AND NON-DISCLOSURE AGREEMENT
The undersigned (the "Buyer") understands and acknowledges that Cabot Business Brokers (the "Broker") has a valid agreement with the owner(s) (the "Seller") of the business and/or property described below (the "Business") whereby Broker has been retained, for an agreed upon commission, to represent Seller in the sale of the Business. Buyer understands and acknowledges the Broker is acting as the agent of the Seller and that Broker's primary duty is to represent the interests of the Seller. The Business that is the subject of this Standard Buyer's Confidentiality and Non-Disclosure Agreement (the "Agreement") is as follows:
Description of Business:
In order to induce Broker 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 Broker's or Seller's furnishing such information, Buyer understands, agrees, represents and warrants to Broker and Seller as follows:
1. The word "Buyer," as used herein, shall mean and include the undersigned individually and/or as a member of a partnership, as a member or manager of a limited liability company, 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 Broker or Seller has not been publicly disclosed, has not been made available to Buyer by any party or source other than Broker 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 Information provided by Broker for any purpose other than evaluating the possible purchase of the Business, including, without limitation, not utilizing the aforesaid Information in the conduct of Buyer's or any other party's present or future business(es). This prohibition includes, but is not limited to using said Information to enter into and/or engage in competition with the Business or assist or promote any other party(s) in so doing. The foregoing prohibition against utilizing said Information in competing with the Business shall remain in effect for two (2) years from the date hereof and shall be applicable to competition within the presently existing and/or planned marketing area of the Business.
(F) If Buyer decides not to pursue the possible purchase of the Business, Buyer will promptly return to Broker all Information previously furnished by Broker 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 Broker for any reason whatsoever without the prior consent of the Broker. All contacts with the Seller or such other parties will be made through or by Broker unless otherwise agreed to by Broker, in writing.
4. The Information furnished by Broker has been prepared by or is based upon representations of the Seller and Broker has made no independent investigation or verification of said Information. Buyer understands and accepts that the Information is provided on an “AS IS” basis without warranties of any kind, either express or implied, including but not limited to, warranties of title, non-infringement or implied warranties of merchantability of fitness for a particular purpose. Buyer represents and warrants that it will conduct a complete due diligence investigation to verify all Information before completing a purchase of the Business. Buyer hereby expressly releases and discharges Broker 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 evaluating the Information and all other factors relating to the Business.
5. The Information is subject to change or withdrawal without notice. Further, the solicitation of offers for the purchase of the Business is subject to withdrawal of such solicitation without notice.
6. Buyer will indemnify and hold harmless the Broker and Seller from any and all claims or actions arising from Buyer's acts or failures to act either of which constitute negligence, gross negligence or intentional misconduct in pursuing the possible purchase of the Business, including, without limitation, reasonable attorney's fees and other expenses incurred by Broker.
7. Buyer will not, for a period of two (2) years from the date hereof, enter into any agreement for the purchase of the 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 Broker, with the commission being defined as the amount agreed upon by Broker and Seller in the "Standard Listing 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 Broker 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 Broker 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 Broker and Seller in the aforesaid agreement between those parties will be made known to Buyer by Broker, 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 Broker upon demand without any obligation on Broker's part to first exhaust any legal remedies against Seller.
8. 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 Broker or Seller, financial statements, references and other pertinent information evidencing such financial sufficiency.
9. The performance, interpretation and construction of this Agreement shall be governed by the laws of the Commonwealth of Massachusetts.
10. 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.
11. Any controversy, claim, or threatened litigation arising out of or concerning the construction, interpretation, application or enforcement of this Agreement, shall be exclusively determined by binding arbitration in accordance with the Rules of the American Arbitration Association through its Boston, Massachusetts office 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. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction thereof. The Arbitrator shall award the expenses of arbitration conducted pursuant to this paragraph to the prevailing party, including reasonable attorney’s fees and costs.
12. The terms and conditions of this Agreement shall also apply to any other business and/or property on which Broker has been retained to represent the owner(s) in the sale thereof and on which Broker 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 Broker or owner(s) initially furnished information to Buyer on such other business and/or property.
13. The provisions hereof cannot be modified, amended, supplemented or rescinded without the written consent of Broker and this Agreement sets forth the entire agreement and understanding.
14. This Agreement may be executed in counterparts. A facsimile, PDF or electronic signature shall be acceptable as an original.
EXECUTED ON THIS ________________ DAY OF _________________________, 20___.
Printed Name of Signatory Signature (Individually and as Duly Authorized Rep.)
__________________________________________ ____________________________________________ Street Address Company Represented (If any)
City, State, Zip Code Email Address
Office/Home Telephone Cell Phone
Dollars Available for Down Payment & Working Capital:
1. Cash from Savings (on Hand & Accessible)
[ ] Less than $50,000, [ ]$50,000 to $100,000, [ ]$100,000 to $200,000, [ ]$200,000 to $300,000,
[ ]$300,000 to $500,000, [ ]$500,000 to $1,000,000, [ ]$1,000,000 to $4,000,000, [ ]$5,000,000 or more
2. Stocks, Bonds & Other Securities $ _______________________
3. Equity in Real Estate (R/E market Value minus Mortgage Balance) = $___________________
4. Cash from Other Sources. Amount: $_________________, Source ________________________
Please return by email to
CABOT Business Brokers LLC, P.O. Box 498, Hingham, MA 02043 (Tel 781-783-6998).