EXHIBIT 2.2
CONFIDENTIALITY AGREEMENT
This CONFIDENTIALITY AGREEMENT (the "Agreement"), made and entered into
by and between Xxxx Energy Corporation, a Texas corporation ("Atmos"), and
United Cities Gas Company, an Illinois and Virginia corporation ("United
Cities"), and effective as of this 5th day of July, 1996,
W I T N E S S E T H:
WHEREAS, the parties hereto have indicated an interest in exchanging
and reviewing certain information concerning one another in connection with a
possible negotiated merger of United Cities and Atmos, subject to approval by
the boards of directors and shareholders of United Cities and Atmos (the
"Possible Transaction");
WHEREAS, each party may furnish to the other certain information about
such party that may be confidential, proprietary or otherwise not generally
available to the public in connection with the Possible Transaction; and
WHEREAS, this Agreement is not intended to create any obligations for
either party hereto with respect to the Possible Transaction, other than the
confidentiality and related agreements expressly set forth herein, and no other
contract or agreement providing for the Possible Transaction shall be deemed to
exist between the parties hereto.
NOW, THEREFORE, for and in consideration of the premises and the
agreements herein contained, the sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Nondisclosure of Confidential Information. Neither Atmos nor
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United Cities shall use Confidential Information (as defined below) other
than in connection with the Possible Transaction, and each of Atmos and
United Cities will keep the Confidential information confidential. The
Confidential Information may be disclosed to the directors, officers,
employees, consultants and agents of a party (collectively,
"Representatives") only on a need-to-know basis in connection with the
Possible Transaction. It is understood that (i) such Representatives will be
informed by Atmos or United Cities, as applicable, of the confidential
nature of the Confidential Information and the requirement that it not be
used other than in connection with the Possible Transaction, (ii) such
Representatives will be bound by the terms of this Agreement and (iii) each
party hereto will be responsible for any breach of this Agreement by any of
its Representatives.
2. Definition of "Confidential Information." As used in this
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Agreement, "Confidential Information" means all information that is
furnished to a party (a "receiving party") or its Representatives by the
other party (a "disclosing party") that concerns the Possible Transaction,
the disclosing party or its stockholders, affiliates or subsidiaries, and
which is either confidential or proprietary or otherwise not generally
available to the public. Notwithstanding the foregoing, the following
information will not constitute "Confidential Information" for purposes of
this Agreement: (a) information which is or
becomes generally available to the public other than as a result of a disclosure
by a receiving party or its Representatives; (b) was available to a receiving
party or its Representatives on a nonconfidential basis prior to its disclosure
by a disclosing party to a receiving party in connection with the Possible
Transaction; or (c) becomes available to a receiving party or its
Representatives on a nonconfidential basis from a person, other than a
disclosing party, who is not known by the receiving party to be bound by a
confidentiality agreement with the disclosing party or otherwise prohibited from
transmitting such information to the receiving party or its Representatives.
3. Nondisclosure of Discussions. Except as may be required by applicable
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law or stock exchange rules, without the prior written consent of both parties,
no party shall disclose to any person either the fact that the Confidential
Information has been made available to any party, or any other facts with
respect to the Possible Transaction.
4. Notice Preceding Compelled Disclosure. If a receiving party or any of
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its Representatives is requested or required (by oral question, interrogatories,
requests for information or documents, subpoena, civil investigative demand, or
similar process) to disclose any Confidential Information, such party shall
promptly notify the disclosing party of such request or requirement, if that
notification can be made without violating the terms of such request or
requirement, so that the disclosing party may seek an appropriate protective
order or waive compliance with this Agreement. If, in the absence of a
protective order or the receipt of a waiver hereunder, a receiving party or its
Representatives are, in the written opinion of their legal counsel, compelled to
disclose the Confidential Information, such receiving party or its
Representatives may disclose that portion of the Confidential Information that
its counsel advises it that it is compelled to disclose.
5. Return of Information. At any time upon the request of a disclosing
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party, a receiving party will promptly deliver to the disclosing party all of
the Confidential Information furnished by such disclosing party, without
retaining copies thereof; provided, however, that any analyses, compilations,
studies or other documents that a receiving party or its Representatives may
have prepared that contain or otherwise reflect such Confidential Information
may be either returned to the disclosing party, or destroyed, at the election of
the receiving party in its sole discretion.
6. Term. Unless the Confidential Information becomes public at an earlier
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date, the parties' and their respective Representatives' obligations under this
Agreement shall terminate two years from the date of this Agreement.
7. Remedies. Xxxx and United Cities hereby acknowledge and agree that
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money damages would not be a sufficient remedy for any breach of this Agreement,
and a disclosing party will be entitled to specific performance and injunctive
relief as remedies for any such breach. Such remedies will not be deemed to be
the exclusive remedies for a breach of this Agreement by a receiving party or
any of its
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Representatives, but will be in addition to all other remedies available at law
or in equity to a disclosing party.
8. No Further Agreement. This Agreement constitutes the entire agreement
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between the parties hereto concerning the subject matter hereof. This Agreement
does not constitute an offer to engage in any transaction, including without
limitation, the Possible Transaction, it does not impose any obligation to
bargain in good faith in connection therewith, and no party hereto intends to be
bound by any agreement concerning a Possible Transaction unless and until it
agrees to and signs a formal written contract approved by its board of
directors. Either party may terminate discussions regarding the Possible
Transaction at any time, for any reason. Each party is free to pursue any other
possible business transactions with any other persons at any time, and without
any obligations to notify the other party that any such transaction is being
considered, including any merger or other business combination. This Agreement
imposes no obligation or duty on either party to disclose any particular
information to the other party. No person may reasonably rely on any promises
inconsistent with this paragraph.
9. Choice of Law. This Agreement shall be governed by and in accordance
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with the laws of the State of Illinois, without regard to the conflict of laws
principles thereof.
IN WITNESS WHEREOF, the undersigned have executed this Confidentiality
Agreement as of the date first written above.
ATMOS ENERGY CORPORATION UNITED CITIES GAS COMPANY
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxxxx Xxxxx X. Xxxx
Executive Vice President and Senior Vice President and
Chief Financial Officer Treasurer
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