This Non-Disclosure and Confidentiality Agreement will confirm our understanding in

connection with Advantage Business Advisors (“ABA”) providing and the undersigned (“Prospective Buyer”) receipt of certain confidential information relating to a business that ABA represents (the “Company”).

 

In consideration of obtaining the Confidential Information the Prospective Buyer hereby agrees as follows:          

 

1.         “Confidential Information” includes all oral or written data, reports, analysis, studies, compilations, records, documents and/or materials obtained from ABA or the Company or its agents or representatives, including the name, address, and type of business of the Company, the knowledge that the Company may be considering a sale or merger, or even the fact that information has been provided.    

            Confidential Information shall not include, and all obligations as to non-disclosure by the undersigned shall cease to be any part of such Information to the extent that such Confidential information: (i) is or becomes public other than as a result of acts by the undersigned; (ii) can be shown was already known to the undersigned at the time of the disclosure hereunder; (iii) is independently obtained by the undersigned from a third party having no duty of confidentiality to the Company; (iv) is independently developed by the undersigned without use of any Confidential Information supplied hereunder; or (v) is obligated to be disclosed pursuant to applicable law, regulation or legal process.

 

2.         Confidential Information is provided in “secrecy and confidence” and to be used for the sole purpose of assessing the prospective purchase of the Company.   

 

3.         The Prospective Buyer agrees not to disclose any Confidential Information, directly or indirectly, to any third party, with the sole exception of direct agents and employees assisting in evaluation of the purchase of the Company.    No visits, employee, supplier or customer contacts without express permission from ABA. The Prospective Buyer agrees that it will directly solicit for employment any employees of the Company or interfere in any way with any of its business using knowledge acquired under this Agreement.  The Prospective Buyer agrees not to use of any such Confidential Information in a manner harmful to the Company and the Confidential Information will be not used, or permitted by others to use, for competitive trade purpose(s).   The Prospective Buyer agrees that all negotiations, inquiries, investigations,  offers to purchase, and/or letters of intent must be made through ABA, unless otherwise specified in writing and any attempt to circumvent ABA’s contract with the Company shall he actionable at law for tortious interference with contract.  

 

4.         The Prospective Buyer understands and acknowledges that the Confidential Information furnished is believed to be reliable, however, it is based upon data supplied by the Company or received from other sources regarded as authentic, and while made in good faith, is not guaranteed for completeness or accuracy.  Further, the Prospective Buyer understands and acknowledges that it is their responsibility to verify and confirm all facts and/or statement of facts deemed necessary or desirable to evaluate the purchase the assets or stock of the Company.  Any representations and warranties will be made solely by the Company in a signed acquisition purchase contract and then be subject to the provisions thereof.  The Prospective Buyer will have no recourse to ABA or the Company if the Confidential Information proves to be untrue unless there has been a knowing fraudulent misrepresentation by the Company.  

 

5.         The Prospective Buyer  agrees that any breach of this Agreement, directly or indirectly, will be harmful to ABA and the Company and that ABA and/or the Company may avail themselves of any remedy, including injunctive relief, available under the laws of Virginia.  This Agreement will be governed by and constructed under the laws of the State of Virginia.  It is executed under seal and is intended to have the full force and effect of a sealed instrument under the laws of Virginia.  All actions that may arise in law and/or equity shall be brought in the State of Virginia.  It is understood that the Company is the intended party and beneficiary whose rights are being protected and may enforce the terms of this Agreement as if it were a party to this Agreement.

 

6.         The Prospective Buyer warrants that the person(s)/entity executing this Agreement has the authority to enter into this Agreement.  If the undersigned represents  a partnership, corporation, limited liability company, or other entity, the person(s) signing on behalf of such entity hereby represent(s) and warrant(s) that they have the authority to enter into this Agreement on behalf of said entity and the employees and agents of the entity who shall assume the same obligations as under this Agreement.   The undersigned hereby assumes full responsibility for the compliance of such entity and the employees and agents thereof, to the terms of this Agreement.

 

7.         The Prospective Buyer acknowledges that ABA is an agent for the Company in this transaction, with whom its fiduciary responsibilities are vested.  The Prospective Buyer understands that this relationship has been created by a separate contract between the Company and ABA.

 

8.         The Prospective Buyer acknowledges ABA as the initial and sole procuring cause of introduction to the Company and warrants that ABB has discussed the financial requirements relative to the purchase of the Company and hereby represents to possess the financial capacity to purchase the Company as described.

 

9.         All Confidential Information will be immediately  returned via overnight delivery, courier or hand delivery or destroyed as directed by ABA or the Company.

 

10.       In the event that the Prospective Buyer believes that it or its Representatives are legally required to disclose any Confidential Information of the Company, the Prospective Buyer shall provide the Company with prompt written notice of such requirement so that the Company may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.   

 

11.       The respective obligations of the parties under this Agreement shall survive for a period of two (2) years following the date hereof.

 

12.       This Agreement constitutes the only and entire agreement relating to the subject matter hereof and may be amended or modified only by an instrument in writing of current or subsequent date signed by a duly authorized representative of each party.  This Agreement may be executed in one or more counterparts, each of which will constitute one and the same instrument and all of which shall constitute one original. A facsimile delivery by a party of an executed copy of this Agreement shall be binding on the party upon such delivery.  This Agreement will be binding with respect to all parties hereto and their heirs, assigns, administrators, and executors.