Contract No. ______
Attachment D
MUTUAL CONFIDENTIALITY AND
NON-DISCLOSURE AGREEMENT
This Mutual Confidentiality and Non-Disclosure Agreement (the “Agreement”)is effective as of ______, 20____ (the “Effective Date”) between ______(“Consultant”) and HAWAIIAN ELECTRIC COMPANY, INC. and its subsidiaries; HAWAII ELECTRIC LIGHT COMPANY, INC. (Hawai‛i Electric Light), and MAUI ELECTRIC COMPANY, LIMITED (Maui Electric)(hereinafter collectively referred to as “The Companies").
Consultant and The Companies are exploring a possible business arrangement, effort or project between or involving Consultant and The Companies, relating to ______(the "Potential Venture"). In connection with Consultant’s and The Companies’ analysis of the Potential Venture, they have requested certain oral, written and electronic information from one another concerning their respective businesses and affairs and the Potential Venture which the parties consider confidential and proprietary (collectively, the "Evaluation Material"). The party providing any Evaluation Material to the other party is sometimes referred to herein as the "Provider" and the party receiving the Evaluation Material from the other party is sometimes referred to herein as the “Recipient”.
In consideration of the premises and mutual promises contained in this Agreement, including Consultant's and The Companies’ furnishing one another with the Evaluation Material, and intending to be legally bound hereby, Consultant and The Companies hereby agree as follows:
1.Consultant and The Companies will use the Evaluation Material received from the other party solely for the purpose of evaluating the Potential Venture and such information will be kept confidential by the Recipient, except that Consultant and The Companies may disclose the other party's Evaluation Materials or portions thereof to those of their affiliates, directors, officers, employees, consultants, agents and advisors (the persons to whom such disclosure is permissible being collectively called "Representatives") who need to know such information for the purpose of evaluating the Potential Venture.Before disclosing the Evaluation Material to any Representative, Recipient will inform such Representative of the confidential nature of such information, their duty to treat the Evaluation Material in accordance with this Agreement and shall ensure that such Representative is legally bound by the terms and conditions of this Agreement or another substantially similar agreement that legally obligates the Representative to preserve the confidentiality of the Evaluation Material consistent with this Agreement. Recipient will take all reasonable safeguards to assure that no portion of the Evaluation Material is disclosed to any other persons without the prior written consent of the Provider.
Any provision herein to the contrary notwithstanding, The Companies may disclose Evaluation Material to the State of Hawaii Public Utilities Commission (“Commission”) and/or State of Hawaii Consumer Advocate (including their respective staffs) provided that such disclosure is made under a protective order entered in the docket or proceeding with respect to which the disclosure will be made or any general protective order entered by the Commission.
2.If the parties or any of their Representatives become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) or shall be advised by counsel to disclose any of the Evaluation Material, the compelled party shall undertake reasonable efforts to provide the other party with prompt notice of such requirement or advice prior to disclosure so that the other party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. If such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the compelled party agrees to furnish only that portion of the Evaluation Material which it is legally required to so furnish and, at the request of the other party, to use reasonable efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material, it being understood that such reasonable efforts shall be at the cost and expense of the party whose Evaluation Material has been sought.
3.The nondisclosure obligations set forth herein shall not apply to any portion of the Evaluation Material which (a) was known to the Recipient and obtained on a non-confidential basis prior to its disclosure to Recipient by Provider, (b) is available or, without the action or inaction of Recipient, becomes available to the general public, (c) is received by the Recipient from a third party not bound by a confidentiality obligation, or (d) is independently developed by the Recipient without violating any of its obligations under this Agreement.
4.Consultant acknowledges that The Companiesare a publicly traded company, and that Evaluation Material of The Companies may constitute material, non-public information with respect to The Companies. Consultant understands, and will advise its Representatives to whom Evaluation Material of The Companiesare disclosed, of the restrictions imposed by the United States securities laws on (a) the purchase or sale of securities by any person in possession of material, non-public information with respect to such securities, and (b) the communication of material, non-public information with respect to securities to a person who may purchase or sell such securities in reliance upon such information.
5.If a transaction is not consummated between Consultant and The Companies and the Provider so requests in writing or if the Provider otherwise so requests in writing, the Recipient will return to the Provider within thirty (30) business days all copies of Evaluation Material in tangible form received from the other party in its or its Representatives' possession or certify within such period that it has destroyed such information; provided, however, that the Recipient's sole obligation with respect to the disposition of any internal memoranda or other materials prepared by it that incorporate any such Evaluation Material shall be to redact or otherwise expunge all such Evaluation Material from such materials.
6.Whether or not the Potential Venture is consummated, neither party shall issue a press release or make any statement to the general public concerning such transaction or the absence thereof without the express prior written consent of the other.
7.Consultant or The Companies may offer services which are competitive with products or services now offered or which may be offered by the other, may now be having or have in the future discussions with others concerning subject matters similar to the Potential Venture and may receive information from others similar to the Provider's Evaluation Material. Subject to the express terms and conditions of this Agreement, neither this Agreement nor discussions and/or communications between Consultant and The Companies will impair the right of either party to develop, make, use, procure, and/or market any products or services, alone or with others, now or in the future, including those which may be competitive with those offered by the other.
8.Neither this Agreement nor the disclosure by Consultant and The Companies of the Evaluation Material or other information to the other shall result in any obligation on the part of either party to enter into any further agreement with the other with respect to the subject matter hereof or otherwise, to purchase any products or services from the other or to require either party to disclose any particular information to the other. Nothing in this Agreement shall imply any partnership or joint venture between the parties or be construed as making either party the agent of the other.
9.In the event of any breach of the provisions of this Agreement, the non-breaching party shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or in equity.
10.By delivering written notice, either party may notify the other that it no longer wishes to receive or provide Evaluation Material. Any information received or provided by either party after shall not be subject to the protection of this Agreement.
11.All Evaluation Material shall remain the sole and exclusive property of the Provider and nothing in this Agreement, or any course of conduct between the parties shall be deemed to grant to the Recipient any license or rights in or to the Evaluation Material of the Provider, or any part thereof.
12.Any notice required or permitted to be given in writing under this Agreement shall be (a) mailed by certified mail, postage prepaid, return receipt requested, (b) sent by overnight air courier service, (c) personally delivered to a representative of the receiving party, (d) sent by facsimile (provided an identical notice is also sent simultaneously by mail, overnight courier, or personal delivery as otherwise provided in this Section 12), or (e) sent by email (provided receipt thereof is confirmed via email or in writing by the recipient) and any such notice shall be deemed given (i) when received if personally delivered or sent by overnight air courier service, (ii) on the date of transmission if sent by facsimile transmission, (iii) three business days after being deposited in the U.S. mail, certified, postage prepaid and return receipt requested, or (iv) when received if sent in an email, the receipt of which has been confirmed by the recipient. All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended, using the contact information provided below or such other contact information as the parties may designate from time to time:
If to the Company:
Attention:
Telephone
Facsimile:
Email:
With a copy to:
Hawaiian Electric Company, Inc.
PO Box 2750
Honolulu, Hawaii96840
Attention: Vice President & General Counsel, Susan Li
Facsimile: 808- 543-7302
Email:
If to Consultant:
[ADDRESS]
Attention:
Facsimile:
Email:
- Failure of a party to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of any provision of this Agreement shall be effective unless in writing and executed by the party waiving the right. If any provision of this Agreement, or the application thereof to any person or circumstance shall, for any reason or to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the fullest extent permitted by law.
- This Agreement and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the parties hereto, together with their respective successors and permitted assigns. Neither party shall have the right to assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other party. Nothwithstanding the foregoing, The Companies notify and Consultant acknowledges notice of the pending merger of The Companies’ parent, HEI, Inc., with NextEra Energy, Inc. which transaction, pending and subject to appropriate regulatory approval, Consultant specifically consents and agrees to without further action on the part of either party.
- The validity and interpretation of this Agreement shall be governed by the laws of the State of Hawaii, and any action brought with respect to the matters contained in this Agreement shall be brought in the federal or state courts located in the State of Hawaii. Each party irrevocably consents to the exercise of personal jurisdiction over each of the parties by such courts and waives any right to plead, claim or allege that Hawaii is an inconvenient forum.
- This Agreement may be amended only by a writing signed by all parties hereto.
- This Agreement shall remain in full force and effect for a period of two(2) years from the Effective Date. All confidentiality obligations shall survive following expiration or termination of this Agreement.
- This Agreement constitutes the entire understanding between the Company and Consultant as to Evaluation Material provided pursuant to it and merges all prior and contemporaneous discussions and agreements between and among them relating thereto.
- The parties agree that this Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall together constitute one and the same instrument binding all parties notwithstanding that all of the parties are not signatories to the same counterparts. For all purposes, duplicate unexecuted and unacknowledged pages of the counterparts may be discarded and the remaining pages assembled as on document. This Agreement may also be executed by exchange of executed copies via facsimile or other electronic means, such as PDF, in which case, but not as a condition to the validity of the Agreement, each party shall subsequently send the other party by mail the original executed copy. A party's signature transmitted by facsimile or similar electronic means shall be considered an "original" signature for purposes of this Agreement.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed on its behalf by an officer thereunto duly authorized, all as of the date set forth above.
______
Date: ______By: ______
Its
“Consultant”
HAWAIIAN ELECTRIC COMPANY, INC.
Date: ______By: ______
Its
“Company”
Date: ______By: ______
Its
“Company”
MUTUAL CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
(09/23/10)
1
CONFIDAG.DOC