Exhibit 10.35
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement, entered into as of October 3,
1997, is executed by NRG Generating (U.S.) Inc. ("NRGG"), a
corporation organized under the laws of the State of Delaware,
the address of which is set forth at the end of this Agreement,
and NRG Energy, Inc. ("Energy"), a corporation organized under
the laws of the State of Delaware, the address of which is set
forth at the end of this Agreement. NRGG and Energy are referred
to individually as a "Party" and collectively as the "Parties."
RECITALS
A. The Parties are both party to that certain Co-Investment
Agreement, dated as of April 30, 1996 (the "Co-Investment
Agreement"), pursuant to which they will be potentially
investing together in projects.
B. The Parties, for their mutual benefit and in furtherance of
these projects, may exchange Confidential Information (as
defined below) in the course of their relationship.
C. The Parties which to define their respective rights and
obligations with respect to such Confidential Information.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants contained
herein, the Parties agree as follows:
19. As used herein, the term "Confidential Information" means
information which is of a non-public, proprietary or
confidential nature to the disclosing Party, including all
reports and analyses, technical and economic data, studies,
forecasts, trade secrets, research or business strategies,
financial or contractual proposals or information or other
written or oral information. Confidential Information may
be in any form whatsoever, including writings, computer
programs, logic diagrams, component specifications, drawings
or other media. All information disclosed by either Party
to the other, whether orally (provided, however, that
information disclosed orally must be reduced to written form
and marked confidential within five business days), in
writing, by inspection or otherwise, shall be deemed to be
Confidential Information unless otherwise expressly agreed
in writing by the Party disclosing such information, or
unless excluded pursuant to paragraph 2 below.
20. Notwithstanding the provisions of paragraph 1, the term
"Confidential Information" shall not include, and neither
Party shall be under any obligation to maintain in
confidence or not use, any information (or any portion
thereof) disclosed to it by the other Party to the extent
that such information:
(i) is in the public domain at the time of disclosure; or
(ii) following disclosure, becomes generally known or available
through no fault or omission on the part of the receiving
Party; or
(iii) is known, or becomes known, to the receiving Party from
persons not known by the receiving Party to be under an
obligation of secrecy (whether legal or contractual) to the
disclosing Party; or
(iv) is independently developed by the receiving Party without
violating any of its obligations under this Agreement; or
(v) is legally required to be disclosed by judicial or other
governmental action; provided, however, that prompt notice
of such judicial or other governmental action shall have
been given to the disclosing Party and that the disclosing
Party shall be afforded the opportunity (consistent with the
legal obligations of the receiving Party) to exhaust all
reasonable legal remedies to maintain the Confidential
Information in confidence; or
(vi) which the disclosing Party approved for release by written
authorization to the receiving Party; or
(vii) which is already in the receiving Party's possession at
the time of disclosure and which was not acquired by the
receiving Party directly or indirectly from the disclosing
Party on a confidential basis.
Specific information shall not be deemed to be within the
exceptions of subparts (i) or (iv) above merely because it is
included in a document which contains information within such
exceptions.
21. The Confidential Information (i) may be used by the
receiving Party solely in connection with business between
the Parties, as a result of which the Parties have caused
this Agreement to be executed, and (ii) will be kept
confidential and not disclosed by the receiving Party to any
other person, except that Confidential Information may be
disclosed to any of the receiving Party's affiliates,
directors, officers, employees, attorneys, accountants,
consultants, potential lenders or underwriters, advisors and
agents (collectively, its "Representatives") who require
access to such information in connection with the evaluation
of potential business transactions between the Parties.
Each of the Parties agrees that any of its Representatives
to whom Confidential Information is disclosed will be
informed of the confidential or proprietary nature thereof
and of the receiving Party's obligations under this
Agreement, and that each Party shall be responsible for any
use or disclosure of Confidential Information by any of its
Representatives.
22. NRGG shall not: (i) directly or indirectly solicit business
from the principal host project energy customer, or any
affiliate thereof, of any project that has been presented to
the NRGG Board or NRGG Management as an opportunity in which
NRGG may acquire an
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ownership interest or been offered to NRGG in writing (any
such project "an offered project"); (ii) solicit business
from any project energy customer of an offered project which
business is in competition and inconsistent with an offered
project; (iii) during the period in which NRGG is evaluating
whether it intends to purchase an interest in an offered
project, contact any project participant without the prior
notification, consent and coordination of the contact with
the designated representatives of Energy; or (iv) after the
period in which NRGG is evaluating whether it intends to
purchase an interest in an offered project, contact any
project participant concerning such project without the
prior notification, consent and coordination of the contact
with the designated representatives of Energy, unless NRGG
has acquired an ownership interest in such project. During
the period in which NRGG is evaluating purchasing an
interest in an offered project, Energy shall promptly and
completely disclose information reasonably required by NRGG
related to such project, and Energy shall use reasonable
efforts to facilitate such meetings with project
participants as are reasonably necessary to obtain such
information once a good faith indication of interest has
been made by NRGG. Energy shall have no obligation to
facilitate meetings with project participants prior to the
time that Energy has made an Offer of a project as defined
in section 2.2(a) of the Co-investment Agreement. For the
purposes of this Agreement-
"principal host project energy customer" shall not
include (x) an electric utility company, (y) a power
marketer, or (z) an existing purchaser of energy from a
project in which any NRGG subsidiary has an ownership
interest as of the date of this Agreement.
"affiliate" of a principal host project energy customer
shall mean any partnership, joint venture, or
corporation (any of which, including the principal
project host energy customer, being a "person")
controlling, controlled by, or under common control
with, such customer, provided that control shall mean
the ownership of fifty percent (50%) or more of the
outstanding voting or ownership shares or ownership
interests of the person in question.
23. The Parties agree that: (i) all rights to Confidential
Information disclosed pursuant to this Agreement are
reserved to the disclosing Party, (ii) nothing in this
Agreement shall diminish or restrict in any way the rights
that each Party has to conduct its business or to disclose
its own Confidential Information to third parties; and (iii)
no license or conveyance of any rights relating to the
Confidential Information is granted or implied by either
Party to the other.
24. This Agreement shall continue in effect until the earlier of
(i) one year from the date hereof, or (ii) termination of
the Parties' business relationship. The obligations of
confidentiality contained herein and the obligations set
forth in Section 4 herein shall survive and continue for a
period of two years after expiration or termination the Co-
Investment Agreement.
25. Nothing in this Agreement shall obligate either Party to
disclose any Confidential Information about itself to the
other Party, and any disclosure of Confidential Information
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shall be at the disclosing Party's sole discretion. This
Agreement does not constitute a commitment or promise by
either Party to proceed with any transaction. All
agreements, representations, warranties, covenants and
conditions with respect thereto will be set forth in a
separate written agreement to be negotiated, and if
agreement can be reached, executed by the Parties.
26. Upon a disclosing Party's request, the receiving Party shall
return to the disclosing Party as promptly as practicable,
but in any event within thirty (30) days, all Confidential
Information received from the disclosing Party in the
possession of the receiving Party or its Representatives,
but may retain one copy of such Confidential Information,
all notes and documents compiled using the Confidential
Information and such records as are necessary for securities
disclosure and tax positions.
27. This Agreement embodies all of the understandings between
the Parties hereto concerning the subject matter hereof, and
merges all prior discussions and writings between them as to
confidentiality of information other than as expressly
provided in this Agreement, or as duly set forth subsequent
to the date hereof in writing and signed by both Parties.
This Agreement may not be assigned by either Party without
the prior written consent of the other Party except in
connection with the sale of all or substantially all of the
business or assets of the assigning Party.
28. Without prejudice to the rights and remedies otherwise
available to the disclosing Party, the disclosing Party will
be entitled to equitable relief by way of injunction if
there is a breach or threat of a breach of any of the
provisions of this Agreement by the receiving Party. The
Parties agree and acknowledge that damages would not be an
adequate remedy in the event of a breach of this Agreement.
29. In no event shall either Party have liability for any
consequential, indirect, punitive or other extraordinary
damages.
30. This Agreement shall not be governed by the laws of the
State of Minnesota, excluding its conflict of law rules.
31. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original and all of
which shall constitute one and the same document.
32. The provisions of this Agreement are severable, and if any
one or more of such provisions is determined to be
judicially unenforceable, the remaining provisions shall
nevertheless be binding and enforceable.
33. No third party shall become a Party or beneficiary to this
Agreement, except with the prior written consent of all then-
existing Parties to this Agreement.
34. The prevailing party in any dispute or litigation arising in
connection with this Agreement shall be entitled to recover
its reasonable attorneys' fees and costs.
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IN WITNESS WHEREOF the Parties have signed this Agreement as of
the date first set forth above.
Addresses:
NRG Generating (U.S.) Inc. NRG GENERATING (U.S.) INC.
1221 Nicollet Mall
Suite 610 By: /s/ Robert T. Sherman, Jr.
Minneapolis, MN 55403-2445 Title: President
NRG Energy, Inc. NRG ENERGY, INC.
1221 Nicollet Mall
Suite 700 By: /s/ David H. Peterson
Minneapolis, MN 55403-2445 Title: Chairman, President &
CEO
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