NON-DISCLOSURE AND CONFIDENTIALITY AGREEMENT
The undersigned (the "Buyer") understands and acknowledges that the Benjamin Ross Group (the "BRG") has been retained, for an agreed upon commission, to represent Seller in the sale of the Business. Buyer understands and acknowledges the BRG is acting as the agent of the Seller and that BRG’s primary duty is to represent the interests of the Seller.
In order to induce BRG or Seller to furnish information regarding the Business (the "Information") to Buyer for Buyer's evaluation and possible purchase of said Business and in consideration for BRG’s or Seller's furnishing such information, Buyer understands, agrees, represents and warrants to BRG and Seller as follows:
1. The word "Buyer," as used herein, shall mean and include the undersigned individually, as a member of a partnership, or LLC, as an employee, stockholder, officer or director of a corporation, as an agent, adviser or consultant for or to any business entity and in any other capacity whatsoever.
2. The Information is of a proprietary and confidential nature, the disclosure of which to any other party will result in damage to the Seller and/or Business, and Buyer further represents and warrants as follows:
(A) The Information furnished by BRG or Seller has not been publicly disclosed, has not been made available to Buyer by any party or source other than BRG or Seller and is being furnished only upon the terms and conditions contained in this Agreement.
(B) Buyer will not disclose the Information, in whole or in part, to any party other than persons within Buyer's organization, including independent advisers/consultants, who have a need to know such Information for purposes of evaluating or structuring the possible purchase of the Business. Buyer accepts full responsibility for full compliance with all provisions of this Agreement by such other persons.
(C) Buyer will not disclose, except to the extent required by law, to any parties other than the persons described in Paragraph 2(B) above that the Business is available for purchase or that evaluations, discussions or negotiations are taking place concerning a possible purchase.
(D) Buyer will not utilize, now or at any time in the future, any trade secret(s), as that term may be defined under statutory or common law, that is/are included in the furnished Information for any purpose other than evaluating the possible purchase of the Business, including, without limitation, not utilizing same in the conduct of Buyer's or any other party's present or future business(es).
(E) Additionally, for a period of three (3) years following exposure of the Business by BRG to the Buyer, Buyer shall not utilize any other furnished Information for any purpose other than evaluating the possible purchase of said Business. This prohibition includes, but is not limited to, the use of Information provided to enter into or engage in competition within the presently existing marketing area of the Business or to promote any other party in doing so.
(F) If Buyer decides not to pursue the possible purchase of the Business, Buyer will promptly return to BRG all Information previously furnished by BRG or Seller, including any and all reproductions of same, and further, shall destroy any and all analyses, compilations or other material that incorporates any part of said Information.
3. Buyer will not contact the Seller or Seller's employees, customers, suppliers or agents other than BRG for any reason whatsoever without the prior written consent of the BRG. All contacts with the Seller or such other parties will be made through or by BRG unless otherwise agreed to by BRG, in writing.
4. The Information furnished by BRG has been prepared by or is based upon representations of the Seller and BRG has made no independent investigation or verification of said Information. Buyer hereby expressly releases and discharges BRG from any and all responsibility and/or liability in connection with the accuracy, completeness or any other aspects of the information and accepts sole and final responsibility for the evaluation of the Information and all other factors relating to the Business. BRG reserves the right to reference the sale of a business, post-closing, in its marketing and promotional materials.
5. The Information is subject to change or withdrawal without notice and the Business is being offered for sale subject to prior sale or the withdrawal of said offering without notice.
6. BRG is not a law firm or an accounting firm and the employees/representatives of BRG are not and will not be acting as your attorney or accountant. Any materials or advice provided by BRG and its representatives are for informational purposes only and are not intended for the purpose of providing legal or accounting advice. You should contact your attorney or accountant to obtain advice with respect to any particular issue or problem.
7. Buyer will indemnify and hold harmless the BRG and Seller from any and all claims or actions arising from Buyer's acts or failures to act in pursuing the possible purchase of the Business, including, without limitation, reasonable attorney's fees and other expenses incurred by BRG and seller.
8. For a period of three (3) years following the exposure of any Business by BRG to the Buyer, Buyer shall not enter into an Agreement for the purchase of that Business, in whole or in part, or assist or promote any other party in so doing, unless such agreement to purchase provides for commission to be paid to BRG, with the commission being defined as the amount agreed upon by BRG and Seller in the "Engagement Agreement" or similar agreement between those parties. The phrase "agreement for the purchase of the Business" as used herein, shall mean and include any agreement, specifically including, but not limited to, offers to purchase, letters of intent and similar agreements, that provides for the transfer, conveyance, possession of, or disposition of the Business, its capital stock, assets, or any portion thereof, and the commission amount to be paid BRG shall be the greater of either the minimum commission or the commission based upon sale price (or purchase price), as these amounts are defined in the aforesaid agreement between BRG and Seller. Further, "sale price (or purchase price)" as used herein shall mean and include the total amount of consideration paid or conveyed to Seller or for Seller's benefit, including, without limitation, cash, capital stock, notes, personal property of any kind, real property, leases, lines of credit, loans, contingent payments (e.g., license agreements, royalty agreements, payments based upon future sales or profits, etc.), employment or management contracts, consulting agreements, non-competition agreements, assumption or discharge of any or all liabilities, and any combination of the foregoing and/or other consideration. The commission amount agreed upon by BRG and Seller in the aforesaid agreement between those parties will be made known to Buyer by BRG, upon Buyer's request, when and if an agreement for the purchase of the Business is made by Buyer. If Buyer violates the foregoing provision, Buyer will be liable for and pay said commission to BRG upon demand without any obligation on BRG's part to first exhaust any legal remedies against Seller.
9. Buyer represents that Buyer has sufficient financial resources to complete the transaction for the asking price and terms set forth herein. Buyer agrees to provide, upon request by BRG or Seller, financial statements, credit references and other pertinent information evidencing such financial sufficiency.
10. The performance and construction of this Agreement shall be governed by the laws of the State of Pennsylvania. All sums due hereunder shall be payable at the office of the BRG in Bucks County, Pennsylvania and all parties hereto agree to forbear from filing a claim in any other jurisdiction.
11. This Agreement shall be binding upon the Buyer, Buyer's heirs, executors, successors, assigns, administrators or representatives. If any provision of this Agreement shall be held to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and this Agreement shall be construed as if such invalid, void or unenforceable provision had not been contained herein.
12. Any controversy between the parties to this Agreement involving the construction or application of any of the terms, covenants or conditions of this Agreement, shall on written request of one (1) party served on the other, be submitted to binding arbitration. Such arbitration shall be under the rules of the American Arbitration Association. The arbitrator shall have no authority to change any provisions of this agreement; the arbitrator’s sole authority shall be to interpret or apply the provisions of this Agreement. The expenses of arbitration conducted pursuant to this paragraph shall be born by the parties in such proportion as the Arbitrators shall decide.
13. The terms and conditions of this Agreement shall also apply to any other business and/or property on which BRG has been retained to represent the owner(s) in the sale thereof and on which BRG or owner(s) has furnished information to Buyer. Further, it shall not be necessary for Buyer to execute any additional agreement(s) to that effect and any terms and conditions of this Agreement that refer to the date hereof shall automatically be adjusted to reflect the date on which BRG or owner(s) initially furnished information to Buyer on such other business and/or property.
14. The provisions hereof cannot be modified, amended, supplemented or rescinded without the written consent of BRG and this Agreement sets forth the entire agreement and understanding.
Benjamin Ross Group, LLC
308 Lakeside Park Southampton, PA 18966
Phone: 215-357-9694 Fax: 215-357-2575 Email: firstname.lastname@example.org