This CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (this “Agreement”) is entered into effective as of 
, by and between Summit M&A Advisors, LLC, a Missouri limited liability company (the “Company”) and a , including both parties’ subsidiaries and Affiliates. As used in this Agreement, the term “Affiliate” means any entity (including any entity acquired or created after the date of this Agreement) that directly or indirectly, controls, or is controlled by, or is under common control with the applicable party.
WHEREAS, Company and Buyer plan to engage in discussions relating to an entity, , seeking to sell part of or the entirety of its business, whereby Company will act as broker in the potential purchase/sale of Seller’s business (“Proposed Transaction”);
WHEREAS, in order to engage in such discussions, Buyer and Company acknowledge that Company may disclose to Buyer certain confidential information concerning Seller’s business related to the prospective purchase for use by Buyer solely in connection with engaging in these discussions and in connection with the Proposed Transaction and agree to keep all information (as defined in this Agreement, including Confidential Information as defined below) strictly confidential;
NOW, THEREFORE, for and in consideration of the promises and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows:
1. Confidential Information. As used in this Agreement, “Confidential Information” means any and all non-public information relating to the disclosing party, Seller, subsidiaries and affiliates or their respective businesses which is furnished to the other party or to which the disclosing party provides the receiving party access, in either case whether such information is furnished or made accessible in writing, orally, visually, electronically or by any other means and without regard as to whether such information has been identified as being confidential. Such information includes, without limitation, all product designs, specifications, process control plans, process flow diagrams, concepts, ideas, inventions, systems,
controls, marketing plans, business plans, designs, proposals, studies, sales forecasts or figures, budgets and other financial information, as well as the identity of or any information provided by or related to any customer or supplier, and any of the foregoing information owned by third parties to whom a disclosing party hereunder owes an obligation of confidence. “Confidential Information” shall also include: (a) the fact that Confidential Information of any party has been made available pursuant to this Agreement; (b) the fact that any discussions or negotiations are taking place concerning the possible business relationship; and (c) all terms, conditions or other facts with respect to this Agreement or the possible business relationship.
Notwithstanding the foregoing, “Confidential Information” does not include any information that: (1) is or becomes publicly known or publicly available or otherwise in the public domain through no fault of the receiving party; (2) is already known to the receiving party at the time of disclosure; (3) is independently developed by the receiving party without the use of the information provided by the disclosing party; (4) is received by the receiving party from a third party under no obligation of confidentiality to the disclosing party; or (5) is required to be disclosed by order of court or governmental agency; provided, however, that in such a case, the receiving party will notify the disclosing party of such order in sufficient time for the disclosing party to seek a protective order or other appropriate relief.
2. Non-Disclosure and Non-Use of Confidential Information. For a period of two years, Buyer agrees to protect the Confidential Information, any information relating to Seller’s business, and the Proposed Transaction and shall use such Confidential Information only for the purpose of engaging in discussions with the Company or Seller in connection with the Proposed Transaction. Buyer shall not disclose or provide the Confidential Information or any summary or derivative thereof to any third party, including potential buyers of Seller’s business, without the express prior written consent of Seller in each instance.
3. Remedies. The Buyer hereby agrees and stipulates that (a) the restrictions contained in this Agreement are reasonable and necessary in order to protect Seller’s and Company’s legitimate business
interests and (b) in the event of any breach or violation of this Agreement or of any provision hereof by the Buyer, the Company and Seller will have no adequate remedy at law and will suffer irreparable loss and damage thereby. Buyer hereby further agrees and stipulates that in the event of any such breach or violation, either threatened or actual, the Company’s rights shall include, in addition to any and all other rights available to Company at law or in equity, the right to seek and obtain any and all injunctive relief or restraining orders available to it in courts of proper jurisdiction, so as to prohibit, bar, and restrain any and all such breaches or violations. Buyer shall pay any and all court costs, attorneys' fees, and related expenses
incurred by Company or Seller, as applicable, in enforcing any provision of this Agreement, including without limitation, obtaining the injunctive relief provided for herein. The Company further agrees that no bond need be filed in connection with any request by Company or Seller for a temporary restraining order or for temporary or preliminary injunctive relief. Seller shall be deemed a third-party beneficiary of this Agreement and shall have the ability to exercise all rights under this Agreement to protect its Confidential
Information or legitimate business interests as stated herein.
4. Contact. Not to contact the business owners or their landlords, employees, suppliers or customers except through Broker Company. All correspondence, inquiries, offers to purchase and negotiations relating to the purchase or lease of any business presented by Broker Company will be conducted exclusively through Broker Company. I/We understand that I/we could be personally liable for monetary damages if I/we contact a Seller directly or otherwise circumvent Broker Company and such contact and/or circumvention disrupts or otherwise affects a Seller’s business operations. And not to circumvent or interfere with Broker Company's contract with the Seller in any way.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.