Non-Disclosure Agreement
The undersigned (the “Buyer") understands and acknowledges that Empire Business Associates Inc.,
(the “Broker") has an agreement with owner(s) (the “Seller") of businesses and/or property(ies) that
Buyer has expressed interest in exploring and or acquiring from Seller(s) (“Business"), whereby Broker
has been retained to represent Seller(s) in the sale of their Business. Buyer understands and
acknowledges the Broker is acting as the agent of the Seller(s) and that Broker's primary duty is to
represent the interests of the Seller(s).
In consideration of the provision of information concerning a Business offered for sale through Broker,
Buyer hereby agrees, acknowledges, and understands, in order to induce Broker or Seller(s) to furnish
certain information regarding the Business(s) described below (the “Information”) to Buyer for Buyer’s
evaluation and possible purchase of said Business(s) and in consideration for Broker’s or Sellers’
furnishing such information, Buyer represents and warrants to Broker and to each Seller the following:
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.
1. The provisions hereof may not be assigned, modified, amended, supplemented, or rescinded
without the written consent of Broker and this Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter described herein. The
word "Buyer,” as used herein, shall mean and include the undersigned individually, and the
principal when acting as a partner of a partnership, member, or manager of a limited liability
company, trustee, or beneficiary of a trust, as an agent, stockholder, officer, or director of a
corporation, as an agent, adviser, or consultant for or to any business entity, as the case may
be, and in any other capacity the undersigned may be acting. “Information” shall include any
information concerning the identity of a Business, the assets of a Business, the operation of its
business, and any and all other confidential information related to or concerning such Business,
including but not limited to financial statements or summaries, accounting records, contracts,
correspondence, or any other information regarding the Business’s assets or business
operations generally, information relating to the employees, vendors, customers, products,
prospects, margins, pricing, or marketing of such Business, whether or not such material is
specifically marked or designated as confidential. Buyer acknowledges that all such Information
is of a proprietary and confidential nature, and that the disclosure of Information to any other
party will result in damage to the Seller(s) and/or Business. Buyer therefore acknowledges,
represents, warrants, and agrees to the following:
a. The Information furnished by Broker or a Seller has not been publicly disclosed,
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 person or entity
other than persons within Buyer's organization, including independent
advisers/consultants, who need to know such Information for purposes of
evaluating or structuring the possible purchase of the Business. Buyer accepts
full responsibility for complete compliance with all provisions of this Agreement
by such other persons and agrees to inform each such person of the
confidentiality requirements contained herein.
c. In addition to the prohibition against utilizing trade secret(s), Buyer will not utilize
any other Information for any purpose other than evaluating the possible
purchase of the Business. The foregoing prohibition against utilizing Information
shall continue in perpetuity.
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d. Buyer may not, at any time, contact the Seller or Seller’s employees, customers,
suppliers, or agents other than through Broker for any reason whatsoever without
the prior written consent of the Seller.
This Agreement shall remain in effect for a period of three (3) years from the date hereof and
shall apply to all Sellers and Businesses Buyer examines in cooperation with Broker. Each
Seller is identified and named as a third party beneficiary to this Agreement. This Agreement is
made for the benefit of the Seller(s) and the Broker and may be enforced by Broker or any
Seller. In addition, any Seller may require their own additional confidentiality agreement prior to
disclosing some or all of its confidential information.
As further consideration, and to induce Seller(s) to make the disclosure of Information to Buyer
hereunder, Buyer agrees that it shall not, directly or indirectly, solicit, contact or engage any
employee or contractor of the Business to terminate their relationship with a Seller, or otherwise
interfere with employment or engagement with such Seller for a period of three (3) years from
the later of the date of this Agreement or the date Buyer was introduced to such Seller.
The Information furnished by Broker has been prepared by or is based upon representations of
the Seller(s), and Broker has not made and is not expected to make any independent
investigation or verification of said Information. Buyer represents and warrants that it will
conduct its own due diligence into any Broker or Seller provided information, and verify to its
own satisfaction any representations made by Seller or Broker in any prepared documentation
or marketing materials, including but not limited to any cash flow analysis or confidential
memorandums provided or compiled by Broker. 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 performing its own due diligence and evaluating the Information and all other factors relating
to any Business. Buyer expressly waives, disclaims, and releases Broker from any duty to
disclose any updated or inaccurate information, whether positive or negative and whether or not
any such update would tend to make any earlier disclosure by Broker or Seller not misleading.
Buyer and Seller(s), along with their respective advisers, representatives or counsel, will solely
handle all updated information and information requests or due diligence.
Indemnification/Attorneys Fees: Buyer agrees to indemnify, defend and hold Broker, its
agents, employees, officers, directors, shareholders, co-brokers and affiliates, harmless for or
from any and all claims, demands, causes of action or liability whatsoever, including costs,
expenses and reasonable attorney’s fees, arising out of 1.) any and all claims or actions arising
from Buyer's acts in pursuing the possible purchase of the Business and any breach or
circumvention of this Agreement by Buyer, or 2.) any claim by Buyer against Broker that any
information provided by Seller to Broker or to Buyer, or from Broker to Buyer was inaccurate,
misrepresented, fraudulent, untruthful, incomplete, or for any omission of information that should
have been provided. Buyer specifically covenants not to sue Broker for and agrees not to name
Broker in any suit between Buyer and Seller relating to misrepresentation, breach of contract,
fraud, fraud in the inducement or otherwise.
Buyer represents that Buyer has sufficient financial resources to complete the transaction for
the asking price and terms set forth on the listing related to any Business it requests Information
about.
In the event Buyer purchases any Seller's assets in a reorganization, bankruptcy, auction,
secured party sale, including directly or indirectly, individually or in conjunction with others or
through the forming of a new entity, partnership, joint venture, or any other method where the
Broker's commission or fee is compromised, Buyer shall individually assume and agrees to pay
the full Broker’s commission or fee in the "Standard Listing Agreement" or similar agreement
between the Seller and Broker.
In the event Buyer purchases the assets or business of Seller at any time during the term of this
agreement or the term of the listing agreement between Broker and Seller, Buyer agrees that
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Broker shall be entitled to receive its commission at and out of the closing proceeds, and as a
condition of such closing.
9. Buyer will not, for a period of three (3) 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 at the
Closing, 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. Buyer authorizes
and instructs any person or entity who may be handling the closing of the Business to pay and
disburse out of the purchase proceeds directly to Broker, an amount equal to the commission
owed by the Seller due Broker under the terms of the Listing Agreement, and specifically directs
such persons to pay such commission or hold the amount of claimed commission in escrow for
the benefit of Broker. If Buyer violates the foregoing provision, Buyer will be liable for and pay
the amount of the commission to Broker upon demand without any obligation on Broker's part to
first exhaust any legal remedies against Seller.
10. This Agreement shall become effective on the date set forth below. The Buyer’s obligations of
confidentiality and all other provisions that extend beyond the term of this Agreement shall
survive the termination of this Agreement.
11. The performance and construction of this Agreement shall be governed by the laws of the State
of Ohio, with jurisdiction and venue vested in the courts of Cuyahoga County, Ohio. All sums
due hereunder shall be payable at the office of the Broker in Cuyahoga County, Ohio.
12. 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.
13. The parties hereby agree that a facsimile or Emailed copy of this Agreement will be deemed an
original for all purposes, and each hereby waives the necessity of providing the original copy of
this Agreement.
14. The terms and conditions of this Agreement shall apply to and govern each and any business
and/or property in which Broker has been retained to represent the owner(s) in the sale thereof
and Broker or owner(s) have furnished Information to Buyer. Further, it shall not be necessary
for Buyer to execute any additional Buyers Acceptance: I acknowledge that I have received, read, and
understand this Agreement. I further acknowledge that I have had the opportunity to consult with my
attorney regarding this Agreement:
EXECUTED ON THIS
DAY OF
, 2013.
PRINT NAME
SIGNATURE (Individually and as Duly Authorized Representative)
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