EXHIBIT 27
CONFIDENTIALITY AGREEMENT
THIS AGREEMENT is made and entered into as of the 6th day of May, 1997, by
and between NEW YORK STATE ELECTRIC & GAS CORPORATION ("NYSEG") , a New York
corporation having its principal place of business at Ithaca-Xxxxxx Road (no
street number), Xxxxxx, Xxx Xxxx 00000, and CALENERGY COMPANY, INC.
("CalEnergy"), having its principal place of business at 000 Xxxxx 00xx Xx.,
Xxxxx 000, Xxxxx, Xxxxxxxx 00000-0000.
WITNESSETH:
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CalEnergy wishes to disclose to NYSEG certain information which CalEnergy
deems to be CalEnergy's confidential, proprietary and trade secret information
with respect to matters relating to [*] and other potential natural gas users
(the "Project"); and
WHEREAS, NYSEG wishes to disclose to CalEnergy certain information which
NYSEG deems to be NYSEG's confidential, proprietary and trade secret information
with respect to the prices, other costs and issues relative to the potentiality
that NYSEG or CalEnergy (either jointly or separately) may provide natural gas
transportation service for the Project; and
WHEREAS, both parties are willing to receive such information from the
other under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
with each other, for themselves, their successors and assigns, as follows:
1. "Information" shall mean all information furnished by one party or its
affiliates to the other party or its affiliates, whether furnished before or
after the date hereof, and regardless of the manner in which it is furnished,
together with all copies, reproductions, summaries, analyses or extracts thereof
or based thereon in the possession of a party or in the possession of any
representative of a party.
2. Unless otherwise agreed to in writing by the transmitting party, the
receiving party shall (a) keep all Information confidential and not disclose or
reveal any Information to any person other than the receiving party's employees,
advisors, attorneys or accountants who are involved in the Project, and have a
reasonable "need-to-know" such information, (b) inform the transmitting party
of the identity of all such persons (other than the receiving party's
employees) and cause them to agree in writing to comply with the terms of this
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* Confidential treatment has been requested pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
Agreement, and (c) not use Information for any purpose other than in connection
with the evaluation of the Project or transactions associated therewith. The
receiving party will be responsible for any breach of the terms hereunder by
it or by its Employees, advisors or representatives.
3. This Agreement shall terminate two (2) years from the date first above
written; provided, however that either party may terminate this Agreement
earlier by giving ten (10) days prior written notice of termination to the other
party. No termination of this Agreement shall affect a party's obligations
hereunder with respect to Information disclosed to it prior to such termination.
This Paragraph, and all obligations of the parties under this Agreement, shall
survive such termination.
4. The parties may copy the Information to the extent necessary for it to
complete the purpose specified in Paragraph 2 above.
5. Neither party's confidentiality obligations hereunder shall apply to
any portion of the Information which:
(a) has become a matter of public knowledge other than through an act
or omission of the receiving party;
(b) has been made known to the receiving party by a third party in
accordance with such third party's legal rights without any restriction on
disclosure;
(c) was in the receiving party's possession prior to the disclosure
thereof by the other party hereunder and was not acquired by the receiving
party directly or indirectly from the other party or any person or entity
in a relationship of trust and confidence with the transmitting party with
respect to such Information; or
(d) The party is required by law to disclose.
6. The receiving party shall return or destroy the Information (including
all copies thereof) at the transmitting party's discretion promptly upon the
earlier of (a) any termination of this Agreement and (b) upon completion of the
purpose specified in Paragraph 2 above.
7. This Agreement shall not be deemed to grant any rights with respect to
the Information other than those expressly set forth herein and shall not be
deemed to grant any license whatsoever with respect to any patents, inventions,
copyrights, trademarks or trade secrets contained in said Information.
8. Any notice by either party under this Agreement shall be sufficiently
given if in writing and mailed by certified mail,
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return receipt requested, addressed to the party to be notified at the address
set forth below or at such other address as the party to be notified may from
time to time designate by giving notice thereof in writing. Notice shall be
complete upon such mailing except in the case of a notice to change an address
in which case notice shall be complete when the notice is received by the
addressee.
To NYSEG: New York State Electric
& Gas Corporation
0000 Xxxxxx Xxxx. Xxxx, X.X. Xxx 0000
Binghamton, New York 13902-3607
ATTN: Xxxxxxx X. German
To CalEnergy: CalEnergy Company, Inc.
000 Xxxxx 00xx Xx.
Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
ATTN: X. Xxxxxxx Divine
9. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the Project and sets forth the entire
understanding of said parties with respect thereto and may not be changed or
terminated orally, and no attempted change, termination or waiver of any of the
provisions hereof shall be binding unless in writing and signed by both of the
parties hereto.
10. Neither party shall assign or transfer this Agreement, or its rights
or obligations hereunder, without the prior written consent of the other party,
which consent shall not be unreasonably withheld. Any act in derogation of the
foregoing shall be null and void.
11. This Agreement shall be governed by and construed in accordance with
the law of the State of New York, exclusive of its choice of law rules.
12. The parties to this Agreement hereby submit and consent to the
exclusive jurisdiction of the Federal District Courts for the Southern District
of New York and for the Northern District of New York, in any action brought to
enforce (or otherwise relating to) this Agreement. In addition, said parties
hereby agree that venue shall be proper in each of said courts. Each party
irrevocably waives any objection that it now has, or that it may have in the
future, to such jurisdiction and venue.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
NEW YORK STATE ELECTRIC & GAS
CORPORATION
WITNESS:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. German
---------------------------- ---------------------------
Xxxxxxx X. German
Title: Senior Vice President,
as Business Unit
CALENERGY COMPANY, INC.
WITNESS: By: /S/ X. Xxxxxxx Divine
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X. Xxxxxxx Divine
/s/ Xxxxxxx X. Xxxxx Title: Vice President, Strategic
-------------------- Planning
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XXXXX XX XXX XXXX :
: ss.:
COUNTY OF XXXXXX :
On the 7th day of May, 1997, before me personally came Xxxxxxx X. German,
to me known, who, being by me duly sworn, did depose and say that he resides in
Chenango Bridge, New York, that he is the Senior Vice President, Gas Business
Unit of NEW YORK STATE ELECTRIC & GAS CORPORATION, the corporation described in
and which executed the above instrument, and that he signed his name thereto by
authority of the board of directors of said corporation.
/S/ Xxxxx X. Xxxxxxxx
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Notary Public
[NOTARIAL SEAL]
STATE OF NEBRASKA :
: ss.:
COUNTY OF XXXXXXX :
On the 9th day of May, 1997, before me personally came X. Xxxxxxx Divine,
to me known, who, being by me duly sworn, did depose and say that he resides in
Omaha, Nebraska, that he is the Vice President, Strategic Planning of CalEnergy
Company, Inc., the corporation described in and which executed the above
instrument, and that he signed his name thereto by authority of the board of
directors of said corporation.
/s/ Xxxxxxxx Xxxxxxxxx
-----------------------------
Notary Public
[NOTARIAL SEAL]
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