Exhibit F
NON-DISCLOSURE AGREEMENT
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This Agreement is made as of this 23rd day of February, 2005, between Exide
Technologies with an address at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxxx,
XX 00000, hereinafter called the ("Disclosing Party"), and Xxxxx Fund Management
LLC, with an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
hereinafter called the ("Receiving Party"). Both of the aforementioned are
hereinafter referred to as the ("Parties").
It is anticipated that the Disclosing Party may disclose to the Receiving
Party certain technical and/or business information about the Disclosing Party,
which the Disclosing Party regards as proprietary and/or confidential. The
purpose of this Agreement is to set forth the terms and conditions under which
such information will be maintained in confidence by the Receiving Party. In
consideration of the mutual covenants contained herein, the parties agree as
follows:
1. "Proprietary" or "Confidential Information", hereinafter also
referred to as "Information", as used herein shall mean
technical and/or business information which is disclosed by
the Disclosing Party to the Receiving Party and is marked
physically, designated orally, or would be reasonably
understood as "Proprietary" or "Confidential".
2. Notwithstanding any of the foregoing, the following shall not
be deemed Information; information which is:
a. in the public domain or falls into the public domain
through no breach of this Agreement on the part of
the Receiving Party;
b. already known to the Receiving Party before it
receives the information from the Disclosing Party;
c. rightfully obtained by the Receiving Party from a
third party who is not known by the Receiving Party
to be under any obligation of confidentiality to the
Disclosing Party;
d. provided by the Disclosing Party to a third party not
under any obligation of confidentiality;
e. developed independently by the Receiving Party; or
f. approved for release by written authorization of the
Disclosing Party.
3. For so long as the Information is confidential the Receiving Party
will:
a. restrict disclosure of the Information solely to those of its
employees, officers, directors, affiliates, consultants,
counselors, agents, advisors, financial advisors, potential
financing sources current investors and potential
investors in entities the Receiving Party may advise
(collectively, "Representatives") with a need to know and
not disclose it to third parties;
b. advise its Representatives who receive Information of the
obligation of confidentiality expressed in this Agreement (unless
such persons have an independent obligation to keep such
information confidential); and
c. exercise and require Representatives to exercise due diligence
and care in the protection of the Information of the Disclosing
Party to no less a degree than used by the Receiving Party to
protect its own information.
4. The Disclosing Party agrees that, notwithstanding any other provision
of this Agreement, the trading activities of any account managed by
Xxxxx Fund Management LLC, Xxxxxx Xxxxx or their employees shall not
be restricted in any way by the provisions of this Agreement so long
as the persons directing such trading are not in receipt of any
Information.
5. The Receiving Party and the Disclosing Party each agree not to make
any disclosure (other than to their respective Representatives):
a. that the Parties are having or have had discussions, or that the
Receiving Party has received information from the Disclosing
Party,
b. that the Receiving Party is considering Information, or
c. concerning any discussions related to Information;
provided that the Receiving Party may make such disclosure upon
receiving the advice of its counsel that such disclosure is
required by applicable law or regulations, in which case, the
Receiving Party will notify the Disclosing Party as soon as
possible (if it is legally permitted to do so), prior to making
such disclosure if practicable and cooperate with the Disclosing
Party's efforts to limit the further disclosure of such
information (at the Disclosing Party's sole expense).
6. The Parties agree that unless and until a definitive agreement between
the two Parties with respect to any transaction has been executed and
delivered, neither Party will be under any legal obligation of any
kind whatsoever with respect to such transaction. If the Disclosing
Party should elect at any time to terminate further access by the
Receiving Party to the Information for any reason, the Receiving Party
will, at its option, within ten business days either redeliver to the
Disclosing Party or destroy all copies of the Information and notes or
other material containing the Information, provided Receiving Party
and its Representatives may retain one copy == of the Information
required for regulatory and compliance purposes. Notwithstanding the
return or destruction of Information, the Receiving Party will
continue to be bound by the obligation of confidentiality pursuant to
this Agreement for the term of this Agreement.
7. This Agreement contains the entire Agreement between the Parties
and supersedes any previous understandings, commitments, or
agreements, oral or written.
8. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without regard
to the choice of law provisions thereof.
9. The obligations hereunder shall terminate two months from the date
hereof.
IN WITNESS WHEREOF, the Parties agree that the effective date of this
Agreement shall be the date first set forth above.
Receiving Party: Disclosing Party:
Xxxxx Fund Management LLC Exide Technologies
By: /s/ Xxxxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxx, Xx. Name: Xxxxxx Xxxxxxxx
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Title: Assistant General Counsel Title: General Counsel
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Date: February 23, 2005 Date: February 24, 2005
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