Confidentiality Agreement for Business Ref SL00239 , Broker Name James Brinkmeyer
The undersigned prospective purchaser ("Buyer") hereby requests receipt of confidential information, currently and from this time forth, on one or more businesses represented by LINK. Buyer hereby acknowledges that LINK is the first person to provide such information to Buyer. In consideration of LINK's providing such information, the Buyer hereby accepts, acknowledges and agrees:
AGENCY DISCLOSURE AND AGREEMENT
- Any and all information LINK provides about a business was provided to LINK by the business owner, and LINK makes no representations or warrantees as to its accuracy or completeness. Buyer is solely responsible for investigating all aspects of the business and obtaining any legal, tax or other advice Buyer deems necessary, prior to purchasing the business.
- Any information Buyer is given about a business, including, especially, its availability for acquisition, shall be treated as strictly confidential and proprietary. Buyer shall not directly or indirectly disclose, without LINK's prior written consent, any such information to any third party except Buyer's representatives/affiliates engaged in evaluating the information, and shall obtain the agreement of such third parties to maintain such confidentiality. If Buyer decides not to purchase the business, Buyer shall promptly notify LINK of this fact and shall promptly return all documentation and confidential information, including, without limitation, summaries, analyses or extracts. Any unauthorized disclosure shall constitute a material breach of Buyer's duty to the Seller and LINK, and could result in legal recourse against the Buyer. Buyer shall indemnify, defend and hold LINK harmless from and against any liability, damage, cost or expense (including attorneys' fees and the cost of enforcing this indemnity) resulting from such unauthorized disclosure.
- The Seller of each business about which Buyer shall be given information by LINK has entered into an agreement providing that Seller shall pay a fee to LINK if, during the term of that agreement or within twenty-four (24) months thereafter, the business is directly or indirectly transferred to a buyer introduced by LINK. Should Buyer, a member of Buyer's family, or anyone with whom Buyer is directly or indirectly affiliated acquire any interest in, or become affiliated in any capacity with such a business, Buyer shall cooperate with LINK to the extent necessary to protect its right to a fee from the Seller.
- Buyer shall conduct all inquiries into any business about which LINK provides information and discussions with its owner(s) and/or management solely through LINK, and shall not directly or indirectly contact the owner, employees or other representatives of the business except by prior written consent from LINK.
- If Buyer breaches the terms of this Agreement or in any way interferes with LINK's right to a fee, Buyer shall be liable for such fee and any other damages, including attorney's fees and litigation costs. Buyer recognizes that if Buyer fails to perform, observe or discharge any of its confidentiality obligations under this agreement, such breach would cause Link irreparable harm and would interfere with LINK's right to a fee. LINK, therefore, is hereby authorized to demand specific performance of this agreement and is entitled to temporary and permanent injunctive relief, without the requirement of posting a bond or other security, in a court of competent jurisdiction at any time when Buyer fails to comply with any of the provisions of this agreement applicable to Buyer, or otherwise fails, or threatens to fail, to comply with any of the provisions of this agreement applicable to Buyer.
- Buyer understands and agrees that LINK may act as a dual agent representing both Seller and Buyer, as set forth in the Disclosure Regarding Agency Relationship executed concurrently herewith, if applicable.
- This agreement contains the sole and entire agreement between the parties regarding its subject matter. The parties acknowledge and agree that neither of them has made any representations or promises with respect to the terms and conditions of this agreement or any representations or promises inducing the execution and delivery hereof, except such representations and promises which are expressly stated herein. Each party acknowledges its reliance on its own judgment in entering into this agreement and having had the opportunity to have the agreement reviewed by others, including legal counsel. The parties further acknowledge that any statements or representations previously made by either of them to the other are void and of no effect and that neither of them has relied thereon in connection with their dealings with the other. Any amendment or modification to this agreement shall be valid only if the parties have duly executed such modification, in writing, and it has been signed by the party against whom enforcement may be sought. Further, this Agreement is non-negotiable; no evidence of any modification, amendment or waiver shall be offered or received in evidence in any proceeding or litigation between the parties arising out of or affecting this agreement, or the rights or obligations of any party hereunder, unless the same is in writing and has been duly executed by LINK. This agreement and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of Missouri, without regard to choice or conflict of laws rules.
- Buyer acknowledges receiving a duly executed copy of this agreement.
- The undersigned executes this agreement on behalf of Buyer and warrants that he/she is duly authorized to do so.
AGENCY AND DUAL AGENCY: When a broker lists a business for sale, the broker becomes a "seller's agent" representing the seller. The same broker also often represents prospective buyers, and by the nature of that representation, becomes a "buyer's agent" as well; this is called "dual agency." Although a buyer and seller are sometimes represented by different agents of the same brokerage firm, this is also a dual agency, because the broker who employs each of the agents is really the agent for both parties.
REAL ESTATE BROKER DISCLOSURE: Attached hereto is the "Missouri Broker Disclosure Form," which requires disclosure of some concepts and definitions concerning the relationship between a client and an agent in the sale of real estate. While the use of the form prescribed by Missouri law is only applicable to a business transaction involving real estate, the information is informative for a business transaction not involving real estate as well. You are requested to read it carefully and acknowledge that you have been advised of its contents.
FULL DISCLOSURE: The buyer and the seller of a business are each required to fully and fairly disclose to the other any and all information which is known to that party, or reasonably should be known, and which may or will be "material" to the other party's decision to enter into the transaction. An agent must fully disclose all relevant information known to the agent to the party or parties that the agent represents. A dual agent may disclose any information to one client that the agent gains from the other client if the information is material to the transaction, unless it is designated as confidential from the client or considered confidential information under Missouri law. Further, the dual agent may disclose confidential information of a client where required by statute, rule or regulation, failure to disclose the information would constitute a misrepresentation or where disclosure is necessary to defend the agent against an action of wrongful conduct.
CONFIDENTIAL INFORMATION: Notwithstanding the foregoing, the following information shall not be disclosed by a dual agent without the consent of the client to whom the information pertains: (i) that a buyer is willing to pay more than the purchase price offered for the business or a particular asset, (ii) that a seller is willing to accept less than the asking price for the business or any particular asset, (iii) what the motivating factors are for any client buying or selling a business or any particular asset, (iv) that a client will agree to financing terms other than those offered, and (v) the terms of any prior offers or counter-offers made by any party. This is the only way negotiations can be conducted when the broker represents both the buyer and the seller.
ACKNOWLEDGMENT OF DISCLOSURE AND CONSENT TO DUAL AGENCY: Each party, by signing below, acknowledges and agrees that:
(a) The party has carefully read and fully understands the matters discussed above and on the Missouri Broker's Form (if the business transaction involves real estate), and has had the opportunity to ask questions and/or to seek the advice of legal counsel prior to signing below.
(b) The seller consents and agrees that the broker representing said party may, in his discretion, act as an agent for any buyer or prospective buyer as well as for the seller, as explained above and on the Missouri Broker's Form (if the business transaction involves real estate), and agrees to the conditions stated above.
(c) The buyer consents and agrees that the broker representing the seller will continue to do so even though said broker will also represent the buyer as a dual agent, understands all of the information stated above and on the Missouri Broker's Form (if the business transaction involves real estate), and consents to such dual agency.
This form may be signed in counterparts. Not all signatures are required to appear on the same copy. Facsimile signatures are acceptable and binding.