1
EXHIBIT 10.5
FORM OF
CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN
THE SOUTHERN COMPANY
AND
SOUTHERN ENERGY, INC.
2
CONFIDENTIAL DISCLOSURE AGREEMENT
This Confidential Disclosure Agreement (the "Agreement") is effective
___________, 2000 (the "Effective Date"), between The Southern Company, a
Delaware corporation ("Southern"), having an office at 000 Xxxxxxxxx Xxxxxx,
X.X., Xxxxxxx, Xxxxxxx 00000 and Southern Energy, Inc., a Delaware corporation
("Southern Energy"), having an office at 000 Xxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000.
WHEREAS, the Board of Directors of Southern has determined that it is
in the best interest of Southern and its stockholders to separate Southern's
existing businesses into two independent businesses;
WHEREAS, as part of the foregoing, Southern and Southern Energy have
entered into a Master Separation Agreement (as defined below), which provides,
among other things, for the separation of Southern and Southern Energy, the
transfer between Southern and Southern Energy of certain assets and liabilities,
the initial public offering of Southern Energy stock, the distribution of such
stock and the execution and delivery of certain other agreements in order to
facilitate and provide for the foregoing; and
WHEREAS, also as part of the foregoing, the parties further desire to
enter into this Agreement to provide for the protection of their Confidential
Information (as defined below).
NOW, THEREFORE, in consideration of the mutual promises of the parties,
and of good and valuable consideration, it is agreed by and between the parties
as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined in this Article I and shall have the meanings specified herein.
Capitalized terms used herein and not otherwise defined shall have the meanings
for such terms set forth in the Master Separation Agreement.
1.1 Ancillary Agreements. "Ancillary Agreements" means the items and
agreements listed in Section 2.1 of the Master Separation Agreement and all
agreements and documents contemplated by such agreements.
1.2 Confidential Information.
(a) "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.
3
(b) 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 herein.
(c) Notwithstanding the foregoing provisions of this Section 1.2,
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.
1.3 Confidentiality Period. "Confidentiality Period" means, with
respect to Confidential Information, three (3) years after either (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.
1.4 Disclosing Party. "Disclosing Party" means the party owning or
disclosing the relevant Confidential Information, being either (a) a member of
the Southern Group, or (b) a member of the Southern Energy Group, as applicable.
1.5 Distribution Date. "Distribution Date" has the meaning set forth in
the Master Separation Agreement.
1.6 Master Separation Agreement. "Master Separation Agreement" means
the Master Separation and Distribution Agreement between the parties.
1.7 Receiving Party. "Receiving Party" means the non-owning party or
recipient of the relevant Confidential Information, being either (a) a member
of the Southern Group, or (b) a member of the Southern Energy Group, as
applicable.
1.8 Representative. "Representative" has the meaning set forth in
Section 2.2.
1.9 Separation Date. "Separation Date" means [12:01 a.m., Eastern
Standard Time, July 1, 2000] or such other date as may be determined by
Southern.
2
4
1.10 Third Party. "Third Party" means a Person other than Southern and
its Subsidiaries and Affiliated Companies and Southern Energy and its
Subsidiaries and Affiliated Companies.
1.11 Transaction Agreements. "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; Sublicensees. Notwithstanding the
provisions of Section 2.1, the Receiving Party may disclose the Confidential
Information to its Subsidiaries and Affiliated Companies, and its and their
directors, officers, employees, partners, affiliates, agents, financing sources,
rating agencies, advisors and representatives ("Representatives"), to the extent
such Representatives need to know such Confidential Information, and may
disclose to its sublicensees permitted under a Transaction Agreement portions of
Confidential Information as reasonably necessary in the exercise of the
Receiving Party's sublicense rights under such Transaction Agreement; 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
3
5
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 the 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 OR AFFILIATED COMPANIES 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 5.7 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 parties agree that, upon any actual or impending
violation of this Agreement, the Disclosing Party or any one or more of its
Affiliated Companies 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
4
6
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 OR AFFILIATED
COMPANIES BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES OR AFFILIATED
COMPANIES 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 Georgia 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:
5
7
if to Southern:
c/o The Southern Company
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
if to Southern Energy:
c/o Southern Energy, Inc.
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
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 Georgia 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
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.
THE SOUTHERN COMPANY SOUTHERN ENERGY, INC.
By: By:
--------------------------- ------------------------------
Name: Name:
Title: Title:
7
