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 the 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, as a
member of a partnership, 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 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) In addition to the prohibition against utilizing trade secret(s), Buyer will not utilize any other
furnished information for any purpose other than evaluating the possible purchase of the Business,
specifically including, without limitation, not utilizing same 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 three (3) years from the date hereof and shall be applicable to competition within the presently
existing marketing area of the Business. Geographically, this non-competition prohibition shall
extend to at least any counties in which the Business conducts any operations and the immediate
adjacent counties.
(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 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 the evaluation of the Information and all other factors
relating to the Business.
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. 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 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 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 Broker, with the commission
being defined as the amount agreed upon by Broker and Seller in the "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 Listing 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 Listing 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 and construction of this Agreement shall be governed by the laws of the State
of California. All sums due hereunder shall be payable at the office of the Broker in Orange County,
California and all parties hereto agree to forbear from filing a claim in any other jurisdiction.
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 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.
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. A facsimile transmission of this document is legal and binding. |