Individual Agency and Confidentiality
In connection with the undersigned’s ("Buyer") interest as prospective purchaser(s) in a possible transaction with certain businesses (“Prospective Businesses” and each a “Prospective Business”) represented by Portage M&A Advisory Inc. ("Portage”), the Buyer hereby requests that Portage, currently and from this time forward, provide the Buyer with certain information relating to the Prospective Businesses that is non-public, confidential, personal and/or proprietary in nature (“Confidential Information”) for the sole purpose of allowing the Buyer to consider a possible transaction with a Prospective Business (a “Prospective Transaction”).
For clarity, the term “Confidential Information” includes, without limitation: (a) any information of whatever nature or form relating to a Prospective Business, its business and affairs, or any customer of or supplier to the Prospective Business, regardless of whether such information was communicated orally, in writing or by electronic transmission, and (b) personal information relating to the employees, consultants, clients and service providers of the Prospective Business.
In consideration of Portage disclosing to the Buyer such Confidential Information, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Buyer hereby makes the agreements and acknowledgments hereinafter set forth, including the Buyer agreeing as followings:
Provided the Buyer complies with the terms of this agreement, the Buyer is encouraged to seek such independent and outside counsel (including by way of retaining legal and accounting professionals) as the Buyer deems necessary or advisable to make a fully-informed decision regarding a Prospective Transaction.
The Buyer hereby acknowledges and agrees that all information and materials with respect to each Prospective Business (including any Confidential Information) has been provided to Portage by the Sellers for the Buyer’s confidential use and for the sole purpose of allowing the Buyer to evaluate and/or complete a Prospective Transaction. The Buyer acknowledges that neither the Sellers nor Portage makes any express or implied representation or warranty as to the accuracy or completeness of the Confidential Information, and the Buyer agrees that neither the Sellers nor Portage shall have any liability, direct or indirect, to the Buyer or its Representatives relating to or resulting from the Confidential Information or the use thereof, errors therein or omissions therefrom, except in accordance with any specific representations and warranties that may be made by the Sellers in any definitive purchase agreement entered into by the Buyer and the Sellers (or any of them) in connection with a Prospective Transaction.
While statements may be presented by Portage to the Buyer concerning a matter of opinion, whether or not so identified, these are only statements of opinion. Portage makes no representations or warranties, expressed or implied, regarding the information provided to Buyer.
The Buyer acknowledges that a breach or threatened breach by the Buyer or its Representatives of their confidentiality obligations hereunder may result in the Sellers or Portage suffering irreparable harm which cannot be calculated or fully or adequately compensated by recovery of damages alone. Accordingly, the Buyer agrees that the Sellers and/or Portage will be entitled to interim and permanent injunctive relief, specific performance and other equitable remedies, in addition to any other relief to which the Sellers or Portage may become entitled, for any such breach.
Business opportunities, including the acquisition or disposition of, or investment in, a business, by their very nature, carry several different kinds of risk, including obsolescence or reduced demand for services or products, regulatory laws, ineffective management, changes in the local or national economic condition or laws, and many others. Due to the risks inherent in such business opportunities, a buyer could incur a significant loss (both monetary or otherwise), including but not limited to, a loss of their entire investment or capital. The Buyer hereby acknowledges that it understands these risks and that Portage cannot and does not in any way warrant or guaranty the future vitality or prospects of any business.
The Buyer hereby represents and warrants that (i) it has the capacity and authority to enter into this agreement and to perform its obligations under this agreement; (ii) that this agreement has been duly authorized by it (in the case of a person other than an individual), and duly executed and delivered by or on behalf of him, her or it, as the case may be, and constitutes a valid and binding obligation enforceable against him, her or it in accordance with its terms, subject to the usual exceptions as to bankruptcy and the availability of equitable remedies; and (iii) that the execution, delivery and performance of this agreement does not and will not contravene the provisions of its articles, by-laws, constating documents or other organizational documents or the documents by which it was created or established (in the case of a person other than an individual) or the provisions of any law, rule, regulation, indenture, agreement or other instrument to which he, she or it is a party or by which he, she or it may be bound.
Notwithstanding Portage’s engagement hereunder, but subject to its obligations with respect to any dual agency relationship, Portage shall not be prevented or restricted in any manner from providing any services for other clients.
Notwithstanding anything to the contrary, the covenants, agreements and undertakings of the Buyer contained in this agreement (including all confidentiality covenants) shall survive the expiration or termination of this agreement.
Neither party (i.e. Portage on the one hand and the Buyer on the other) may assign, transfer or delegate any of its rights or obligations hereunder without the prior written consent of the other party, provided however, that Portage may, without the consent of the Buyer, assign or subcontract its rights and obligations hereunder: (a) to any affiliate or related entity; (b) to any entity which acquires all or a substantial part of the assets or business of Portage; or (c) to a real estate brokerage firm licensed under the Real Estate and Business Brokers Act 2002, Ontario.
This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in Ontario. Any action or proceeding relating to this engagement shall be brought in the Province of Ontario, and the parties submit to the jurisdiction of the courts of the Province of Ontario.
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Document Name: Individual Agency and Confidentiality
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