EXHIBIT 99.257
12404 PARK CENTRAL DRIVE
DALLAS, TX 75251 [PEROTSYSTEMS LOGO]
972.340.6429
972.340.6081 FAX
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Post It Fax Note 7571 Date 5/22 #of pages 6
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To /s/ KEN SCOTT From /s/ STEVE APPELT
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Co. Dept. Co.
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Phone # Phone # 614-324-4565
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Fax # 972-340-6081 Fax #
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FAX
TO: Steve Appelt FROM: Ken Scott
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FAX: 614.324.4591 PHONE: 972.340.6429
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PHONE: 614.324.4565 PAGES: 6
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RE: NDA DATE: May 21, 2001
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[ ] URGENT [ ] FOR REVIEW [ ] PLEASE COMMENT [ ] PLEASE REPLY [ ] PLEASE RECYCLE
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- - COMMENTS
Steve:
Attached is the signed NDA. Please initial the minor changes (I added our
company and address), sign and fax the executed agreement to me at 972.340.6081.
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT ("Agreement") is made and entered into by and
between AEP Energy Services, Inc. an Ohio corporation having a principal place
of business at 1 Riverside Plaza, Columbus, Ohio 43215 ("AEPES") and, Perot
Systems Corporation having a principal place of business at 12404 Park Central
Dr., Dallas, TX 75251 ("Company"). Company and AEP may be hereinafter referred
to individually as "Party" and collectively as the "Parties".
WITNESSETH:
WHEREAS, AEPES and Company are considering a possible business relationship (the
"Transaction") by which the Parties would explore several business
opportunities, including a potential purchase of or participating ownership
interest in the
WHEREAS, each of the Parties and their affiliates are in possession of trade
secrets, technology, drawing specifications and/or other confidential
information relating to its businesses and business interests and may find it
desirable and necessary to exchange such information during the course of these
negotiations.
NOW, THEREFORE, In consideration of the mutual covenants contained herein, the
Parties agree as follows:
1. CONFIDENTIAL INFORMATION. "Confidential Information" is defined to
include any information (not included in Section 4 below) that is
disclosed by or about either party and/or their affiliate(s) (the
"Disclosing Party") to the other party and/or their affiliate(s) (the
"Receiving Party") in connection with the Transaction, such as:
a. Written information or machine readable data, including notes,
reports, assessments, specifications, drawings, financial statements and
projections, software and databases, customer information, sales and
marketing strategies, and any other written information or machine
readable data;
b. Orally conveyed information, including but not limited to
demonstrations;
c. Any hardware, including but not limited to samples, devices and any
other physical embodiments delivered to the Receiving Party; and
d. Any documents jointly or separately generated by the Parties that
reflect, interpret, incorporate, evaluate, or are derived from the
information described above (such documents being hereinafter referred
to as "Evaluation Material").
2. CONFIDENTIALITY. For a period of two years from the date hereof, the
Receiving Party agrees:
a. to keep all Confidential Information confidential and not to copy,
distribute, disclose or disseminate the Confidential Information in any
manner to any person or entity, provided, however, that a limited number
of copies of written materials may be made by the Receiving Party in
order for the Receiving Party to adequately use the Confidential
Information within the terms and conditions of this Agreement and that
each copy is considered as Confidential Information and as an original
in accordance with this Agreement; and
b. not to disclose that the Evaluation Material has been generated, or
that either Party and any entity identified in the Confidential
Information may be considering a business relationship or have had, are
having or propose to have any discussions with respect thereto.
Notwithstanding the foregoing, the Receiving Party may disclose
Confidential Information to those employees, officers, directors,
agents, consultants, and advisors (collectively "Representatives") whose
access is necessary to conduct the investigations and negotiations
contemplated herein and who have been informed of the confidentiality
restrictions contained in this Agreement. However, the Receiving Party
may only disclose the Confidential Information to non-employee
Representatives of the Company whose access is necessary if the
non-employee Representatives are provided with a copy of this
Confidentiality Agreement and agree to be bound by the terms of this
Agreement.
Each Party agrees to be responsible for the actions, uses and
disclosures of any of its Representatives.
3. OWNERSHIP AND USE OF CONFIDENTIAL INFORMATION. All Confidential
Information except Evaluation Materials shall remain the property of the
Disclosing Party. No license or other rights under any patents or other
proprietary rights is granted or implied by the conveyance of the
Confidential Information. The Receiving Party shall not use the
Confidential Information for any purpose other than to effectuate the
investigative and negotiation purposes of this Agreement.
4. NON-CONFIDENTIAL INFORMATION. The restrictions and confidentiality
obligations set forth in this Agreement shall not apply to Confidential
Information which:
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a. is or becomes part of the public domain through no fault of the
Receiving Party.
b. is disclosed to the Receiving Party by a
third party when the Receiving Party reasonably believes the
third party was not prohibited from making such disclosure;
c. was in the possession of the Receiving Party on a
non-confidential basis prior to disclosure by the Disclosing
Party;
d. subject to Section 8 hereof, is required to be
disclosed to comply with any applicable law, order, regulation
or ruling.
5. PUBLIC DISCLOSURE. Neither Party shall make any press release or other
public utterances of any kind regarding this Agreement, the Transaction,
the information received pursuant to this Agreement or the contents of
this Agreement without prior written consent of the other Party.
6. DISPOSITION OF CONFIDENTIAL INFORMATION. Either Party (the "requesting
Party") upon written request from the other Party, shall promptly, but
in any case within 14 days, return to the other Party or destroy all
Confidential Information, including without limitation, drawings and
other documents, and any copies or summaries thereof, but excepting
Evaluation Material. If the Confidential Information is destroyed, upon
request, the other Party shall provide the requesting Party with a
certificate stating that all Confidential Material has been destroyed.
The Evaluation Material, including all copies thereof, will be destroyed
by the other Party within said period and, if requested by the
requesting Party, the other Party shall provide the requesting Party
with a certificate of destruction.
7. PROTECTION OF CONFIDENTIAL INFORMATION. Each Party shall use efforts to
protect the confidentiality of the Confidential Information which are
at least as stringent as those which it uses to protect its own
confidential information.
8. LEGALLY REQUIRED DISCLOSURE. If either Party becomes legally compelled
to disclose any of the Confidential Information, or if such disclosure
is necessary in order to obtain or maintain regulatory or governmental
approvals, applications or exemptions, such Party will provide the other
Party with as much advance notice as practicable to afford the
opportunity to seek an appropriate protective order or other remedy to
prevent or narrow the disclosure or to ensure that such information
will continue to be treated in as confidential a manner as possible.
In such cases, the Party may furnish only that portion of the
Confidential Information which is legally required or necessary and
shall cooperate with the other Party to enable it to obtain a protective
order or other reliable assurance that confidential treatment will be
accorded the same.
9. TERM OF AGREEMENT. This Agreement will be effective as of the date
hereof and will terminate two years after its effective date.
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11. WARRANTIES. Each Party acknowledges that other Party (including its
trustees, directors, officers, employees, and agents) makes no express
of implied representation or warranty as to the accuracy or completeness
of any Confidential information and that the other Party shall have no
liability arising out of or relating to the Party's or its
Representatives' use of any Confidential Information.
12. REMEDIES. Each Party understands and agrees that monetary damages would
not be adequate remedy for a breach of this Agreement. In the event of
any breach or threatened breach by either Party of this Agreement, the
other Party shall be entitled to injunctive and other equitable relief,
and that there shall be no pleading in defense thereto that there would
be an adequate remedy at law. Such remedy shall be in addition to all
other remedies available to it at law or in equity. The non-breaching
Party shall also be entitled to recover its reasonable legal fees and
expenses and costs in enforcing this Agreement or recovering damages for
any breach hereof.
13. NOTICES. Addresses for notices and requests are:
AEP Energy Services, Inc.
1 Riverside Plaza
Columbus, Ohio 43215
Attention: GENERAL COUNSEL
PEROT SYSTEMS CORPORATION
12404 PARK CENTRAL DR.
DALLAS, TX 78251
Attention: GENERAL COUNSEL
Notices shall be in writing and shall be given to the designated
representative, either by personal delivery or by the U.S. Mail,
facsimile, or other similar means mutually agreeable to AEPES and the
Company. All notices shall be effective upon receipt.
14. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio, without regard to the
conflict of laws in effect therein.
15. ASSIGNMENT. This Agreement may not be assigned, delegated or transferred
by either Party in any way, without the prior written consent of the
other Party, which consent shall not be unreasonably withheld or
delayed. This Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto and their respective permitted successors
and assigns.
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16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the Parties, supercedes any prior understandings or
representations relating to the subject matter hereof, and shall not be
subject to change or amendment except by subsequent written agreement
signed by authorized representatives or the Parties. All provisions of
this Agreement are severable, and the unenforceability of any of the
provisions of this Agreement shall not affect the validity or
enforceability of the remaining provisions of this Agreement.
17. FINALIZATION OF TRANSACTION. Until AEPES and the Company have executed
the documents necessary to finalize the Transaction, neither Party shall
have any liability to the other Party with respect to a Transaction.
18. NO WAIVER. No failure or delay by a Party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further
exercise of any other right, power or privilege hereunder.
19. COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be executed in
counterparts, with each executed counterpart having the same force and
effect as the original counterpart. This Agreement shall be deemed
binding upon the Parties if each Party executes this Agreement, sends
the executed Agreement via facsimile to the other Party, and receives
confirmation of receipt of the executed Agreement from the other Party.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
22ND day of May 2001.
AEP Energy Services, Inc.
By: /s/ By: /s/
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Title: SRVP - Administration Title: Vice President
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AEP Energy Services, Inc. Perot Systems Corp.
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