or Westinghouse or Stone & Webster individually, in any efforts that OPC or Contractor,\nor Westinghouse or Stone & Webster individually, may take to limit disclosure of the Confidential Information.\n(3)\nRecipient warrants that it is not included in any United States Government published list of persons or entities whose export or\nimport privileges are in any way restricted. Recipient warrants that it shall not disclose any Confidential Information to any third parties\nif such third party is, at the time of the disclosure, included in any United States Government published list of persons or entities whose\nexport or import privileges are in any way restricted. Recipient acknowledges that Confidential Information may be subject to one or\nmore of the U.S. Government export control laws\nExhibit L-2\n- Page6\nand regulations, including without limit the U.S. Export Administration Regulations (EAR), and the regulations of the U.S. Department\nof Energy at 10 CFR Part 810. Accordingly, Recipient shall not transfer or disclose, or permit the transfer or disclosure in any medium,\nConfidential Information received under this Agreement to: (i) any person that is not a citizen, national, permanent resident alien or\n“Protected Person” of the United States; (ii) any foreign country; or (iii) any legal entity organized under the laws of a country other\nthan the United States, including without limit its employees, directors, owners, affiliated companies, or agents and representatives,\nwithout specific authorization from OPC and Westinghouse and only in accordance with applicable U.S . Government export control\nregulations.\n4.\nOPC makes no representation whatsoever (and none is to be implied or relied upon by Recipient) as to the sufficiency or accuracy of the\nConfidential Information provided hereunder, the ability of Recipient to use the Confidential Information for its intended purpose, or the result to\nbe obtained therefrom. GPC covenants that the Documents that OPC shall make available to the Recipient for its review shall be a true, correct\nand complete copy of the Documents as of the time that OPC makes the Documents available to the Recipient.\n5.\nRecipient hereby accepts responsibility for its own acts. To the extent that OPC, Westinghouse or Stone & Webster suffers any damage\nas a result of either (a) Recipient’s publication or disclosure of the Confidential Information in any way whatsoever to any unauthorized person\nor (b) the use of the Confidential Information by Recipient, Recipient shall be liable for any and all actual damages suffered by OPC,\nWestinghouse and/or Stone & Webster as a result of such unauthorized publication, disclosure or use, not to exceed $3,500,000. In addition,\nRecipient acknowledges that OPC, Westinghouse, and/or Stone &Webster may suffer irreparable harm as a result of Recipient’s actions under\neither (a) or (b) herein above, and Recipient hereby agrees that OPC, Westinghouse and/or Stone & Webster shall be entitled to seek an\ninjunction or other equitable relief should such action be taken by Recipient. For purposes of this Article 5 and Article 8 below, Westinghouse\nand/or Stone & Webster shall be considered third party beneficiaries hereunder.\n6.\nRecipient further agrees that Recipient will not have the right to receive electronic or hard copies of such Documents under this\nAgreement, but will be entitled to review the Documents from time to time during the term of Recipient’s services under the Contract in the\noffices of GPC in Atlanta, GA or at the Vogtle 3 & 4 Project site in Waynesboro, GA upon reasonable notice to GPC and Contractor.\n7.\nOPC acknowledges that in the performance of the Contract, Recipient is required to undertake a review of the Documents and may be\nrequired to prepare written summaries of Documents or analyses of the information contained therein for review by DOE and such individuals as\nset forth in Article 3.C(1)(b) and/or Article 3.C(1)(c) above. In Recipient’s review of the Documents, Recipient shall be entitled to prepare such\nwritten notes and analyses as Recipient shall deem appropriate for purposes of preparing such summaries or analyses. All such written\nsummaries, notes and analyses shall contain a prominent statement on the cover page stating the following: “This document contains\nConfidential Information of OPC, Westinghouse, Stone & Webster, and/or their partners and suppliers.” No such summary, note or analysis, nor\nExhibit L-2\n- Page7\nany excerpt thereof, shall be disclosed by Recipient to any third party except as provided in Article 3.C above.\n8.\nIf Recipient is notified that it is required by law, including without limitation pursuant to direction or an order from a court or federal\noffice (e.g ., the Government Accountability Office) of competent jurisdiction (including by oral questions, interrogatories, subpoena, government\ninvestigative demand or similar process) to release Confidential Information, upon Recipient’s receipt of any such notice, Recipient shall provide\nprompt written notice thereof to OPC, Westinghouse and Stone & Webster, by email, fax or overnight courier at their respective addresses below\nor such other addresses as they may notify to Recipient in writing from time to time, so as to allow OPC or Contractor, or Westinghouse or\nStone & Webster individually, the opportunity to seek to limit the extent of disclosure of the Confidential Information and/or to seek a protective\norder or other appropriate remedy (and/or waive compliance with the provisions of this Agreement). If such limitation or protective order or\nother appropriate remedy is not obtained before Recipient is legally required to produce such Confidential Information (or compliance with the\nprovisions of this Agreement is waived), Recipient after consultation with OPC and Westinghouse, shall disclose only the minimum amount of\nConfidential Information that Recipient in good faith and in its discretion believes is legally required.\nIf to Westinghouse:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Frank G. Gill\nCommercial Director, Vogtle 3 & 4 Project\nFacsimile: 1-724-940-8502\nEmail: gillfg@westinghouse.com\nWith a copy to:\nWestinghouse Electric Company LLC\n1000 Westinghouse Drive\nCranberry Township, Pennsylvania 16066\nAttention: Sr. Vice President & General Counsel\nFacsimile: 1-724-940-8508\nEmail: sweenemt@westinghouse.com\nIf to Stone & Webster:\nStone & Webster, Inc.\n128 South Tryon Street\nCharlotte, NC 28202\nAttention: Senior Associate General Counsel\nFacsimile: (704) 331-6001\nEmail: Mark McKain@cbi.com\nExhibit L-2\n- Page8\nWith a copy to:\nStone & Webster, Inc.\n100 Technology Center Drive\nStoughton, Massachusetts 02072\nAttention: Nuclear Division Counsel\nFacsimile: 617-589-7575\nEmail: Ken.Jenkins@cbi.com\n9.\nRecipient acknowledges that the Confidential Information will only be utilized in accordance with the task or subtask assignment\npursuant to the Contract for the Purpose and acknowledges that the disclosure of this Confidential Information is otherwise restricted by OPC as\nsubmitter.\n10.\nThis Agreement shall be governed in accordance with the laws of the State of New York without giving effect to any choice of law,\nprovision, or rule (whether of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than New\nYork.\nExhibit L-2\n- Page9\nACCEPTED AND AGREED\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nE-mail:\nPhone:\nFax:\nACKNOWLEDGED AND AGREED\nOGLETHORPE POWER CORPORATION (AN ELECTRIC MEMBERSHIP CORPORATION)\nBy:\nName:\nTitle:\nDate:\nAddress for Notices:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, Georgia 30034-5336\nAttention: Chief Financial Officer\nFax: 770-270-7977\nEmail: betsy.higgins@opc.com\nWith a copy to:\nOglethorpe Power Corporation\n2100 East Exchange Place\nTucker, GA 30084-5336\nAttention: General Counsel\nFax: 770-270-7977\nE-mail: annalisa.bloodworth@opc.com\nExhibit L-2 - Page 10 0f32a3a54d9c1e42d26f66746821c3bf.pdf effective_date jurisdiction party term EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n \n \n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jgian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.llse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC. JDA SOFTWARE GROUP, INC.\nBy: ’.LOGO By: ’.LOGO\nName: Laura L Fese Name: David Kennedy\nTitle: Chief Legal Officer Title: Executive Vice President and Chief Legal Officer\nDate: 9/4/12 Date:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186 Address: 14400 N. 87t Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy: ’.LOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49t Floor, New York, NY 10019 EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this "Agreement"), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, "JDA"), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, "RHI") (each a "Party" and collectively, the "Parties"), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a "Possible Transaction"), the Party\nreferred\nto\nas\nthe\n"Provider"\nis\nprepared\nto\nmake\navailable\nto\nthe\nParty\nreferred\nto\nas\nthe\n"Recipient"\ncertain\n"Evaluation\nMaterial"\n(as\ndefined\nin\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term "Evaluation Material" means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient's evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii)\nwas\nwithin the Recipient's or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient's Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term "Representatives" in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term "Representatives" in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c)\nThe term "Person" includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient's Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient's Representatives, other than those of\nRecipient's unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider's Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement\nor\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request\nor\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which\nis\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider's sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220-5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck 415-315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. "Click Through" Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, "clicking" on an "I Agree" icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient's and its Representatives' confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient's obligations hereunder with respect to such\nEvaluation Material.\n9.\nNo Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the "Standstill Period"), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the "1934 Act")) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i)\nany acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii)\nany tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii)\nany\nrecapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any\nof\nits subsidiaries, or\n(iv) any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission)\nor\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a "group" (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11.\nMaintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege\nshall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to\nthe\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16.\nRemedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S. registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability.. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha, WI 53186\nAddress: 14400 N. 87th Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49th Floor, New York, NY 10019\n8 EX-99.D.3 12 d438799dex99d3.htm AMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nExhibit (d)(3)\nEXECUTION COPY\nAMENDED AND RESTATED MUTUAL NONDISCLOSURE AGREEMENT\nThis Amended and Restated Mutual Nondisclosure Agreement (this “Agreement”), by and between JDA Software Group, Inc., a Delaware\ncorporation (together with its subsidiaries, “JDA”), and RedPrairie Holding, Inc., a Delaware corporation (together with its subsidiaries and New\nMountain Capital, LLC, “RHI”) (each a “Party” and collectively, the “Parties”), is dated as of the latest date set forth on the signature page hereto.\n1. General. In connection with the consideration of a possible transaction involving RHI and JDA (a “Possible Transaction”), the Party\nreferred to as the “Provider” is prepared to make available to the Party referred to as the “Recipient” certain “Evaluation Material” (as defined in\nSection 2 below) in accordance with the provisions of this Agreement, and to take or abstain from taking certain other actions as hereinafter set forth.\n2. Definitions.\n(a) The term “Evaluation Material” means information concerning the Provider which is furnished on or after November 8, 2011 to the\nRecipient or its Representatives (as defined below) on the Recipient's behalf in connection with the Recipient’s evaluation of a Possible\nTransaction, including its business, financial condition, operations, assets and liabilities, and includes all notes, analyses, compilations, studies,\ninterpretations or other documents prepared by the Recipient or its Representatives to the extent containing or which are based upon, in whole\nor in part, the information furnished by the Provider hereunder, The term Evaluation Material does not include information which (i) is or\nbecomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in breach of this Agreement, (ii) was\nwithin the Recipient’s or its Representatives possession prior to its being furnished to the Recipient or its Representatives by or on behalf of\nthe Provider, provided that the source of such information was not known by the Recipient or its Representatives to be bound by a\nconfidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to such\ninformation, (iii) is or becomes available to the Recipient or its Representatives on a non-confidential basis from a source other than the\nProvider or its Representatives, provided that the source of such information was not known by the Recipient or its Representatives to be\nbound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Provider with respect to\nsuch information, or (iv) was or is independently developed by the Recipient or the Recipient’s Representatives without the use of or reference\nto any Evaluation Material provided by or on behalf of Provider or its Representatives.\n(b) The term “Representatives” in the case of JDA shall mean the directors, officers, employees, counsel, investment bankers, financial\nadvisors, agents, consultants, advisors, accountants or auditors of JDA. The term “Representatives” in the case of RHI shall mean the\ndirectors, officers, employees, counsel, and with prior written consent of JDA (not to be unreasonably withheld), investment bankers, financial\nadvisors, potential sources of capital or financing (debt or equity), agents, consultants, advisors, accountants or auditors of RHI.\nNotwithstanding the foregoing, nothing in this Agreement shall restrict the ability of RHI to\ndiscuss with, or engage, Greenhill & Co, or Bain & Company to act as its consultant, investment banker or financial advisor in connection with\na Possible Transaction or to discuss with, or engage, Deloitte as its advisor or accountant in connection with a Possible Transaction.\n(c) The term “Person” includes the media and any corporation, partnership, group, individual or other entity.\n3. Use of Evaluation Material. The Recipient and its Representatives will use the Evaluation Material solely for the purpose of evaluating a\nPossible Transaction and, subject to Section 5, will not disclose any of the Evaluation Material in any manner whatsoever; provided, however, that\nany of such information may be disclosed to the Recipient’s Representatives for the purpose of helping the Recipient evaluate a Possible\nTransaction. The Recipient agrees to be responsible for any breach of this Agreement by any of the Recipient’s Representatives, other than those of\nRecipient’s unaffiliated Representatives who have entered into a separate confidentiality agreement with the Provider. This Agreement does not grant\nthe Recipient or any of its Representatives any license to use the Provider’s Evaluation Material except as provided herein. For the avoidance of\ndoubt, RHI agrees that it shall not disclose any of the Evaluation Material provided by or on behalf of JDA to any of its affiliates that are not\nincluded in the definition of RHI.\n4. Non-Disclosure of Discussions. Subject to Section 5, each Party agrees that, without the prior written consent of the other Party, such Party\nand its Representatives will not disclose to any other Person (i) that Evaluation Material has been exchanged between the Parties, (ii) that discussions\nor negotiations are taking place between the Parties concerning a Possible Transaction or (iii) any of the terms, conditions or other facts with respect\nthereto (including the status thereof); provided, however, that JDA may make such disclosure if it does not identify RHI by name or by identifiable\ndescription. RHI agrees that neither RHI nor any Representative (to the extent acting on behalf or at the direction of RHI) of RHI will, without the\nprior consent of JDA (not to be unreasonably withheld), directly or indirectly, enter into any agreement, arrangement or understanding with any other\nperson regarding a Possible Transaction (including, without limitation, financing thereof). RHI represents and warrants that, except as disclosed to\nJDA or its outside counsel prior to the date hereof, neither RHI nor any Representative of RHI have, prior to the date hereof, taken any of the actions\nreferred to in the immediately preceding sentence. Without limiting the foregoing, RHI agrees that neither RHI nor any Representative (to the extent\nacting on behalf and at the direction of RHI) of RHI will, without the prior written consent of JDA, enter into any exclusive arrangement with\nrespect to the provision of debt financing in connection with a Possible Transaction. For purposes of this Agreement, any agreement, arrangement or\nother understanding, whether written or oral, with any potential debt financing source which does, or could be reasonably expected to, legally or\ncontractually limit, restrict or otherwise impair in any manner, directly or indirectly, such financing source from acting as a potential debt financing\nsource to any other party with respect to a Potential Transaction shall be deemed an exclusive arrangement.\n5. Legally Required Disclosure. If the Recipient or its Representatives are requested or required (by oral questions, interrogatories, other\nrequests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the\nEvaluation Material or any of the facts disclosure of which is prohibited\n2\nunder Section 4 above, the Recipient or such Representative shall provide the Provider with prompt written notice of any such request or\nrequirement. If, in the absence of a protective order or other remedy or the receipt of a waiver by the Provider, the Recipient or any of its\nRepresentatives is nonetheless legally compelled or required by law to disclose Evaluation Material or any of the facts disclosure of which is\nprohibited under Section 4, the Recipient or its Representatives may, without liability hereunder, disclose to such requiring Person only that portion\nof such Evaluation Material or any such facts which the Recipient or its Representatives is legally compelled or required by law to disclose; provided\nthat the Recipient and/or its Representatives exercise its commercially reasonable efforts, at the Provider’s sole expense, to preserve the\nconfidentiality of such Evaluation Material or any of such facts, including, without limitation, by reasonably cooperating with the Provider to obtain\nan appropriate protective order or other reliable assurance that confidential treatment will be accorded such Evaluation Material or such facts by the\nPerson receiving the material. Notwithstanding the foregoing, Recipient and its Representatives may disclose such information, and need not provide\nsuch notice, in connection with a routine blanket audit or proceeding (including in response to oral questions or requests for information or\ndocuments) involving the Recipient or its Representatives, as applicable, by a regulatory authority with jurisdiction over the Recipient or such\nRepresentative where neither the Provider nor the Possible Transaction is the target of such proceeding or audit. In either case, the Recipient and its\nRepresentatives shall take reasonable measures to obtain confidential treatment with respect to any such information disclosed.\n6. No Contacts. Neither Party nor any of its Representatives will, in connection with its consideration of a Possible Transaction, initiate or\nmaintain any contact with any officer, director, employee, agent, supplier, customer, lender or competitor of the other Party, except with the prior\nwritten consent of the other Party. If discussions between the Parties regarding a Possible Transaction are terminated, the Parties and their\nRepresentatives shall promptly cease all such contacts that may have been previously authorized. Unless otherwise consented to by RHI or JDA, as\napplicable, in writing, all communications regarding a Possible Transaction, including (i) requests for information, (ii) requests for facility tours or\nmanagement meetings, (iii) discussions or questions regarding procedures, and (iv) requests for any consent required under this Agreement, will be\nsubmitted or directed (a) in the case of RHI, to Jack Qian at New Mountain Capital LLC (212-220 -5040; jqian@newmountaincapital.com), or Paul\nIlse at RHI (678-639-5398; Paul.IIse@RedPrairie.com), and (b) in the case of JDA, to David Lubeck (415- 315-8612;\ndavid.w.lubeck@jpmorgan.com) or Drago Rajkovic (415-315-8100; drago.rajkovic@jpmorgan.com) of J.P. Morgan Securities LLC or their\ndesignees.\n7. “Click Through” Agreements. The terms of this Agreement shall control over any additional purported confidentiality requirements imposed\nby an offering memorandum or electronic database, dataroom, or similar repository of Evaluation Material to which the Recipient or its\nRepresentatives are granted access in connection with this Agreement or a Possible Transaction, notwithstanding acceptance of such an offering\nmemorandum or submission of an electronic signature, “clicking” on an “I Agree” icon or other indication of assent to such additional\nconfidentiality conditions, it being understood and agreed that the Recipient’s and its Representatives’ confidentiality obligations with respect to the\nEvaluation Material are exclusively governed by this Agreement and may not be enlarged except by an agreement executed by the Parties hereto in\ntraditional written format.\n3\n8. Termination of Discussions. If either Party decides that it does not wish to proceed with a Possible Transaction, it will promptly inform the\nother Party of that decision. In that case, or at any time upon the written request of the Provider for any reason, the Recipient will, and will direct its\nRepresentatives to, within five business days after receipt of such notice or request, destroy or return all Evaluation Material in any way relating to\nthe Provider or its products, services, employees or other assets or liabilities, and no copy or extract thereof (including electronic copies) shall be\nretained (except that one copy may be maintained by outside legal counsel to the Recipient for archival purposes), and the term of this Agreement\nshall be extended by a like number of days for each day that the Recipient or any of its Representatives is in non-compliance of this Section 8. The\nRecipient shall provide to the Provider a certificate of compliance with the previous sentence. Notwithstanding the return or destruction of the\nEvaluation Material, the Recipient and its Representatives will continue to be bound by the Recipient’s obligations hereunder with respect to such\nEvaluation Material.\n9. No Solicitation. The Recipient will not, within one year from the date of this Agreement, solicit the employment or consulting services of\nany of the officers of the Provider with whom it has had contact in connection with its evaluation of a Possible Transaction, so long as they are\nemployed by the Provider. The Recipient is not prohibited from: (i) soliciting by means of a general advertisement not directed at any particular\nindividual or the employees of the Provider generally, or (ii) engaging any recruiting firm or similar organization to identify or solicit individuals for\nemployment on behalf of the Recipient (and soliciting any person identified by any such recruiting firm or organization) so long as the Recipient\ndoes not identify the individuals to be solicited by such recruiting firm or organization.\n10. Standstill. RHI agrees that, for a period ending on the earlier of (x) one year after the date of this Agreement, (y) the date a public\nannouncement is made of the entry by JDA into a binding definitive agreement with any third party to effect a purchase, tender or exchange offer,\nmerger or other business combination that, if consummated, would result in a third party owning at least a majority of the outstanding voting\nsecurities of JDA or all or substantially all of the assets of JDA and its subsidiaries (taken as a whole) or (z) the date of commencement by a third\nparty of a tender or exchange offer for at least a majority of the outstanding voting securities of JDA (the “Standstill Period”), unless specifically\ninvited in writing by JDA or its Representatives, neither RHI nor any of its affiliates (as such term is defined under the Securities Exchange Act of\n1934, as amended (the “1934 Act”)) which has been furnished with Evaluation Material pursuant hereto (including New Mountain Capital LLC) or\nRepresentatives (acting on its behalf) will in any manner, directly or indirectly:\n(a) effect, seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, or in any way assist any other Person\nto effect, seek, offer or propose (whether publicly or otherwise) to effect or participate in:\n(i) any acquisition of the equity securities (or beneficial ownership thereof) or any material assets of JDA or any of its\nsubsidiaries,\n(ii) any tender or exchange offer, merger or other business combination involving JDA or any of its subsidiaries,\n4\n(iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to JDA or any of\nits subsidiaries, or\n(iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or\nconsents to vote any voting securities of JDA;\n(b) form, join or in any way participate in a “group” (as defined under the 1934 Act with respect to the voting securities of JDA;\n(c) make any public announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any\nextraordinary transaction involving JDA or its voting securities or assets;\n(d) otherwise act, alone or in concert with others, to seek to change, control or influence the management, Board of Directors or policies\nof JDA;\n(e) take any action which might force JDA to make a public announcement regarding any of the types of matters set forth in (a) above;\n(f) enter into any discussions or arrangements with any third party with respect to any of the foregoing; or\n(g) make any public announcement inconsistent with the agreements contained in this Section,\nRHI also agrees during the Standstill Period not to request (either directly or through its affiliates or Representatives) that JDA (or its directors,\nofficers, employees or agents), directly or indirectly, amend or waive any provision of this Section 10 (including this sentence) if such request would\nrequire JDA to publicly disclose such request. In no event shall this Section 10 be construed as prohibiting the taking of any of the aforementioned\nactions with respect to any Person other than JDA or any of its subsidiaries notwithstanding the fact that, at the time such action is taken, JDA (or a\nsubsidiary thereof) may be a subsidiary of such Person.\n11. Maintaining Privileges. If any Evaluation Material includes materials or information subject to the attorney-client privilege, work product\ndoctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each Party\nunderstands and agrees that the Parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual\nunderstanding of the Parties that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of\nsuch material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All Evaluation\nMaterial provided by a Party that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall\nremain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.\n5\n12. Compliance with Securities Laws. The Recipient and its Representatives agree not to use any Evaluation Material of the Provider in\nviolation of applicable securities laws.\n13. Not a Transaction Agreement. Each Party understands and agrees that no contract or agreement providing for a Possible Transaction exists\nbetween the Parties unless and until a final definitive agreement for a Possible Transaction has been executed and delivered, and each Party hereby\nwaives, in advance, any claims (including, without limitation, breach of contract) relating to the existence of a Possible Transaction unless and until\nboth Parties shall have entered into a final definitive agreement for a Possible Transaction. Each Party also agrees that, unless and until a final\ndefinitive agreement regarding a Possible Transaction has been executed and delivered, neither Party will be under any legal obligation of any kind\nwhatsoever with respect to such Possible Transaction by virtue of this Agreement except for the matters specifically agreed to herein.\n14. No Representations or Warranties: No Obligation to Disclose. The Recipient understands and acknowledges that neither the Provider nor\nits Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of the Evaluation Material\nfurnished by or on behalf of the Provider and shall have no liability to the Recipient, its Representatives or any other Person relating to or resulting\nfrom the use of the Evaluation Material furnished to the Recipient or its Representatives or any errors therein or omissions therefrom. As to the\ninformation delivered to the Recipient, the Provider will only be liable for those representations or warranties which are made in a final definitive\nagreement regarding a Possible Transaction, when, as and if executed, and subject to such limitations and restrictions as may be specified therein.\nNothing in this Agreement shall be construed as obligating a Party to provide, or to continue to provide, any information to any Person.\n15. Modifications and Waiver. No provision of this Agreement can be waived or amended in favor of either Party except by written consent of\nthe other Party, which consent shall specifically refer to such provision and explicitly make such waiver or amendment. No failure or delay by either\nParty in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude\nany other or future exercise thereof or the exercise of any other right, power or privilege hereunder.\n16. Remedies. Each Party understands and agrees that money damages would not be a sufficient remedy for any breach of this Agreement by\neither Party or any of its Representatives and that the Party against which such breach is committed shall be entitled to equitable relief, including\ninjunction and specific performance, as a remedy for any such breach or threat thereof without the requirement of posting a bond or other security.\nSuch remedies shall not be deemed to be the exclusive remedies for a breach by either Party of this Agreement, but shall be in addition to all other\nremedies available at law or equity to the Party against which such breach is committed. If a court of competent jurisdiction, pursuant to a final, non-\nappealable order, determines that the Recipient or any of its Representatives has breached this Agreement, the Recipient shall pay the reasonable\ncosts (including legal fees and expenses) incurred by the Provider in enforcing this Agreement.\n17. Governing Law. This Agreement is for the benefit of each Party and its successors (including any purchaser of such Party) and shall be\ngoverned by and construed in\n6\naccordance with the laws of the State of Delaware applicable to agreements made and to be performed entirely within such state. Without limiting\nthe generality of the foregoing, this Agreement may be enforced by any Person with which the Recipient enters into a transaction. Each Party\nirrevocably and unconditionally submits to the jurisdiction of the federal and state courts located in the State of Delaware, New Castle County, for\nthe purpose of any action, suit or other proceeding arising out of or relating to this Agreement, and agree not to commence any action, suit or\nproceeding relating thereto except in any such court, and further agree that service of process, summons, notice or document by U.S . registered mail\nto its address set forth in this Agreement will be effective service of process for any action, suit or proceeding arising out of or relating to this\nAgreement. Each Party hereby also irrevocably and unconditionally (i) waives any objection to the laying of venue of any action, suit or proceeding\narising out of or relating to this Agreement in any such federal and state courts, and (ii) waives and agrees not to plead or claim in any such court that\nsuch action, suit or proceeding brought in any such court has been brought in an inconvenient forum.\n18. Severability. If any term, provision, covenant or restriction contained in this Agreement is held by any court of competent jurisdiction to be\ninvalid, void or unenforceable, the remainder of the terms, provisions, covenants or restrictions contained in this Agreement shall remain in full force\nand effect and shall in no way be affected, impaired or invalidated, and if a covenant or provision is determined to be unenforceable by reason of its\nextent, duration, scope or otherwise, then the Parties intend and hereby request that the court or other authority making that determination shall only\nmodify such extent, duration, scope or other provision to the extent necessary to make it enforceable and enforce them in their modified form for all\npurposes of this Agreement.\n19. Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent\nor interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise\nfavoring or disfavoring either Party by virtue of the authorship at any of the provisions of this Agreement.\n20. Term. This Agreement shall terminate two years after the date of this Agreement.\n21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes\nall prior agreements, understandings, arrangements and discussions between the Parties regarding such subject matter (including that certain Mutual\nNondisclosure Agreement, dated November 8, 2011, between JDA Software Group, Inc. and RedPrairie Holding, Inc.).\n22. Counterparts. This Agreement may be signed in counterparts, each of which shall be deemed an original but all of which together shall be\ndeemed to constitute a single instrument.\n7\nIN WITNESS WHEREOF, each of the undersigned entities has caused this Agreement to be signed by its duly authorized representative as of\nthe date written below.\nREDPRAIRIE HOLDING, INC.\nJDA SOFTWARE GROUP, INC.\nBy:\nLOGO\nBy:\nLOGO\nName: Laura L Fese\nName: David Kennedy\nTitle: Chief Legal Officer\nTitle: Executive Vice President and Chief Legal Officer\nDate: 9/4/12\nDate:\nAddress: 20700 Swenson Drive, Waukesha,WI 53186\nAddress: 14400 N. 87 Street, Scottsdale, AZ 85260-3649\nNEW MOUNTAIN CAPITAL LLC\nBy:\nLOGO\nName: Jack Qian\nTitle: Vice President\nDate:\nAddress: 787 Seventh Avenue, 49 Floor, New York, NY 10019\n8\nth\nth 0fe8eaee697774ac95f9186dd2fc3364.pdf effective_date jurisdiction party term EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\n \nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. Itis NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\n \nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n \nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n \nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee™).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information™) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n \n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n \n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n \nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n \nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By: /s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate: 3/23/06\n*Please return signature page only to Human Resources.\n EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof\nJanuary 27, 2009, by and among NitroMed, Inc. ("NitroMed"), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed's President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the "Agreement") sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the "Effective Time" and the date of\nsuch closing is referred to herein as the "Effective Date."\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the "Change in Control Agreement"). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed's trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as "Claims") against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys'\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof\nshall\nbe\ndeemed\nvalid\nunless\nreduced\nto\nwriting\nand\nsigned\nby\nNitroMed\nand\nyou.\nThis\nAgreement\nshall\nbe\ndeemed\nto\nhave\nbeen\nmade\nin\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced\nin\nfull. It is NitroMed's desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents\nor\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.'s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n"Company"), and Kenneth M. Bate ("Employee").\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary. Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany's business, business relationships or financial affairs (collectively, "Proprietary Information") is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financia data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as "Developments".\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company's\npremises and not using the Company's tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and\nall\nactions\nas\nthe\nCompany\nmay\ndeem\nnecessary\nor\ndesirable\nin\norder\nto\nprotect\nits\nrights\nand\ninterests\nin\nany\nDevelopment,\nunder\nthe\nconditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe\nterms\nof\nany\nagreement\nwith\nany\nprevious\nemployer\nor\nother\nparty\nto\nrefrain\nfrom\nusing\nor\ndisclosing\nany\ntrade\nsecret\nor\nconfidential\nor\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement\nwand\nas\nan\nemployee\nof\nthe\nCompany\ndoes\nnot\nand\nwill\nnot\nbreach\nany\nother\nagreement\nto\nwhich\nthe\nEmployee\nis\na\nparty\nincluding\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidentia or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5.\nNo Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee's heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter\nnotification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or\nin\nconnection with which Employee may use or permit Employee's name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name:\nKenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 EX-10.1 2 a09-6413_1ex10d1.htm EX-10.1\nExhibit 10.1\nEffective as of February 23, 2009\nKenneth M. Bate\n33 Middle Street\nConcord, MA 01742\nDear Ken:\nEffective immediately prior to the closing of the Merger (as such term is defined in that certain Agreement and Plan of Merger, dated as\nof January 27, 2009, by and among NitroMed, Inc. (“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield Private\nDesign Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund\nInternational Limited), unless you are earlier terminated for cause, you will be terminated without cause as NitroMed’s President, Chief Executive\nOfficer and Interim Chief Financial Officer. This agreement (the “Agreement”) sets forth the terms pursuant to which you will be terminated\nwithout cause immediately prior to closing of such Merger; the time of such closing is referred to herein as the “Effective Time” and the date of\nsuch closing is referred to herein as the “Effective Date.”\n1. Separation Benefits. Reference is hereby made to that certain Retention Agreement, dated as of January 23, 2007, between you and\nNitroMed, as amended by that certain letter agreement dated as of December 29, 2008, which is attached to this Agreement as Exhibit A and is\nincorporated herein (the “Change in Control Agreement”). In connection with the termination without cause of your employment immediately\nprior to the Effective Time, NitroMed is required to provide you with the benefits set forth in the Change in Control Agreement, including\nwithout limitation the benefits set forth in Section 4.2 thereof.\n2. Other Agreements. You hereby reaffirm your obligations set forth in the NitroMed Inventions and Non-Disclosure Agreement\npreviously executed between NitroMed and you (attached hereto as Exhibit B and incorporated herein by reference). You further agree to abide\nby any and all common law and/or statutory obligations relating to the protection and non-disclosure of NitroMed’s trade secrets and/or\nconfidential and proprietary documents and information.\n3. Release. You hereby acknowledge and agree that by signing this Agreement and accepting the economic benefits set forth in\nparagraph 1 above, you are waiving your right to assert, and releasing NitroMed from, any form of legal claim against NitroMed of any kind\nwhatsoever from the beginning of time through and including the Effective Date. Your waiver and release is intended to bar any form of legal\nclaim, charge, complaint or any other form of action (jointly referred to as “Claims”) against NitroMed seeking any form of relief including,\nwithout limitation, equitable relief (whether declaratory, injunctive or otherwise), the recovery of any damages or any other form of monetary\nrecovery\nwhatsoever (including, without limitation, back pay, front pay, compensatory damages, emotional distress damages, punitive damages, attorneys’\nfees and any other costs) against NitroMed up through and including the Effective Date. You understand that there could be unknown or\nunanticipated Claims resulting from your employment with NitroMed and the termination thereof and agree that such Claims are intended to be,\nand are, included in this waiver and release.\n4. Miscellaneous. This Agreement does not confer any additional benefits upon you that you are not otherwise already entitled to\nreceive pursuant to existing agreements between you and NitroMed, and the benefits set forth in paragraph 2 of this Agreement reflect all of the\nseverance benefits that you are entitled to receive upon termination of your employment at the Effective Time. No variations or modifications\nhereof shall be deemed valid unless reduced to writing and signed by NitroMed and you. This Agreement shall be deemed to have been made in\nthe Commonwealth of Massachusetts and shall take effect as an instrument under seal within the Commonwealth of Massachusetts. The validity,\ninterpretation and performance of this Agreement, and any and all other matters relating to your employment and separation of employment from\nNitroMed, shall be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without giving\neffect to conflict of law principles. Both parties agree that any action, demand, claim or counterclaim relating to (i) your employment and\nseparation of your employment, and (ii) the terms and provisions of this Agreement or to its breach, shall be commenced in the Commonwealth\nof Massachusetts in a court of competent jurisdiction. Both parties further agree that any such action, demand, claim or counterclaim shall be\ntried by a judge alone, and both parties hereby waive and forever renounce the right to a trial before a civil jury. The provisions of this\nAgreement are severable, and if for any reason any part hereof shall be found to be unenforceable, the remaining provisions shall be enforced in\nfull. It is NitroMed’s desire and intent to make certain that you fully understand the provisions and effects of this Agreement. To that end, you\nhave been encouraged and given an opportunity to consult with legal counsel. By executing this Agreement, you are acknowledging that you\nhave been afforded sufficient time to understand the provisions and effects of this Agreement and to consult with legal counsel, that your\nagreements and obligations under this Agreement are made voluntarily, knowingly and without duress and that neither NitroMed nor its agents or\nrepresentatives have made any representations inconsistent with the provisions of this Agreement.\n2\nIf the foregoing correctly sets forth our arrangement, please sign, date and return the enclosed copy of this Agreement to me.\nSincerely,\nNITROMED, INC.\n/s/ Mark Leschly\nMark Leschly\nChairman, Compensation Committee\nSigned and Agreed To:\n/s/ Kenneth M. Bate\nName: Kenneth M. Bate\n3\nExhibit A\nFor a copy of the Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2 to\nNitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 25, 2007.\nFor a copy of the letter amendment to the Retention Agreement, dated as of December 29, 2008, between Kenneth M. Bate and NitroMed, Inc.,\nplease see Exhibit 10.2 to NitroMed, Inc.’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 31,\n2008.\n4\nExhibit B\nINVENTION AND NON-DISCLOSURE AGREEMENT\nThis Agreement is made between NitroMed, Inc., a Delaware corporation (hereinafter referred to collectively with its subsidiaries as the\n“Company”), and Kenneth M. Bate (“Employee”).\nIn consideration of the employment of the continued employment of the Employee by the Company, the Company and the Employee\nagree as follows:\n1. Proprietary Information.\n(a) The Employee agrees that all information, whether or not in writing, of a private, Secret or confidential nature concerning the\nCompany’s business, business relationships or financial affairs (collectively, “Proprietary Information”) is and shall be the exclusive property of\nthe Company. By way of illustration, but not limitation, Proprietary Information may include inventions, products, presses, methods, techniques,\nformulas, compositions compounds, projects, developments, plans, research data, clinical data, financial data, personnel data, computer\nprograms, customer and supplier lists, and contacts at or knowledge of customers or prospective customers of the Company. The Employee will\nnot disclose any Proprietary Information to any person or entity other than employees of the Company or use the same for any purposes (other\nthan in the performance of his/her duties as an employee of the Company) without written approval by an officer of the company, either during or\nafter his/her employment with the Company, unless and until such Proprietary Information has become public knowledge without fault by the\nEmployee.\n(b) The Employee agrees that all files, letters, memoranda, reports, records, data, sketches, drawings, laboratory notebooks,\nprogram listings, or other written, photographic, or other tangible material containing Proprietary Information, whether created by the Employee\nor others, which shall come into his/her custody or possession, shall be and are the exclusive property of the company to be used by the\nEmployee only in the performance of his/her duties for the company. All such materials or copies thereof and all tangible property of the\ncompany in the custody or possession of the Employee shall be delivered to the Company, upon the earlier of (I) a request by the Company, or\n(ii) termination of his/her employment. After such delivery, the Employee shall not retain any such materials or copies thereof or any such\ntangible property.\n(c) The Employee agrees that his/her obligation not to disclose or to use information and materials of the types set forth in\nparagraphs (a) and (b) above, and his/her obligation to return materials and tangible property, set forth in paragraph (b) above, also extends to\nsuch types of information, materials and tangible property of customers of the Company or suppliers to the Company or other third parties who\nmay have disclosed or entrusted the same to the company or to the Employee.\n5\n2. Developments.\n(a) Inventions, improvements, discoveries, methods, developments, software, and works of authorship, whether patentable or not,\nwhich are created, made, conceived or reduced to practice by him/her or under his/her direction or jointly with others during his/her employment\nby the Company, whether or not during normal working hours or on the premises of the Company (all of which are collectively referred to in this\nAgreement as “Developments”.\n(b) The Employee agrees to assign and does hereby assign to the Company (or) any person or entity designated by the Company)\nall his/her right, title and interest in and to all Developments and all related patents, patent applications, copyrights and copyright applications.\nHowever, this paragraph 2(b) shall not apply to Developments which do not relate to the present or planned business or research and\ndevelopment of the company and which are made and conceived by the Employee not during normal working hours, not on the Company’s\npremises and not using the Company’s tools, devices, equipment or Proprietary Information. The Employee understands that, to the extent this\nAgreement shall be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain\nclasses of inventions made by an employee, this paragraph 2(b) shall be interpreted not to apply to any invention which a court rules and/or the\nCompany agrees falls within such classes. The Employee also hereby waives all claims to moral rights in any Developments.\n(c) The Employee agrees to cooperate fully with the Company, both during and after his/her employment with the Company, with\nrespect to the procurement, maintenance and enforcement of copyrights, patents and other intellectual property rights (both in the United States\nand foreign countries) relating to Developments. The Employee shall sign all papers, including, without limitation, copyright applications, patent\napplications, declarations, oaths, formal assignments, assignments of priority rights, and powers of attorney, which the Company may deem\nnecessary or desirable in order to protect its rights and interest in any development. The Employee further agrees that if the Company is unable,\nafter reasonable effort, to secure the signature of the Employee on any such papers, any executive officer of the Company shall be entitled to\nexecute any such papers as the agent and the attorney-in-fact of the Employee, and the Employee hereby irrevocably designates and appoints\neach executive officer of the Company as his/her agent and attorney-in-fact to execute any such papers on his/her behalf, and to take any and all\nactions as the Company may deem necessary or desirable in order to protect its rights and interests in any Development, under the conditions\ndescribed in this sentence.\n3. Other Agreements.\nThe Employee hereby represents that, except as the Employee has disclosed in writing to the Company, the Employee is not bound by\nthe terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or\nproprietary information in the course of his/her employment with the Company or refrain from competing, directly or indirectly, with the\nbusiness of such previous employer or any other party. The Employee further represents that his/her performance of all the terms of this\nAgreement wand as an employee of the Company does not and will not breach any other agreement to which the Employee is a party including\nbut not limited to any agreement to keep in confidence proprietary information, knowledge or data acquired by the Employee in confidence or in\ntrust prior to his/her employment with the Company, and the Employee will not disclose to the company or induce the Company to use any\nconfidential or proprietary information or material belonging to any previous employer or others.\n6\n4. United States Government Obligations.\nThe Employee acknowledges that the Company from time to time may have agreements with the other persons or with the United States\nGovernment, or agencies thereof, which impose obligations or restrictions on the Company regarding inventions made during the course of work\nunder such agreements or regarding the confidential nature of such work. The Employee agrees to be bound by all such obligations and\nrestrictions which are made known to the Employee and to take all action necessary to discharge the obligations of the Company under such\nagreements.\n5. No Employment Contract.\nThe Employee understands that this Agreement does not constitute a contract of employment and does not imply that his/her\nemployment will continue for any period of time.\n6. Miscellaneous.\n(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any\nprovision of this Agreement.\n(b) This Agreement supersedes all prior agreements, written or oral, between the Employee and the Company relating to the\nsubject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an agreement in\nwriting signed by the Employee and the Company. The Employee agrees that any change or changes in his/her duties, salary or compensation\nafter the signing of this Agreement shall not affect the validity or scope of this Agreement.\n(c) This Agreement will be binding upon the Employee’s heirs, executors and administrators and will inure to the benefit of the\nCompany and its successors and assigns.\n(d) No delay or omission by the Company in exercising any right under this Agreement will operate as a waiver of that or any\nright. A waiver or consent given by the Company on any one occasion is effective only in that instance and will not be construed as a bar to or\nwaiver of any right on any other occasion.\n(e) The Employee expressly consents to be bound by the provisions of this Agreement for the benefit of the Company or any\nsubsidiary or affiliate thereof to whose employ the Employee may be transferred without the necessity that this Agreement be resigned at the\ntime of such transfer.\n(f) The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the company and\nare considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of this Agreement is likely to cause the\nCompany substantial and irrevocable damage and therefore, in the event of any such breach, the Employee agrees that the Company, in addition\nto such other remedies which may be available, shall be entitled to specific performance and other injunctive relief, and employee waives the\nclaim or defense that the Company has an adequate remedy at law. Employee shall not, in any action or proceeding to enforce any of the\nprovisions of this Agreement, assert the claim or defense that such an adequate remedy at law exists.\n(g) This Agreement is governed by and will be construed as a sealed instrument under and in accordance with the laws of the\nCommonwealth of Massachusetts. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or\nrelating to any provisions of this\n7\nAgreement shall be commenced only in a court of the Commonwealth of Massachusetts (or, if appropriate, a federal court located within\nMassachusetts), and the Company and the Employee each consents to the jurisdiction of such a court.\n(h) Employee shall disclose the existence of the terms of this Agreement to any employer or other person that Employee may work\nfor or be engaged by after the termination of his or her employment or engagement at the Company. Employee agrees that the Company may,\nafter notification to Employee, provide a copy of this Agreement to any business or enterprise (I) which Employee may directly or indirectly\nown, manage, operate, finance, join, control or participate in the ownership, management, operation, financing, or control of, or (ii) with which\nthe Employee may be connected with as an officer, director, employee, partner, principal, agent, representative, consultant or other wise, or in\nconnection with which Employee may use or permit Employee’s name to be used. Employee to provide the names and addresses of any such\npersons or entities as the company may from time to time request.\n8\nINVENTION AND NON-DISCLOSURE AGREEMENT\nTHE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND\nAGREES TO ALL OF THE PROVISIONS IN THIS AGREEMENT.\nSigned By:\n/s/ Kenneth M. Bate\nPrinted Name: Kenneth M. Bate\nDate:\n3/23/06\n*Please return signature page only to Human Resources.\n9 diff --git a/dev-0/out.tsv b/dev-0/out.tsv index 9ad0064..6a29e01 100644 --- a/dev-0/out.tsv +++ b/dev-0/out.tsv @@ -1,83 +1,83 @@ -jurisdiction=New_York -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Delaware -jurisdiction=New_Jersey -jurisdiction=New_York -jurisdiction=Alabama -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=Delaware -jurisdiction=California -jurisdiction=New_York -jurisdiction=California -jurisdiction=Iowa -jurisdiction=Delaware -jurisdiction=Virginia -jurisdiction=North_Carolina -jurisdiction=Arizona -jurisdiction=Indiana -jurisdiction=New_Jersey -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=California -jurisdiction=Minnesota -jurisdiction=Delaware -jurisdiction=Kentucky -jurisdiction=Minnesota -jurisdiction=Ohio -jurisdiction=Massachusetts -jurisdiction=California -jurisdiction=Minnesota -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=Minnesota -jurisdiction=Texas -jurisdiction=New_Jersey -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=Oregon -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=Idaho -jurisdiction=Ohio -jurisdiction=California -jurisdiction=New_York -jurisdiction=California -jurisdiction=Utah -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Virginia -jurisdiction=Connecticut -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Alabama -jurisdiction=Texas -jurisdiction=California -jurisdiction=Washington -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=New_York -jurisdiction=Washington -jurisdiction=Illinois +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Alabama +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Iowa +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Arizona +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Kentucky +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Idaho +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Utah +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Alabama +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Illinois diff --git a/run.py b/run.py index 14ee661..fb42138 100644 --- a/run.py +++ b/run.py @@ -1,4 +1,5 @@ import re +import datefinder states = [ 'Alabama', 'Alaska', 'Arizona', 'Arkansas', 'California', 'Colorado', 'Connecticut', 'Delaware', 'Florida', @@ -18,20 +19,33 @@ def count_strings(text_in, search_str): def predict_state(text): state_dict = {} for state in states: - state_dict[state.replace(" ", "_")] = count_strings(text, state) + state_name = state.replace(" ", "_") + state_dict[state_name] = len(re.compile(state).findall(text, re.IGNORECASE)) + # state_dict[state_name] = count_strings(text, state) return max(state_dict, key=state_dict.get) +def predict_date(text): + match = re.search(r'\d{4}-\d{2}-\d{2}', text) + if match is not None: + return match.group(1) + + def get_jurisdiction(file_in, file_out): with open(file_in, 'r', encoding='utf8') as file_in: lines = file_in.readlines() with open(file_out, 'wt') as file_out: for line in lines: + file_out.write("effective_date=" + str(predict_date(line)) + ', ') file_out.write("jurisdiction=" + str(predict_state(line)) + '\n') file_out.close() get_jurisdiction('dev-0/in.tsv', 'dev-0/out.tsv') +print("Created dev-0/out.tsv") get_jurisdiction('train/in.tsv', 'train/out.tsv') +print("Created train/out.tsv") get_jurisdiction('test-A/in.tsv', 'test-A/out.tsv') +print("Created test-A/out.tsv") + diff --git a/test-A/out.tsv b/test-A/out.tsv index 6e8cc12..dd816bf 100644 --- a/test-A/out.tsv +++ b/test-A/out.tsv @@ -1,203 +1,203 @@ -jurisdiction=Ohio -jurisdiction=California -jurisdiction=Indiana -jurisdiction=New_York -jurisdiction=Nevada -jurisdiction=Colorado -jurisdiction=Colorado -jurisdiction=California -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=California -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Georgia -jurisdiction=Texas -jurisdiction=California -jurisdiction=Washington -jurisdiction=Alabama -jurisdiction=Florida -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=New_York -jurisdiction=California -jurisdiction=Florida -jurisdiction=New_York -jurisdiction=Washington -jurisdiction=Texas -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Delaware -jurisdiction=Pennsylvania -jurisdiction=California -jurisdiction=California -jurisdiction=New_York -jurisdiction=California -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=California -jurisdiction=Virginia -jurisdiction=Pennsylvania -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Virginia -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=New_Jersey -jurisdiction=Delaware -jurisdiction=Texas -jurisdiction=Massachusetts -jurisdiction=Washington -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Pennsylvania -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=Connecticut -jurisdiction=California -jurisdiction=Texas -jurisdiction=Delaware -jurisdiction=Virginia -jurisdiction=Delaware -jurisdiction=Washington -jurisdiction=Minnesota -jurisdiction=Delaware -jurisdiction=Texas -jurisdiction=Colorado -jurisdiction=Colorado -jurisdiction=Nevada -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=New_Jersey -jurisdiction=New_York -jurisdiction=Florida -jurisdiction=Virginia -jurisdiction=Delaware -jurisdiction=Nevada -jurisdiction=Delaware -jurisdiction=New_Jersey -jurisdiction=Delaware -jurisdiction=Minnesota -jurisdiction=Connecticut -jurisdiction=North_Carolina -jurisdiction=Kansas -jurisdiction=Florida -jurisdiction=Washington -jurisdiction=Oregon -jurisdiction=New_York -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Colorado -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Ohio -jurisdiction=Minnesota -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Connecticut -jurisdiction=Maryland -jurisdiction=Delaware -jurisdiction=Utah -jurisdiction=California -jurisdiction=Utah -jurisdiction=Colorado -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Virginia -jurisdiction=Massachusetts -jurisdiction=Texas -jurisdiction=Massachusetts -jurisdiction=Colorado -jurisdiction=New_York -jurisdiction=Michigan -jurisdiction=Pennsylvania -jurisdiction=New_York -jurisdiction=New_Jersey -jurisdiction=Georgia -jurisdiction=Minnesota -jurisdiction=Ohio -jurisdiction=Oregon -jurisdiction=New_Jersey -jurisdiction=Florida -jurisdiction=Oregon -jurisdiction=Massachusetts -jurisdiction=Ohio -jurisdiction=Minnesota -jurisdiction=Maryland -jurisdiction=Indiana -jurisdiction=California -jurisdiction=Virginia -jurisdiction=Tennessee -jurisdiction=Delaware -jurisdiction=Maryland -jurisdiction=Minnesota -jurisdiction=Ohio -jurisdiction=California -jurisdiction=New_Jersey -jurisdiction=Colorado -jurisdiction=Indiana -jurisdiction=Virginia -jurisdiction=Minnesota -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Louisiana -jurisdiction=Georgia -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=Oregon -jurisdiction=Nevada -jurisdiction=California -jurisdiction=North_Carolina -jurisdiction=California -jurisdiction=Georgia -jurisdiction=California -jurisdiction=New_York -jurisdiction=Alabama -jurisdiction=New_York -jurisdiction=Indiana -jurisdiction=Georgia -jurisdiction=New_Jersey -jurisdiction=Minnesota -jurisdiction=North_Carolina -jurisdiction=Delaware -jurisdiction=Kentucky -jurisdiction=Nevada -jurisdiction=Missouri -jurisdiction=Colorado -jurisdiction=Connecticut -jurisdiction=Delaware -jurisdiction=North_Carolina -jurisdiction=Delaware -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Pennsylvania -jurisdiction=California -jurisdiction=Maryland -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Pennsylvania -jurisdiction=New_York -jurisdiction=Virginia -jurisdiction=Virginia -jurisdiction=Delaware -jurisdiction=Nevada -jurisdiction=Nevada -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Colorado -jurisdiction=Alabama +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Alabama +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Kansas +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=Maryland +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Utah +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Utah +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Michigan +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Maryland +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Tennessee +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Maryland +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Louisiana +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Alabama +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Kentucky +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Maryland +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Alabama diff --git a/train/out.tsv b/train/out.tsv index 1041754..67c3b22 100644 --- a/train/out.tsv +++ b/train/out.tsv @@ -1,254 +1,254 @@ -jurisdiction=Oregon -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=Pennsylvania -jurisdiction=California -jurisdiction=California -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Iowa -jurisdiction=Delaware -jurisdiction=Indiana -jurisdiction=New_York -jurisdiction=Massachusetts -jurisdiction=New_York -jurisdiction=Michigan -jurisdiction=Indiana -jurisdiction=Colorado -jurisdiction=Florida -jurisdiction=New_York -jurisdiction=Oregon -jurisdiction=Pennsylvania -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=Illinois -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Missouri -jurisdiction=Oregon -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Connecticut -jurisdiction=Nevada -jurisdiction=New_York -jurisdiction=Illinois -jurisdiction=Idaho -jurisdiction=Florida -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Minnesota -jurisdiction=Virginia -jurisdiction=California -jurisdiction=California -jurisdiction=Nevada -jurisdiction=New_York -jurisdiction=Washington -jurisdiction=New_York -jurisdiction=Ohio -jurisdiction=Nevada -jurisdiction=Florida -jurisdiction=Delaware -jurisdiction=Texas -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=Virginia -jurisdiction=Wisconsin -jurisdiction=Colorado -jurisdiction=Oregon -jurisdiction=Delaware -jurisdiction=Ohio -jurisdiction=Missouri -jurisdiction=South_Dakota -jurisdiction=New_York -jurisdiction=Indiana -jurisdiction=Minnesota -jurisdiction=Maine -jurisdiction=Kansas -jurisdiction=Delaware -jurisdiction=Illinois -jurisdiction=Indiana -jurisdiction=Massachusetts -jurisdiction=Illinois -jurisdiction=New_Jersey -jurisdiction=California -jurisdiction=California -jurisdiction=Maine -jurisdiction=North_Carolina -jurisdiction=Missouri -jurisdiction=Georgia -jurisdiction=Missouri -jurisdiction=New_York -jurisdiction=Georgia -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Oregon -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Connecticut -jurisdiction=Utah -jurisdiction=Texas -jurisdiction=Delaware -jurisdiction=Ohio -jurisdiction=California -jurisdiction=California -jurisdiction=New_York -jurisdiction=North_Carolina -jurisdiction=Texas -jurisdiction=New_York -jurisdiction=New_Jersey -jurisdiction=Georgia -jurisdiction=Massachusetts -jurisdiction=Texas -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Pennsylvania -jurisdiction=Pennsylvania -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=California -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Oregon -jurisdiction=North_Carolina -jurisdiction=Delaware -jurisdiction=Maryland -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=Massachusetts -jurisdiction=Massachusetts -jurisdiction=New_York -jurisdiction=Missouri -jurisdiction=Virginia -jurisdiction=California -jurisdiction=Virginia -jurisdiction=California -jurisdiction=Alabama -jurisdiction=Wisconsin -jurisdiction=Washington -jurisdiction=New_York -jurisdiction=California -jurisdiction=Illinois -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=California -jurisdiction=Ohio -jurisdiction=Illinois -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Massachusetts -jurisdiction=Massachusetts -jurisdiction=Utah -jurisdiction=Washington -jurisdiction=Texas -jurisdiction=California -jurisdiction=California -jurisdiction=Colorado -jurisdiction=Georgia -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=New_Jersey -jurisdiction=Virginia -jurisdiction=New_York -jurisdiction=Michigan -jurisdiction=Nevada -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=California -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=California -jurisdiction=New_Jersey -jurisdiction=Missouri -jurisdiction=Delaware -jurisdiction=Texas -jurisdiction=New_Jersey -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Missouri -jurisdiction=Delaware -jurisdiction=Nevada -jurisdiction=Florida -jurisdiction=Delaware -jurisdiction=Oregon -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=Texas -jurisdiction=New_Jersey -jurisdiction=Florida -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Delaware -jurisdiction=Oregon -jurisdiction=Washington -jurisdiction=Alabama -jurisdiction=California -jurisdiction=Delaware -jurisdiction=California -jurisdiction=New_York -jurisdiction=Delaware -jurisdiction=Colorado -jurisdiction=Pennsylvania -jurisdiction=New_York -jurisdiction=Indiana -jurisdiction=Delaware -jurisdiction=Pennsylvania -jurisdiction=Massachusetts -jurisdiction=Massachusetts -jurisdiction=New_York -jurisdiction=Ohio -jurisdiction=Illinois -jurisdiction=California -jurisdiction=California -jurisdiction=California -jurisdiction=Oregon -jurisdiction=Texas -jurisdiction=New_York -jurisdiction=Michigan -jurisdiction=Delaware -jurisdiction=California -jurisdiction=Florida -jurisdiction=California -jurisdiction=Ohio -jurisdiction=New_York -jurisdiction=Massachusetts -jurisdiction=Delaware -jurisdiction=Georgia -jurisdiction=New_York -jurisdiction=Massachusetts -jurisdiction=Texas -jurisdiction=New_York -jurisdiction=Pennsylvania -jurisdiction=Michigan -jurisdiction=Washington -jurisdiction=New_York -jurisdiction=Missouri -jurisdiction=California -jurisdiction=California -jurisdiction=California -jurisdiction=Delaware -jurisdiction=Florida -jurisdiction=Ohio -jurisdiction=Delaware -jurisdiction=New_York -jurisdiction=New_York -jurisdiction=Pennsylvania -jurisdiction=New_York -jurisdiction=Illinois -jurisdiction=California -jurisdiction=Florida -jurisdiction=New_York -jurisdiction=Connecticut -jurisdiction=California -jurisdiction=Delaware +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Iowa +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Michigan +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Idaho +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Nevada +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=Wisconsin +effective_date=None, jurisdiction=Colorado +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=South_Dakota +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=Minnesota +effective_date=None, jurisdiction=Maine +effective_date=None, jurisdiction=Kansas +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Indiana +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Maine +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Connecticut +effective_date=None, jurisdiction=Utah +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=New_Jersey +effective_date=None, jurisdiction=Georgia +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Texas +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=Pennsylvania +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Florida +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Oregon +effective_date=None, jurisdiction=North_Carolina +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Maryland +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Missouri +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Virginia +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Alabama +effective_date=None, jurisdiction=Wisconsin +effective_date=None, jurisdiction=Washington +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Massachusetts +effective_date=None, jurisdiction=California +effective_date=None, jurisdiction=Ohio +effective_date=None, jurisdiction=Illinois +effective_date=None, jurisdiction=New_York +effective_date=None, jurisdiction=Delaware +effective_date=None, jurisdiction=Delaware +effective_date=None, 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