Recitals
Recitals:
Buyer is considering the purchase of the Company (the “Acquisition Transaction”) and, in connection therewith, has requested access to certain information, properties, and personnel (which, for purposes of this Agreement, shall include employees and independent contractors) of the Company. Company desires to furnish access to such information, properties, and personnel of the Company as the Advisor, in its sole discretion, agrees to make available to Buyer on and subject to the terms and conditions of this Agreement.
The parties hereby agree as follows:
Confidential and Proprietary Nature of the Information. Buyer acknowledges the confidential and proprietary nature of the Confidential Information (as defined below), agrees to hold and keep the same as provided in this Agreement, and otherwise agrees to each and every restriction and obligation in this Agreement.
Confidential Information. As used in this Agreement, the term “Confidential Information” means and includes any and all of the following, whether heretofore or hereafter made available to Buyer:
trade secrets concerning the business and affairs of the Company, data, photographs, graphs, drawings, customer or supplier lists, price lists, market studies, business plans, computer software and programs (including object code and source code), computer software and database technologies,
information concerning the business and affairs of the Company (which includes historical financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, and however documented, that has been or may hereafter be provided or shown to Buyer by the Advisor or Company.
Exceptions. Confidential Information shall not include any information that Buyer demonstrates (a) is or becomes generally available to the public other than as a result of a disclosure by Buyer or Buyer’s Representatives or (b) is available, or becomes available, to Buyer on a non-confidential basis prior to its disclosure to Buyer by the Company or a Company Representative.
Restricted Use of Confidential Information. Buyer agrees that the Confidential Information (a) will be kept confidential by Buyer and Buyer’s Representatives and (b) without limiting the foregoing, will not be disclosed by Buyer or Buyer’s Representatives to any person (including current or prospective financing sources) except with the specific prior written consent of Eric Rollins (the “Company Contact”) or except as expressly otherwise permitted by the terms of this Agreement. It is understood that Buyer may disclose Confidential Information to only those of Buyer’s Representatives who (i) require such material for the purpose of evaluating a possible Acquisition Transaction (but to the extent practicable, only such part that is so required and without revealing the possible Acquisition Transaction), and (ii) are informed by Buyer of the confidential nature of the Confidential Information and the obligations of this Agreement. Buyer further agrees that Buyer and Buyer’s Representatives will not use any of the Confidential Information for any reason or purpose other than to evaluate a possible Acquisition Transaction. Buyer also agrees to be responsible for enforcing the terms of this Agreement as to Buyer’s Representatives and to take such action, legal or otherwise, to the extent necessary to cause them to comply with the terms and conditions of this Agreement and thereby prevent any disclosure of the Confidential Information by any of Buyer’s Representatives (including all actions that Buyer would take to protect its own trade secrets and confidential information).
Nondisclosure of Possible Acquisition Transaction. Except as permitted by the previous paragraph and except as expressly permitted by a definitive acquisition agreement, if any, entered into by Buyer for the acquisition of the Company, neither Buyer nor Buyer’s Representatives will disclose to any person (including another prospective purchaser who has been provided Confidential Information) the fact that the Confidential Information has been made available to Buyer or Buyer’s Representatives or that Buyer or Buyer’s Representatives have inspected any portion of the Confidential Information. Except with the prior written consent of the Company Contact and except as expressly permitted by a definitive acquisition agreement, if any, entered into by Buyer for the acquisition of the Company, neither Buyer nor Buyer’s Representatives will disclose the fact that any discussions or negotiations are taking place concerning a possible Acquisition Transaction, including the status of such discussions or negotiations.
Company Contact. All requests by Buyer or Buyer’s Representatives for communication, including but not limited to Confidential Information, meetings with Company personnel or Company Representatives, or inspection of the Company’s properties must be made to the Company Contact.
Legal Proceedings. If Buyer or any Buyer Representative is requested or become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar process) or is required by a regulatory body to make any disclosure that is prohibited or otherwise constrained by this Agreement, Buyer or such Representative, as the case may be, will provide the Company with prompt notice of such request so that it may seek an appropriate protective order or other appropriate remedy. Subject to the foregoing, Buyer or such Representative may furnish that portion (and only that portion) of the Confidential Information that, in the written opinion of its counsel reasonably acceptable to the Company, Buyer is legally compelled or is otherwise required to disclose or else stand liable for contempt or suffer other material censure or material penalty; provided, however, that Buyer and Buyer’s Representatives must use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so disclosed.
Contact with Employees and Independent Contractors. Without the prior written consent of the Company Contact (a) neither Buyer nor any of Buyer’s Representatives will initiate or cause to be initiated (other than through the Company Contact) any communication with any employee or independent contractor of the Company concerning the Confidential Information or any possible Acquisition Transaction, and (b) Buyer and Buyer’s Representatives will not, for a period of two years after the date of this Agreement, directly or indirectly solicit, entice, or encourage any person who is now employed or engaged by the Company to leave his or her employment with, or engagement by, the Company, or employ or engage, or attempt or agree to employ or engage, in any capacity, the services of any such person, or aid or assist anyone else to do so.
Return of Confidential Information. If Buyer determines that it does not wish to proceed with an Acquisition Transaction (and Buyer will promptly notify the Company Contact of such decision) or if the Company or Advisor notifies Buyer that it does not wish Buyer to consider the Acquisition Transaction any further, then (a) Buyer (i) will promptly deliver to the Company Contact all documents or other materials furnished by the Company or any Company Representative to Buyer or Buyer’s Representatives, including Confidential Information, together with all copies and summaries thereof in the possession or under the control of Buyer or Buyer’s Representatives, and (ii) will destroy materials generated by Buyer or Buyer’s Representatives that include or refer to any part of the Confidential Information, without retaining a copy of any such material or (b) alternatively, if the Company Contact requests or gives his prior written consent to Buyer’s request, Buyer will destroy all documents or other matters constituting Confidential Information in the possession or under the control of Buyer or Buyer’s Representatives. Any such destruction pursuant to the foregoing must be confirmed by Buyer in writing to the Advisor (such confirmation must include a list of the destroyed materials).
No Obligation to Negotiate a Definitive Agreement. The Company’s owners reserve the right, in their sole discretion, to reject any and all proposals made by Buyer or Buyer’s Representatives with regard to an Acquisition Transaction and to terminate discussions and negotiations with Buyer and Buyer’s Representatives at any time. Without limiting the preceding sentence, nothing in this Agreement requires either Buyer or the Company’s members to enter into an Acquisition Transaction or to negotiate such transaction for any specified period of time.
No Representations or Warranties. The Company retains the right to determine, in its sole discretion, what information, properties, and personnel it wishes to make available to Buyer, and neither the Company nor its Representatives make any representation or warranty (express or implied) concerning the completeness or accuracy of the Confidential Information, except pursuant to representations and warranties that may be made to Buyer in a definitive acquisition agreement for an Acquisition Transaction if, when, and as executed and subject to such limitations and restrictions as may be specified therein. Buyer also agrees that if Buyer determines to engage in an Acquisition Transaction, Buyer’s determination will be based solely on the terms of such definitive acquisition agreement and on Buyer’s own investigation, analysis, and assessment of the business to be acquired. Moreover, unless and until such a definitive written agreement is entered into, neither the Company nor Buyer will be under any legal obligation of any kind with respect to such an Acquisition Transaction, except for the matters specifically agreed to in this Agreement or in another written agreement.
Remedies. Buyer agrees to indemnify and hold the Advisor, the Company and its owners harmless from any damages, loss, cost, or liability (including legal fees and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized use or disclosure by Buyer or Buyer’s Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether pursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by Buyer or Buyer’s Representatives and any such breach would cause the Company irreparable harm, Buyer also agrees that, in the event of any breach or threatened breach of this Agreement, the Company will also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or equity to the Company
Miscellaneous.
Modification. The agreements set forth in this Agreement may be modified or waived only by a separate writing signed by the Company and Buyer expressly modifying or waiving such agreements.
Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (i) no claim or right arising out of this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (ii) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement.
Disclaimer. Under no circumstances does Eric Rollins or OptiRova LC provide licensed legal, securities, or accounting services. Buyer is advised to additionally seek these services from qualified parties when desired. Nothing herein shall be interpreted as a securities transaction or sale of real property by Rollins or OptiRova LLC.
Person. The term “person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.
Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. If any of covenant or provision of this Agreement is determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope or other aspect of the covenant or provision and enforce it in its reduced form for all purposes contemplated by this Agreement.
Costs. Buyer agrees that if it is held by any court of competent jurisdiction to be in violation, breach, or nonperformance of any of the terms of this Agreement, then it will pay all costs of such action or suit, including reasonable attorneys’ fees.
Assignment. The Company reserves the right to assign all of its rights under this Agreement, including the right to enforce all of its terms.
Section Headings, Construction. The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement unless otherwise specified. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word “including” does not limit the preceding words or terms.
Jurisdiction; Service of Process. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against either of the parties in the courts of the State of Michigan, and each of the parties consent to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any party anywhere in the world.
Governing Law. This Agreement will be governed by the laws of the State of Michigan without regard to conflicts of laws principles.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, shall be deemed to constitute one and the same agreement.
Signed as of the date first set forth above.
COMPANY:
OptiRova, LLC and the Companies
Eric Rollins, Member
