Exhibit B-5
Exhibit G to the Master Separation and Distribution
Agreement
CONFIDENTIAL DISCLOSURE AGREEMENT
CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
ALLEGHENY ENERGY, INC.
AND
[SUPPLY HOLDCO]
CONFIDENTIAL DISCLOSURE AGREEMENT
CONFIDENTIAL DISCLOSURE AGREEMENT (the "Agreement"),
effective ___________, 2001 (the "Effective Date"), between
Allegheny Energy, Inc., a Maryland corporation
("Allegheny") and [__________], a Maryland corporation
("Supply Holdco").
RECITALS
WHEREAS, the Board of Directors of Allegheny has
determined that it is in the best interest of Allegheny and
its stockholders to separate Allegheny's existing businesses
into two independent businesses;
WHEREAS, pursuant to such determination, Allegheny and
Supply Holdco have entered into a Master Separation
Agreement (as defined below), which provides, among other
things, for the separation of Allegheny and Supply Holdco,
the transfer between Allegheny and Supply Holdco of certain
assets and liabilities, the initial public offering of
Supply Holdco common stock, the distribution of such common
stock and the execution and delivery of certain other
agreements in order to facilitate the foregoing; and
WHEREAS, in connection with the foregoing, the parties
desire to enter into this Agreement to provide for the
protection of their Confidential Information (as defined
below).
NOW, THEREFORE, in consideration of the foregoing and
the covenants and agreements set forth below. Allegheny and
Supply Holdco agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following
capitalized terms shall have the meanings specified herein.
Capitalized terms used in this Agreement and not otherwise
defined shall have the meanings for such terms set forth in
the Master Separation Agreement.
"Confidential Information" means any and all documents,
materials, data, and other information (whether oral,
written, electronic or otherwise) relating to a Disclosing
Party that a Receiving Party knows of as of the Separation
Date, that is directly or indirectly disclosed to the
Receiving Party by or on behalf of such Disclosing Party in
connection with any Transaction Agreement, or that the
Receiving Party otherwise comes to know pursuant to its
parent/subsidiary relationship with the Disclosing Party.
Confidential Information of Third Parties that is known to,
in the possession of or acquired by a Receiving Party
pursuant to a relationship with the Disclosing Party shall
be deemed the Disclosing Party's Confidential Information
for purposes of this Agreement. Notwithstanding the
foregoing, Confidential Information shall exclude
information that:
(i) was in the Receiving Party's possession
before receipt from the Disclosing Party and obtained
from a source other than the Disclosing Party and other
than through the prior relationship of the Disclosing
Party and the Receiving Party before the Separation
Date;
(ii) is or becomes a matter of public knowledge
through no fault of the Receiving Party or its
Representatives;
(iii) is rightfully received by the Receiving
Party from a Third Party without a duty of
confidentiality;
(iv) is independently developed by the Receiving
Party; or
(v) is disclosed by the Receiving Party with the
Disclosing Party's prior written approval.
"Confidentiality Period" means, with respect to
Confidential Information, three (3) years after the later of
(a) the Separation Date, with respect to Confidential
Information of the Disclosing Party that is known to or in
the possession of the Receiving Party as of the Separation
Date, or (b) the date of disclosure, with respect to
Confidential Information that is disclosed by the Disclosing
Party to the Receiving Party after the Separation Date.
"Disclosing Party" means the party owning or disclosing
the relevant Confidential Information, being either (a) a
member of the Allegheny Group, or (b) a member of the Supply
Holdco Group, as applicable.
"Master Separation Agreement" means the Master
Separation and Distribution Agreement between Allegheny and
Supply Holdco.
"Receiving Party" means the non-owning party or
recipient of the relevant Confidential Information, being
either (a) a member of the Allegheny Group, or (b) a member
of the Supply Holdco Group, as applicable.
"Representatives" has the meaning set forth in Section 2.2.
"Third Party" means a Person other than Allegheny and
its Subsidiaries and Supply Holdco and its Subsidiaries.
"Transaction Agreements" means the Master Separation
Agreement and the Ancillary Agreements.
ARTICLE II
CONFIDENTIALITY
2.1 Confidentiality Obligations. During the
Confidentiality Period, the Receiving Party shall (i)
protect the Confidential Information of the Disclosing Party
by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use,
dissemination, or publication of the Confidential
Information as Receiving Party uses to protect its own
confidential information of a like nature, and (ii) not
disclose such Confidential Information to any Third Party,
except as expressly permitted under this Agreement, in the
Transaction Agreements or in any other agreements entered
into between the parties in writing, without prior written
consent of the Disclosing Party.
2.2 Disclosure To Representatives. Notwithstanding
the provisions of Section 2.1, the Receiving Party may
disclose the Confidential Information to its Subsidiaries,
and its and their directors, officers, employees, agents,
financing sources, rating agencies, advisors and
representatives ("Representatives"), to the extent such
Representatives need to know such Confidential Information;
provided, however, that the Receiving Party shall inform
each such Representative or sublicensee of the confidential
nature of the Confidential Information, shall require such
Representative or sublicensee to be bound to the terms of
this Agreement to the same extent as if such Representative
or sublicensee was a party hereto, and that the Receiving
Party shall be responsible for any breach of this Agreement
by its Representatives and sublicensees.
2.3 Compelled Disclosure. Notwithstanding anything to
the contrary set forth herein, it is understood that the
Receiving Party may be legally compelled or otherwise
legally obligated to disclose Confidential Information (or
portions thereof) (i) pursuant to subpoena or other court
process; (ii) at the express direction of any other
authorized government agency with jurisdiction over
Receiving Party, or (iii) as otherwise required by law. If
Receiving Party becomes so compelled or obligated to
disclose any of the Confidential Information, Receiving
Party will provide the Disclosing Party with prompt written
notice so that the Disclosing Party may seek a protective
order or other appropriate remedy. If such protective order
or other remedy is not obtained, Receiving Party will
furnish only that portion of the Confidential Information
which, in the opinion of Receiving Party's legal counsel, is
legally required, and Receiving Party will reasonably
cooperate, at the Disclosing Party's expense and request,
with the Disclosing Party's counsel to enable the Disclosing
Party to obtain a protective order or other reliable
assurance that confidential treatment will be accorded the
Confidential Information.
2.4 No Restriction On Disclosing Party. Nothing in
this Agreement shall restrict the Disclosing Party from
using, disclosing, or disseminating its own Confidential
Information in any way.
2.5 No Restriction On Reassignment. This Agreement
shall not restrict reassignment of the Receiving Party's
employees.
2.6 Third Party Restrictions. Nothing in this
Agreement supersedes any restriction imposed by Third
Parties on their Confidential Information, and there is no
obligation on the Disclosing Party to conform Third Party
agreements to the terms of this Agreement.
ARTICLE III
WARRANTY DISCLAIMER
EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL
CONFIDENTIAL INFORMATION IS PROVIDED ON AN "AS IS, WHERE IS"
BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES HAS
MADE OR WILL MAKE ANY WARRANTY WHATSOEVER, EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, ENFORCEABILITY OR NON-INFRINGEMENT.
ARTICLE IV
DISPUTE RESOLUTION
4.1 Dispute Resolution. Any dispute or claim arising
out of or related to this Agreement shall be resolved in
accordance with the dispute resolutions procedures set forth
in Section 6.7 of the Master Separation Agreement.
4.2 Proceedings. Notwithstanding the provisions of
Section 4.1, the parties hereto each acknowledge that any
violation of this Agreement in respect of any Confidential
Information will cause the Disclosing Party and its
affiliates immediate and irreparable harm that monetary
damages cannot adequately remedy, and the parties agree
that, upon any actual or impending violation of this
Agreement, the Disclosing Party shall be entitled to
equitable relief, including injunctive relief and specific
performance (and the Receiving Party shall not plead in
defense thereto that there would be an adequate remedy at
law), without bond or proof of damages, and in addition to
any other remedies that the Disclosing Party may have under
applicable law. In the event of litigation relating to this
Agreement, if a court of competent jurisdiction determines
that Receiving Party or any of its Representatives has
breached this Agreement, Receiving Party shall be liable and
pay to the Disclosing Party the reasonable legal fees and
costs incurred with such litigation, including any appeal
therefrom.
ARTICLE V
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES BE
LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES FOR ANY
SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE
DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF
THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Suits. Neither party shall have any obligation
hereunder to institute any action or suit against Third
Parties for misappropriation of any of its Confidential
Information or to defend any action or suit brought by a
Third Party that alleges infringement of any intellectual
property rights by the Receiving Party's authorized use of
the Disclosing Party's Confidential Information.
6.2 Entire Agreement. This Agreement, the Master
Separation Agreement and the other Ancillary Agreements
constitute the entire agreement between the parties with
respect to the subject matter hereof and shall supersede all
prior written and oral and all contemporaneous oral
agreements and understandings with respect to the subject
matter hereof. Notwithstanding the foregoing, the parties
agree that any agreements entered into between them on or
after the Separation Date for the protection of specific
Confidential Information shall supersede the terms of this
Agreement with respect to such Confidential Information.
6.3 Governing Law. This Agreement shall be governed
by and construed and enforced in accordance with the laws of
the State of Maryland as to all matters regardless of the
laws that might otherwise govern under principles of
conflicts of laws applicable thereto.
6.4 Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
6.5 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have
been duly given when delivered in person, by telecopy with
answer back, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges
prepaid), or by registered or certified mail (postage
prepaid, return receipt requested) as follows:
if to Allegheny, to:
Allegheny Energy, Inc.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
if to Supply Holdco, to:
[ ]
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as the party to whom notice is
given may have previously furnished to the other in writing
in the manner set forth above. Any notice or communication
delivered in person shall be deemed effective on delivery.
Any notice or communication sent by telecopy or by air
courier shall be deemed effective on the first Business Day
following the day on which such notice or communication was
sent. Any notice or communication sent by registered or
certified mail shall be deemed effective on the third
Business Day following the day on which such notice or
communication was mailed. As used in this Section 6.5,
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banking institutions located in the State
of Maryland are authorized or obligated by law or executive
order to close.
6.6 Nonassignability. Neither party may, directly or
indirectly, in whole or in part, whether by operation of law
or otherwise, assign or transfer this Agreement, without the
other party's prior written consent, and any attempted
assignment, transfer or delegation without such prior
written consent shall be voidable at the sole option of such
other party. Notwithstanding the foregoing, each party (or
its permitted successive assignees or transferees hereunder)
may assign or transfer this Agreement as a whole without
consent to a Person that succeeds to all or substantially
all of the business or assets of such party. Without
limiting the foregoing, this Agreement will be binding upon
and inure to the benefit of the parties and their permitted
successors and assigns.
6.7 Severability. If any term or other provision of
this Agreement is determined by a nonappealable decision of
a court, administrative agency or binding arbitrator by any
court or in any binding arbitration to be invalid, illegal
or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any
manner materially adverse to either party. Upon such
determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the
fullest extent possible.
6.8 Failure Or Indulgence Not Waiver; Remedies
Cumulative. No failure or delay on the part of either party
hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty
or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further
exercise thereof or of any other right. All rights and
remedies existing under this Agreement are cumulative to,
and not exclusive of, any rights or remedies otherwise
available.
6.9 Amendment. No change or amendment will be made to
this Agreement except by an instrument in writing signed on
behalf of each of the parties to such agreement.
6.10 Counterparts. This Agreement may be executed in
two or more counterparts, all of which, taken together,
shall be considered to be one and the same instrument.
WHEREFORE, the parties have signed this Confidential
Disclosure Agreement effective as of the date first set
forth above.
ALLEGHENY ENERGY, INC. [_____________________________]
By: ______________________ By: __________________________
Name: Name:
Title: Title:
