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Exhibit (4)
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this "Agreement"), effective May 17,
1999, relates to the proposed exchange of confidential information between
Calpine Corporation, a corporation organized under the laws of the State of
Delaware ("Calpine"), and Cogeneration Corporation of America, a corporation
organized under the laws of the State of Delaware ("CogenAmerica") in connection
with the consideration by Calpine of a possible transaction with CogenAmerica or
any of CogenAmerica's principal shareholders (each a "Possible Transaction").
CogenAmerica and Calpine agree as follows with respect to (i)
confidential information (whether in the form of documents, oral communications
or otherwise) disclosed by CogenAmerica to Calpine in connection with a Possible
Transaction (the "CogenAmerica Information"), and (ii) confidential information
(whether in the form of documents, oral communications or otherwise) disclosed
by Calpine to CogenAmerica in connection with a possible Transaction (the
"Calpine Information"):
1. (a) Subject to the exceptions set forth in Paragraph 3 Calpine
agrees (i) to treat all CogenAmerica Information as the strictly
confidential and proprietary information of CogenAmerica and to not
use the CogenAmerica Information for any purpose other than the
evaluation and performance of a Possible Transaction by Calpine or
disclose CogenAmerica Information to third parties other than to
Calpine's directors, officers, affiliates, agents advisors
(including, without limitation, financial advisors, attorneys and
accountants) and employees (collectively, "Calpine Representatives")
without the prior written permission of CogenAmerica; and (ii) to
not disclose to any person other than to Calpine Representatives
that the CogenAmerica Information has been made available, that
discussions or negotiations are taking place or have taken place
concerning a Possible Transaction, or any of the terms or other
facts with respect to a Possible Transaction, including the status
thereof and the previous discussions and exchange of correspondence
between Calpine and NRG Energy, Inc. ("NRG") relating to
CogenAmerica and NRG's ownership interest in CogenAmerica, without
the prior written permission of CogenAmerica.
(b) Subject to the exceptions set forth in Xxxxxxxxx 0, XxxxxXxxxxxx
agrees (i) to treat all Calpine Information as the strictly
confidential and proprietary information of Calpine and to not use
the Calpine Information for any purpose other than the evaluation
and performance of a Possible Transaction by CogenAmerica or
disclose Calpine Information to third parties other than to
CogenAmerica's directors, officers, affiliates, agents advisors
(including, without limitation, financial advisors, attorneys and
accountants) and employees (collectively, "CogenAmerica
Representatives") without the prior written permission of Calpine;
and (ii) to not disclose to any person other than to CogenAmerica
Representatives that the Calpine Information has been made
available, that discussions or negotiations are taking place or have
taken place concerning a Possible Transaction, or any of the terms
or other facts with respect to a
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Possible Transaction, including the status thereof and the previous
discussions and exchange of correspondence between Calpine and NRG
Energy, Inc. ("NRG") relating to CogenAmerica and NRG's ownership
interest in CogenAmerica, without the prior written permission of
Calpine.
2. Subject to the exceptions set forth in Xxxxxxxxx 0, Xxxxxxx will not
disclose any CogenAmerica Information, and CogenAmerica will not
disclose any Calpine Information, to any Calpine Representatives or
CogenAmerica Representatives, respectively, to whom disclosure is
necessary in connection with the evaluation and performance of a
Possible Transaction. All Calpine Representatives to whom
CogenAmerica Information and other information relating to a
Possible Transaction is made available by Calpine shall be under
confidentiality obligations with Calpine for the benefit of
CogenAmerica consistent with this Agreement. All CogenAmerica
Representatives to whom Calpine Information and other information
relating to a Possible Transaction is made available by CogenAmerica
shall be under confidentiality obligations with CogenAmerica for the
benefit of Calpine consistent with this Agreement.
3. (a) The provisions of Paragraphs 1 and 2 shall not apply to any
CogenAmerica Information which (i) is or becomes publicly known
through no fault of Calpine, (ii) is disclosed to Calpine on a
non-confidential basis by a third party whom Calpine believes after
due inquiry is entitled to disclose it, (iii) Calpine can
demonstrate on the basis of written records was already known to it
on a non-confidential basis prior to receipt from CogenAmerica, or
(iv) subject to Paragraph 3(c), is required to be disclosed by law
or legal process.
(b) The provisions of Paragraphs 1 and 2 shall not apply to any
Calpine Information which (i) is or becomes publicly known through
no fault of CogenAmerica, (ii) is disclosed to CogenAmerica on a
non-confidential basis by a third party whom CogenAmerica believes
after due inquiry is entitled to disclose it, (iii) CogenAmerica can
demonstrate on the basis of written records was already known to it
on a nonconfidential basis prior to receipt from Calpine, or (iv)
subject to Paragraph 3(c), is required to be disclosed by law or
legal process.
(c) In the event that Calpine or any of its representatives, or
CogenAmerica or any of its representatives receive a request or are
required (by deposition, interrogatory, request for documents,
subpoena, civil investigative demand or similar process) to disclose
all or any part of the information protected by this Agreement (the
said party being herein designated as a "Compelled Disclosure
Party"), the Compelled Disclosure Party or its representative as the
case may be, agrees to (i) immediately notify the other party to
this Agreement (the "Protected Party") of the existence, terms and
circumstances surrounding such a request or requirement, (ii)
consult with the Protected Party on the advisability of taking
legally available steps to resist or narrow such request or
requirement, and (iii) assist the Protected Party in seeking a
protective order or other appropriate remedy. In the event that such
protective order or other remedy is not obtained or that the
Protected Party waives compliance with the provisions hereof, (1)
the Compelled Disclosure Party or its representative, as the case
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may be, may disclose to any tribunal only that portion of the
information protected hereunder which it is advised by counsel is
legally required to be disclosed and shall exercise reasonable
efforts to obtain assurance that confidential treatment will be
accorded such and (2) said party shall not be liable for such
disclosure unless disclosure to any such tribunal was caused by or
resulted from a previous disclosure by said party, or any of its
representatives, not permitted by this Agreement.
4. (a) Upon the written request at any time of CogenAmerica, Calpine
agrees that all copies of CogenAmerica Information will be promptly
returned to CogenAmerica and that all copies of any analyses,
compilations, forecasts, studies or other documents based upon or
containing CogenAmerica Information prepared by Calpine, or its
directors, officers, affiliates, agents or employees, will be
promptly destroyed and such destruction will be promptly confirmed
in writing to CogenAmerica.
(b) Upon the written request at any time of Calpine, CogenAmerica
agrees that all copies of Calpine Information will be promptly
returned to Calpine and that all copies of any analyses,
compilations, forecasts. studies or other documents based upon or
containing Calpine Information prepared by CogenAmerica, or its
directors, officers, affiliates, agents or employees, will be
promptly destroyed and such destruction will be promptly confirmed
in writing to Calpine.
5. Calpine and CogenAmerica agree that Calpine Information and
CogenAmerica Information include confidential and proprietary
information and trade secrets. Calpine and CogenAmerica acknowledge
that remedies at law may be inadequate to protect against breach of
this Agreement, and each party hereby agrees that the other party
may seek injunctive relief to prevent disclosure of Calpine
Information and CogenAmerica Information.
6. It is understood that this Agreement does not obligate either
Calpine or CogenAmerica to enter into any further agreement or to
consummate in any way a Possible Transaction. Until the execution by
both parties of a binding written agreement setting forth the terms
and conditions of a Possible Transaction, each party agrees that
either party may withdraw from the negotiations concerning a
Possible Transaction at any time for any reason without any
liability to the other party of any kind whatsoever with respect to
a Possible Transaction.
7. Calpine agrees that, until the earlier of eighteen (18) months from
the date hereof or the closing of a Possible Transaction, unless
such shall have been specifically agreed to in advance by
CogenAmerica, Calpine will not, in any manner, directly or
indirectly, (a) effect or seek, offer or propose (whether publicly
or otherwise) to effect, or cause or participate in or in any way
assist any other person to effect or seek, offer or propose (whether
publicly or otherwise) to effect or participate in, (i) any
acquisition of any securities (or beneficial ownership thereof) or
any material portion of the assets of CogenAmerica or any of its
subsidiaries, (ii) any tender or exchange offer or merger or other
business combination involving CogenAmerica or any of its
subsidiaries, (iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with
respect to CogenAmerica or any of its
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subsidiaries, or (iv) any "Solicitation" of "proxies" (as such terms
are used in the proxy rules of the Securities and Exchange
Commission) or consents to vote any voting securities of
CogenAmerica, (b) form, join or in any way participate in a "group"
(as defined under the Securities Exchange Act of 1934, as amended)
for any of the purposes referred to in Section 7(a), (c) otherwise
act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of
CogenAmerica, (d) take any action which might force CogenAmerica to
make a public announcement regarding any of the types of matters set
forth in (a) above, or (e) enter into any discussions or
arrangements with any third party (other than Calpine
Representatives) with respect to any of the foregoing; provided,
however, that Calpine shall be entitled to make nonpublic proposals
relating to NRG Energy's shareholdings in CogenAmerica and to
discuss the terms thereof with CogenAmerica and CogenAmerica
Representatives and with NRG Energy, Inc. and its directors,
officers, affiliates, agents advisors (including, without
limitation, financial advisors, attorneys and accountants) and
employees. Calpine also agrees during any such period not to request
that CogenAmerica (or its directors, officers, employees or agents),
directly or indirectly, amend or waive any provision of this
paragraph.
8. This Agreement shall be in force and effect for a period of two (2)
years from the date hereof and shall be governed by the laws of the
State of New York, excluding its conflicts of laws rules. This
Agreement may be executed in counterparts which together will
constitute the same instrument. This Agreement may be executed by
manual signature transmitted electronically and any such signature
will be deemed to be a manual execution.
9. EACH OF CALPINE AND COGENAMERICA HEREBY IRREVOCABLY WAIVES ANY
RIGHTS THAT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF ANY
OF THEM RELATING HERETO.
ACCEPTED AND AGREED AS OF THE DATE FIRST WRITTEN ABOVE:
Cogeneration Corporation of America Calpine Corporation
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: President and Chief Executive Officer Title: Senior Vice President
Date: May 17, 1999 Date: May 17, 1999
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