Non-Disclosure Agreement
PROSPECTIVE BUYER’S SIGNED RETURN TO BLUE RIDGE BROKERAGE OF THIS AGREEMENT WILL CONSTITUTE ACCEPTANCE OF TERMS AND CONDITIONS BELOW AND WILL BIND THEM TO THE NON-DISCLOSURE AGREEMENT. THIS IS A LEGAL DOCUMENT. PROSPECTIVE BUYER ACKNOWLEDGES IT HAS HAD THE OPPORTUNITY TO RETAIN COUNSEL OF ITS CHOICE WITH RESPECT TO THIS AGREEMENT.
WHEREAS, the undersigned Prospective Buyer(s) and Blue Ridge Brokerage (collectively referred to as “the Parties” or individually as the “Party” as appropriate) have entered into discussions in connection with a possible transaction between them, including, but not limited to, an acquisition of the Business or Businesses of Interest below (the “Transaction”).
WHEREAS, the Prospective Buyer(s) hereby acknowledge receipt of Confidential Information (as defined herein) about a Business or Businesses of Interest represented by Blue Ridge Brokerage for the purpose of determining the viability of the Transaction. Prospective Buyer(s) acknowledge they will not contact the owner or employees of any Business of Interest without permission from the Broker. This agreement applies to all businesses disclosed to the Prospective Buyer(s) and represented by Blue Ridge Brokerage.
NOW, THEREFORE, in consideration for Blue Ridge Brokerage’s disclosure of Confidential Information to Prospective Buyer, Prospective Buyer(s), intending to be legally bound, hereby agree as follows:
1. Definition of Confidential Information. The “Confidential Information” about a business/businesses represented by Blue Ridge Brokerage as used in this Agreement shall mean any information or materials provided by such business/businesses represented by Blue Ridge or its representatives, including the Business or Businesses of Interest below, to the Prospective Buyer or its representatives, including without limitation, any information relating to the disclosing party or discussions concerning the prospective transaction, whether written or oral, and including the terms of this Agreement. Without limiting the generality of the foregoing, Confidential Information includes, but is not limited to, the following types of information, and other information of similar nature (whether or not reduced to writing or still in development): designs, concepts, drawings, ideas, inventions, specifications, techniques, discoveries, models, data, diagrams, flow charts, research, development, processes, procedures, know-how, new product or new technology information, marketing techniques and materials, marketing plans, timetables, strategies and development plans, customer names and other information related to customers, pricing policies, financial information, software and documents. The term Confidential Information shall also include trade secrets, which for purpose of this Agreement with respect to a Business or Businesses of Interest, any and all information related to the products, services and/or business of the Party and/or its affiliates which (i) derives actual or potential economic value from not being generally known to or readily ascertainable by other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts by the business and/or its affiliates that are reasonable under the circumstances to maintain its secrecy.
Confidential Information does not include information that Prospective Buyer can document that (i) it was in the public domain at the time it was communicated to the Prospective Buyer; (ii) it entered the public domain subsequent to the time it was communicated to Prospective Buyer by the other Party through no fault of the Prospective Buyer; or (iii) it was required by law to be disclosed, subject to those obligations to narrow scope as outlined in Section 2 of this Agreement.
2. Handling of Confidential Information. The Prospective Buyer agrees to hold in confidence and not to disclose or reveal, or cause to be disclosed or revealed to any person or entity, the Confidential Information received hereunder without the clear and express written consent of the Broker. The Prospective Buyer agrees to not use or disclose any of the Confidential Information received hereunder for any purpose at any time, other than for the limited purpose of determining the viability of the possible Transaction. The Prospective Buyer shall use the same degree of care of maintaining the confidentiality of the Confidential Information as it uses with respect to its own information that is regarded as confidential and/or proprietary by such Party, but in any case shall at least use reasonable care. Without limiting the generality of the foregoing, the Prospective Buyer shall not disclose any Confidential Information to any of their employees or agents except those who are required to have such Confidential Information in order to perform their functions in connection with the limited purpose of determining the viability of the possible Transaction. In the event any Confidential Information is disclosed to any employees or agents of Prospective Buyer, the Prospective Buyer represents and warrants such disclosure will not result in a breach of any obligation hereunder.
In the event any Confidential Information is required to be disclosed by a party under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, or by a demand or information request from an executive or administrative agency or other governmental authority, the party requested or required to disclose such Confidential Information shall, unless prohibited by the terms of a subpoena, order, or demand, promptly notify the Broker of the existence, terms and circumstances surrounding such demand or request, shall consult with the Broker on the advisability of taking legally available steps to resist or narrow the scope of disclosure and obtain an order or other reliable assurance that confidential treatment will be accorded to such Confidential Information. To the extent the Prospective Buyer is prohibited from notifying the Broker of a subpoena, order or demand, by the terms of the same, the Prospective Buyer shall exercise its reasonable efforts to narrow the scope of disclosure of the Confidential Information.
3. Handling and Return of Tangible Confidential Information. It is understood that Blue Ridge Brokerage or the Business of Interest may furnish to the Prospective Buyer certain materials, either in writing or otherwise fixed in tangible form. The Prospective Buyer agree that any and all of these materials shall be furnished in confidence and all of the terms and conditions of this Agreement shall apply to the disclosure or furnishing of these materials. The Prospective Buyer will not alter or modify any of these materials without the prior written consent of Blue Ridge Brokerage. The Prospective Buyer agree to return to Blue Ridge Brokerage or destroy upon Blue Ridge Brokerage’s written request any and all of these materials, together with any copies (including, but not limited to, complete or partial copies incorporated into other materials) that may have been made, promptly upon the request of Blue Ridge Brokerage or, if not requested earlier, promptly after the purpose(s) for which they were furnished have been accomplished or abandoned.
4. No Grant of Rights. The Parties recognize and agree that nothing in contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information disclosed pursuant to this Agreement, or to any invention or any patent, mask work right, copyright, trademark or service mark, or other intellectual property right of the Business or Businesses of Interest that has issued or may issue, based on such Confidential Information. The Proposed Buyer shall not make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the Business or Businesses of Interest. Nothing in this Agreement shall be construed as creating any obligation on the part of Blue Ridge Brokerage or the Business or Businesses of Interest to disclose any Confidential Information whatsoever.
5. Term and Termination. This Agreement shall terminate (i) two (2) years after its execution; (ii) earlier upon written agreement of the Parties; or (iii) upon withdrawal or consummation of the Transaction. The Prospective Buyer obligations under this Agreement with respect to Confidential Information it has received prior to termination of this Agreement shall survive termination of this Agreement and shall be binding upon the Prospective Buyer and their respective heirs, successors and permitted assigns for a period of three (3) years after termination of this Agreement.
6. No Requirement of Entering Business Relationship. Notwithstanding any confidentiality obligations contained herein, the Parties may terminate discussions regarding the Transaction at any time. Nothing contained in this Agreement shall be construed as creating any obligation or an expectation on the part of Blue Ridge Brokerage or the Business or Businesses of Interest to enter into a business relationship with the Prospective Buyer, including the Transaction, or an obligation to refrain from entering into a business relationship with any third party. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, employment relationship, or any business relationship between the Parties. Except as specified herein, no Party herein shall have the right, power or implied authority to create any obligation or duty, express or implied, on behalf of any other Party hereto.
7. Non-Solicitation of Employees Covenant. The Prospective Buyer agree that during the term of this Agreement and for the period of three (3) years after the termination of this Agreement, it will not, either directly or through others, hire, solicit or attempt to solicit any employee, consultant or independent contractor of the Business or Businesses of Interest to become an employee, consultant or independent contractor to or for itself or any other person or entity, except relationships that existed prior to this agreement and as may be expressly permitted by subsequent specific written agreement of the parties.
8. Non-Assignment. This Agreement shall not be assignable by either Party. The Prospective Buyer shall not delegate its duties hereunder, without the prior written consent of Blue Ridge Brokerage, which consent may be granted or denied in the sole discretion of Blue Ridge Brokerage.
9. Acknowledgement of Blue Ridge Brokerage’s Role in Transaction. The Prospective Buyer agrees to conduct all further inquiries regarding the possible Transaction exclusively through the office of the Broker, which Prospective Buyer acknowledge to be the agency first providing Confidential Information to Prospective Buyer. Prospective Buyer understand that Broker has entered into an agreement or contract with the owner or their authorized agent to represent the Business or Businesses of Interest which provides for commission payment to Broker. Prospective Buyer understands and acknowledges that Blue Ridge Brokerage represents the seller in the Transaction (Business or Businesses of Interest below).
10. Remedies for Breach. The Prospective Buyer understands and agrees that its breach or threatened breach of this Agreement will cause irreparable injury to Blue Ridge Brokerage and/or the Business or Businesses of Interest and that money damages, although allowable as a legal remedy, may not provide an adequate remedy for such breach or threatened breach, and the Prospective Buyer hereby agree that, in the event of such a breach or threatened breach, Blue Ridge Brokerage and/or the Business or Businesses of Interest will also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. The Parties’ rights under this Agreement are cumulative, and a Party’s exercise of one right shall not waive the Party’s right to assert any other legal remedy.
11. Waiver. All the rights and remedies of any Party under this Agreement are cumulative and not exclusive of any other rights and remedies provided by law. No delay or failure on the part of either Party in the exercise of any right or remedy arising from a breach of this Agreement shall operate as a waiver of any subsequent right or remedy arising from a subsequent breach of this Agreement. The consent of any Party where required hereunder to any act or occurrence shall not be deemed to be a consent to any other act or occurrence.
12. Governing Law. This Agreement shall be construed and enforced in accordance with the law of the State of North Carolina without regard to its principles or conflicts of law.