{"id":43371,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/confidential-disclosure-agreement-southern-co-and-southern.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"confidential-disclosure-agreement-southern-co-and-southern","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/confidential-disclosure-agreement-southern-co-and-southern.html","title":{"rendered":"Confidential Disclosure Agreement &#8211; Southern Co. and Southern Energy Inc."},"content":{"rendered":"<pre>\n                                     FORM OF\n\n\n                        CONFIDENTIAL DISCLOSURE AGREEMENT\n\n\n                                     BETWEEN\n\n\n                              THE SOUTHERN COMPANY\n\n\n                                       AND\n\n\n                              SOUTHERN ENERGY, INC.\n\n\n\n   2\n\n\n                        CONFIDENTIAL DISCLOSURE AGREEMENT\n\n         This Confidential Disclosure Agreement (the \"Agreement\") is effective\nas of September 1, 2000 (the \"Effective Date\"), between The Southern Company, a\nDelaware corporation (\"Southern\"), having an office at 270 Peachtree Street,\nN.W., Atlanta, Georgia 30303 and Southern Energy, Inc., a Delaware corporation\n(\"Southern Energy\"), having an office at 900 Ashwood Parkway, Suite 500,\nAtlanta, Georgia 30338.\n\n         WHEREAS, the Board of Directors of Southern has determined that it is\nin the best interest of Southern and its stockholders to separate Southern's\nexisting businesses into two independent businesses;\n\n         WHEREAS, as part of the foregoing, Southern and Southern Energy have\nentered into a Master Separation Agreement (as defined below), which provides,\namong other things, for the separation of Southern and Southern Energy, the\ntransfer between Southern and Southern Energy of certain assets and liabilities,\nthe initial public offering of Southern Energy stock, the distribution of such\nstock and the execution and delivery of certain other agreements in order to\nfacilitate and provide for the foregoing; and\n\n         WHEREAS, also as part of the foregoing, the parties further desire to\nenter into this Agreement to provide for the protection of their Confidential\nInformation (as defined below).\n\n         NOW, THEREFORE, in consideration of the mutual promises of the parties,\nand of good and valuable consideration, it is agreed by and between the parties\nas follows:\n\n                                    ARTICLE I\n\n\n                                   DEFINITIONS\n\n         For the purpose of this Agreement the following capitalized terms are\ndefined in this Article I and shall have the meanings specified herein.\nCapitalized terms used herein and not otherwise defined shall have the meanings\nfor such terms set forth in the Master Separation Agreement.\n\n         1.1      Ancillary Agreements. \"Ancillary Agreements\" means the items\nand agreements listed in Section 2.1 of the Master Separation Agreement and all\nagreements and documents contemplated by such agreements.\n\n         1.2      Confidential Information.\n\n         (a)      \"Confidential Information\" means any and all documents,\nmaterials, data, and other information (whether oral, written, electronic or\notherwise) relating to a Disclosing Party that a Receiving Party knows of as of\nthe Separation Date, that is directly or\n\n   3\n\n\nindirectly disclosed to the Receiving Party by or on behalf of such Disclosing\nParty in connection with any Transaction Agreement, or that the Receiving Party\notherwise comes to know pursuant to its parent\/subsidiary relationship with the\nDisclosing Party.\n\n         (b)      Confidential Information of Third Parties that is known to, in\nthe possession of or acquired by a Receiving Party pursuant to a relationship\nwith the Disclosing Party shall be deemed the Disclosing Party's Confidential\nInformation for purposes herein.\n\n         (c)      Notwithstanding the foregoing provisions of this Section 1.2,\nConfidential Information shall exclude information that: (i) was in the\nReceiving Party's possession before receipt from the Disclosing Party and\nobtained from a source other than the Disclosing Party and other than through\nthe prior relationship of the Disclosing Party and the Receiving Party before\nthe Separation Date; (ii) is or becomes a matter of public knowledge through no\nfault of the Receiving Party or its Representatives; (iii) is rightfully\nreceived by the Receiving Party from a Third Party without a duty of\nconfidentiality; (iv) is independently developed by the Receiving Party; or (v)\nis disclosed by the Receiving Party with the Disclosing Party's prior written\napproval.\n\n         1.3      Confidentiality Period. \"Confidentiality Period\" means, with\nrespect to Confidential Information, three (3) years after either (A) the\nSeparation Date with respect to Confidential Information of the Disclosing Party\nthat is known to or in the possession of the Receiving Party as of the\nSeparation Date or (B) the date of disclosure with respect to Confidential\nInformation that is disclosed by the Disclosing Party to the Receiving Party\nafter the Separation Date.\n\n         1.4      Disclosing Party. \"Disclosing Party\" means the party owning or\ndisclosing the relevant Confidential Information, being either (a) a member of\nthe Southern Group, or (b) a member of the Southern Energy Group, as applicable.\n\n         1.5      Distribution Date. \"Distribution Date\" has the meaning set\nforth in the Master Separation Agreement.\n\n         1.6      Master Separation Agreement. \"Master Separation Agreement\"\nmeans the Master Separation and Distribution Agreement between the parties.\n\n         1.7      Receiving Party. \"Receiving Party\" means the non-owning party\nor recipient of the relevant Confidential Information, being either (a) a member\nof the Southern Group, or (b) a member of the Southern Energy Group, as\napplicable.\n\n         1.8      Representative. \"Representative\" has the meaning set forth in\nSection 2.2.\n\n         1.9      Separation Date. \"Separation Date\" means as of 12:01 a.m.,\nEastern Standard Time, September 1, 2000 or such other date as may be determined\nby Southern.\n\n\n                                       2\n   4\n\n\n         1.10     Third Party. \"Third Party\" means a Person other than Southern\nand its Subsidiaries and Affiliated Companies and Southern Energy and its\nSubsidiaries and Affiliated Companies.\n\n         1.11     Transaction Agreements. \"Transaction Agreements\" means the\nMaster Separation Agreement and the Ancillary Agreements.\n\n                                   ARTICLE II\n\n                                 CONFIDENTIALITY\n\n         2.1      Confidentiality Obligations. During the Confidentiality\nPeriod, the Receiving Party shall (i) protect the Confidential Information of\nthe Disclosing Party by using the same degree of care, but no less than a\nreasonable degree of care, to prevent the unauthorized use, dissemination, or\npublication of the Confidential Information as Receiving Party uses to protect\nits own confidential information of a like nature, and (ii) not disclose such\nConfidential Information to any Third Party, except as expressly permitted under\nthis Agreement, in the Transaction Agreements or in any other agreements entered\ninto between the parties in writing, without prior written consent of the\nDisclosing Party.\n\n         2.2      Disclosure To Representatives; Sublicensees. Notwithstanding\nthe provisions of Section 2.1, the Receiving Party may disclose the Confidential\nInformation to its Subsidiaries and Affiliated Companies, and its and their\ndirectors, officers, employees, partners, affiliates, agents, financing sources,\nrating agencies, advisors and representatives (\"Representatives\"), to the extent\nsuch Representatives need to know such Confidential Information, and may\ndisclose to its sublicensees permitted under a Transaction Agreement portions of\nConfidential Information as reasonably necessary in the exercise of the\nReceiving Party's sublicense rights under such Transaction Agreement; provided,\nhowever, that the Receiving Party shall inform each such Representative or\nsublicensee of the confidential nature of the Confidential Information, shall\nrequire such Representative or sublicensee to be bound to the terms of this\nAgreement to the same extent as if such Representative or sublicensee was a\nparty hereto, and that the Receiving Party shall be responsible for any breach\nof this Agreement by its Representatives and sublicensees.\n\n         2.3      Compelled Disclosure. Notwithstanding anything to the contrary\nset forth herein, it is understood that the Receiving Party may be legally\ncompelled or otherwise legally obligated to disclose Confidential Information\n(or portions thereof) (i) pursuant to subpoena or other court process; (ii) at\nthe express direction of any other authorized government agency with\njurisdiction over Receiving Party, or (iii) as otherwise required by law. If\nReceiving Party becomes so compelled or obligated to disclose any of the\nConfidential Information, Receiving Party will provide the Disclosing Party with\nprompt written notice so that the Disclosing Party may seek a protective order\nor other appropriate remedy. If such protective order or other remedy is not\nobtained, Receiving\n\n\n                                       3\n   5\n\n\nParty will furnish only that portion of the Confidential Information which, in\nthe opinion of Receiving Party's legal counsel, is legally required, and\nReceiving Party will reasonably cooperate, at the Disclosing Party's expense and\nrequest, with the Disclosing Party's counsel to enable the Disclosing Party to\nobtain a protective order or other reliable assurance that confidential\ntreatment will be accorded the Confidential Information.\n\n         2.4      No Restriction On Disclosing Party. Nothing in this Agreement\nshall restrict the Disclosing Party from using, disclosing, or disseminating its\nown Confidential Information in any way.\n\n         2.5      No Restriction On Reassignment. This Agreement shall not\nrestrict reassignment of the Receiving Party's employees.\n\n         2.6      Third Party Restrictions. Nothing in the Agreement supersedes\nany restriction imposed by Third Parties on their Confidential Information, and\nthere is no obligation on the Disclosing Party to conform Third Party agreements\nto the terms of this Agreement.\n\n                                   ARTICLE III\n\n                               WARRANTY DISCLAIMER\n\n         EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL CONFIDENTIAL INFORMATION IS\nPROVIDED ON AN \"AS IS, WHERE IS\" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS\nSUBSIDIARIES OR AFFILIATED COMPANIES HAS MADE OR WILL MAKE ANY WARRANTY\nWHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY\nIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,\nENFORCEABILITY OR NON-INFRINGEMENT.\n\n                                   ARTICLE IV\n\n                               DISPUTE RESOLUTION\n\n         4.1      Dispute Resolution. Any dispute or claim arising out of or\nrelated to this Agreement shall be resolved in accordance with the dispute\nresolutions procedures set forth in Section 5.7 of the Master Separation\nAgreement.\n\n         4.2      Proceedings. Notwithstanding the provisions of Section 4.1,\nthe parties hereto each acknowledge that any violation of this Agreement in\nrespect of any Confidential Information will cause the Disclosing Party and its\naffiliates immediate and irreparable harm that monetary damages cannot\nadequately remedy, and parties agree that, upon any actual or impending\nviolation of this Agreement, the Disclosing Party or any one or more\n\n\n                                       4\n   6\n\n\nof its Affiliated Companies shall be entitled to equitable relief, including\ninjunctive relief and specific performance (and the Receiving Party shall not\nplead in defense thereto that there would be an adequate remedy at law), without\nbond or proof of damages, and in addition to any other remedies that the\nDisclosing Party may have under applicable law. In the event of litigation\nrelating to this Agreement, if a court of competent jurisdiction determines that\nReceiving Party or any of its Representatives has breached this Agreement,\nReceiving Party shall be liable and pay to the Disclosing Party the reasonable\nlegal fees and costs incurred with such litigation, including any appeal\ntherefrom.\n\n                                    ARTICLE V\n\n                             LIMITATION OF LIABILITY\n\n         IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES, AFFILIATED\nCOMPANIES, DIRECTORS, OFFICERS OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR ITS\nSUBSIDIARIES OR AFFILIATED COMPANIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT,\nINCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY\nOF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT,\nWHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.\n\n                                   ARTICLE VI\n\n                            MISCELLANEOUS PROVISIONS\n\n         6.1      Suits. Neither party shall have any obligation hereunder to\ninstitute any action or suit against Third Parties for misappropriation of any\nof its Confidential Information or to defend any action or suit brought by a\nThird Party that alleges infringement of any intellectual property rights by the\nReceiving Party's authorized use of the Disclosing Party's Confidential\nInformation.\n\n         6.2      Entire Agreement. This Agreement, the Master Separation\nAgreement and the other Ancillary Agreements constitute the entire agreement\nbetween the parties with respect to the subject matter hereof and shall\nsupersede all prior written and oral and all contemporaneous oral agreements and\nunderstandings with respect to the subject matter hereof. Notwithstanding the\nforegoing, the parties agree that any agreements entered into between them on or\nafter the Separation Date for the protection of specific Confidential\nInformation shall supersede the terms of this Agreement with respect to such\nConfidential Information.\n\n         6.3      Governing Law. This Agreement shall be governed by and\nconstrued and enforced in accordance with the laws of the State of Georgia as to\nall matters regardless\n\n\n                                       5\n   7\n\n\nof the laws that might otherwise govern under principles of conflicts of laws\napplicable thereto.\n\n         6.4      Descriptive Headings. The descriptive headings herein are\ninserted for convenience of reference only and are not intended to be part of or\nto affect the meaning or interpretation of this Agreement.\n\n         6.5      Notices. All notices and other communications hereunder shall\nbe in writing and shall be deemed to have been duly given when delivered in\nperson, by telecopy with answer back, by express or overnight mail delivered by\na nationally recognized air courier (delivery charges prepaid), or by registered\nor certified mail (postage prepaid, return receipt requested) as follows:\n\n         if to Southern:\n\n           c\/o The Southern Company\n           270 Peachtree Street\n           Atlanta, Georgia 30303\n           Attention: General Counsel\n           Telecopy:  (404) 506-0564\n\n\n         if to Southern Energy:\n\n           c\/o Southern Energy, Inc.\n           900 Ashwood Parkway, Suite 500\n           Atlanta, Georgia 30338\n           Attention: General Counsel\n           Telecopy:  (770) 821-6767\n\nor to such other address as the party to whom notice is given may have\npreviously furnished to the other in writing in the manner set forth above. Any\nnotice or communication delivered in person shall be deemed effective on\ndelivery. Any notice or communication sent by telecopy or by air courier shall\nbe deemed effective on the first Business Day following the day on which such\nnotice or communication was sent. Any notice or communication sent by registered\nor certified mail shall be deemed effective on the third Business Day following\nthe day on which such notice or communication was mailed. As used in this\nSection 6.5, \"Business Day\" means any day other than a Saturday, a Sunday or a\nday on which banking institutions located in the State of Georgia are authorized\nor obligated by law or executive order to close.\n\n         6.6      Nonassignability. Neither party may, directly or indirectly,\nin whole or in part, whether by operation of law or otherwise, assign or\ntransfer this Agreement, without the other party's prior written consent, and\nany attempted assignment, transfer or delegation without such prior written\nconsent shall be voidable at the sole option of such other party.\nNotwithstanding the foregoing, each party (or its permitted successive assignees\nor\n\n\n                                       6\n   8\n\n\ntransferees hereunder) may assign or transfer this Agreement as a whole\nwithout consent to a Person that succeeds to all or substantially all of the\nbusiness or assets of such party. Without limiting the foregoing, this Agreement\nwill be binding upon and inure to the benefit of the parties and their permitted\nsuccessors and assigns.\n\n         6.7      Severability. If any term or other provision of this Agreement\nis determined by a nonappealable decision of a court, administrative agency or\nbinding arbitrator by any court or in any binding arbitration to be invalid,\nillegal or incapable of being enforced by any rule of law or public policy, all\nother conditions and provisions of this Agreement shall nevertheless remain in\nfull force and effect so long as the economic or legal substance of the\ntransactions contemplated hereby is not affected in any manner materially\nadverse to either party. Upon such determination that any term or other\nprovision is invalid, illegal or incapable of being enforced, the parties hereto\nshall negotiate in good faith to modify this Agreement so as to effect the\noriginal intent of the parties as closely as possible in an acceptable manner to\nthe end that the transactions contemplated hereby are fulfilled to the fullest\nextent possible.\n\n         6.8      Failure Or Indulgence Not Waiver; Remedies Cumulative. No\nfailure or delay on the part of either party hereto in the exercise of any right\nhereunder shall impair such right or be construed to be a waiver of, or\nacquiescence in, any breach of any representation, warranty or agreement herein,\nnor shall any single or partial exercise of any such right preclude other or\nfurther exercise thereof or of any other right. All rights and remedies existing\nunder this Agreement are cumulative to, and not exclusive of, any rights or\nremedies otherwise available.\n\n         6.9      Amendment. No change or amendment will be made to this\nAgreement except by an instrument in writing signed on behalf of each of the\nparties to such agreement.\n\n         6.10     Counterparts. This Agreement may be executed in two or more\ncounterparts, all of which, taken together, shall be considered to be one and\nthe same instrument.\n\n\n                                       7\n   9\n\n\n         WHEREFORE, the parties have signed this Confidential Disclosure\nAgreement effective as of the date first set forth above.\n\n\nTHE SOUTHERN COMPANY                       SOUTHERN ENERGY, INC.\n\n\n\nBy:                                        By: \n   ---------------------------------          ----------------------------------\nName:  H. Allen Franklin                   Name:  S. Marce Fuller\nTitle: President and Chief Operating       Title: President and Chief Executive\n         Officer                                    Officer\n\n\n                                       8\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8237,8872],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9622,9628],"class_list":["post-43371","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mirant-corp","corporate_contracts_companies-southern-co","corporate_contracts_industries-utilities__electric","corporate_contracts_types-planning","corporate_contracts_types-planning__separation"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43371","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43371"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43371"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43371"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43371"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}