top of page

Confidentiality Agreement
NDA

Scroll to bottom to sign.

Recitals

This Nondisclosure Agreement (this "Agreement") is entered into as of the Effective Date set forth above (the "Effective Date") by and between Highwater Partners, LLC, a limited liability company, acting in its capacity as exclusive M&A broker and agent for the Seller of the above-referenced opportunity ("Highwater Partners" or "Broker"), and the prospective buyer identified on the cover page of this Agreement ("Recipient").

WHEREAS, Highwater Partners has been engaged by the Seller as exclusive sell-side advisor and broker in connection with a potential sale, transfer, or other disposition of the business opportunity described on the cover page (the "Business"); and

WHEREAS, in connection with Recipient's evaluation of a potential acquisition of the Business (the "Permitted Purpose"), Highwater Partners and/or the Seller may disclose to Recipient certain non-public, proprietary, and confidential information relating to the Business; and

WHEREAS, Recipient desires to receive such information and agrees to be bound by the terms and conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.     Confidential Information

(a)  "Confidential Information" means any and all non-public, proprietary, or confidential information disclosed by Highwater Partners, the Seller, or any of their respective affiliates, advisors, or representatives (collectively, "Disclosing Parties") to Recipient or any of its directors, officers, employees, members, partners, advisors, financing sources, agents, or representatives (collectively, "Recipient Representatives"), whether disclosed in writing, orally, electronically, visually, or by any other means, and whether or not marked as "confidential" or "proprietary." Confidential Information includes, without limitation:

  • The identity of the Business and the Seller;

  • All Confidential Information Memoranda (CIMs), teasers, management presentations, and related marketing materials prepared in connection with the sale process;

  • Financial statements, tax returns, operating data, royalty schedules, and financial projections;

  • Franchise agreements, franchise disclosure documents (FDDs), area development agreements, and related franchise system materials;

  • Intellectual property, trademarks, trade secrets, recipes, proprietary operating systems, technology platforms, domain portfolios, and brand assets;

  • Supplier, vendor, and customer relationships, agreements, and pricing;

  • Employee, compensation, and organizational information;

  • Real estate leases, subleases, and related agreements;

  • CPG licensing agreements, royalty streams, and pipeline information;

  • Any analyses, compilations, notes, summaries, or other materials prepared by Recipient or Recipient Representatives that are based on, incorporate, or reflect any Confidential Information; and

  • The existence of this Agreement, the sale process, and the fact that Recipient has received or is evaluating Confidential Information.

 

(b)  Exclusions.  Confidential Information shall not include information that Recipient can demonstrate: (i) is or becomes publicly available through no act or omission of Recipient or any Recipient Representative; (ii) was rightfully in Recipient's possession prior to disclosure under this Agreement, without restriction on disclosure; (iii) is independently developed by Recipient without use of or reference to Confidential Information; or (iv) is rightfully received by Recipient from a third party without restriction on disclosure and without breach of any obligation of confidentiality.

2.     Obligations of Recipient

(a)  Confidentiality.  Recipient shall: (i) hold all Confidential Information in strict confidence and protect it with at least the same degree of care it uses to protect its own confidential information of similar sensitivity, but in no event less than reasonable care; (ii) use Confidential Information solely for the Permitted Purpose; and (iii) not disclose, distribute, copy, or otherwise make available any Confidential Information to any person or entity other than Recipient Representatives who have a legitimate need to know such information in connection with the Permitted Purpose and who are bound by written confidentiality obligations at least as protective as those set forth herein.

(b)  Responsibility for Representatives.  Recipient shall be responsible for any breach of this Agreement by any of its Recipient Representatives to the same extent as if such breach were committed by Recipient directly.

(c)  No Contact; No Circumvention.  Recipient agrees that it will not, without the prior written consent of Highwater Partners: (i) contact or communicate with the Seller, its employees, management, franchisees, customers, suppliers, or other business counterparties regarding the Business or the sale process; (ii) circumvent Highwater Partners' role as exclusive broker; or (iii) attempt to conduct any portion of a potential transaction with the Seller other than through Highwater Partners. All inquiries, communications, and negotiations relating to the Business shall be directed exclusively through Highwater Partners.

(d)  Non-Solicitation.  During the Term (as defined in Section 6) and for a period of twelve (12) months following the expiration or termination of this Agreement, Recipient shall not directly or indirectly solicit for employment or engagement any officer, employee, or key management member of the Seller or the Business whose identity became known to Recipient in connection with the Permitted Purpose, without the prior written consent of Highwater Partners and the Seller.

(e)  Prospective Buyers Agree NOT to Contact Seller Directly.  Recipient acknowledges and agrees that any direct contact with the Seller or its management, employees, or restaurant-level personnel — whether relating to the sale process, the Business, or otherwise — without the prior written consent of Highwater Partners shall constitute a material breach of this Agreement.

3.     Permitted Disclosures; Legal Process

Notwithstanding Section 2, Recipient may disclose Confidential Information to the extent required by applicable law, regulation, court order, or lawful governmental or regulatory authority, provided that Recipient shall, to the extent legally permissible: (a) provide Highwater Partners with prompt prior written notice of such requirement; (b) cooperate with Highwater Partners and the Seller in seeking a protective order or other appropriate relief; and (c) disclose only that portion of the Confidential Information that is legally required to be disclosed, and shall use commercially reasonable efforts to obtain confidential treatment for any such disclosed information.

4.     Return or Destruction of Confidential Information

Upon the written request of Highwater Partners or the Seller, or upon the expiration or termination of this Agreement, Recipient shall promptly: (a) return to Highwater Partners or the Seller all tangible materials (including all copies, extracts, and summaries in any medium) containing or reflecting Confidential Information; or (b) certify in writing to Highwater Partners that all such materials have been permanently destroyed. Notwithstanding the foregoing, Recipient may retain copies of Confidential Information solely to the extent required by applicable law, regulation, or bona fide internal record retention policies, provided that any such retained materials remain subject to the confidentiality obligations of this Agreement.

5.     No License; No Representation; No Obligation to Transact

(a)  No License.  Nothing in this Agreement shall be construed to grant Recipient any right, title, interest, license, or other proprietary right in or to any Confidential Information or any intellectual property of the Seller or the Business.

(b)  No Representation.  The Disclosing Parties make no representation or warranty, express or implied, as to the accuracy, completeness, or fitness for any particular purpose of any Confidential Information. Recipient acknowledges that it must conduct its own independent due diligence with respect to the Business.

(c)  No Obligation.  Nothing in this Agreement shall obligate either party to proceed with any transaction, enter into any additional agreement, or commit capital to any opportunity. Either party may terminate discussions at any time for any reason.

6.     Term

This Agreement shall remain in effect for a period of three (3) years from the Effective Date (the "Term"), unless earlier terminated by mutual written agreement of the parties. Sections 2, 3, 4, 7, and 9 shall survive any expiration or termination of this Agreement.

7.     Remedies

Recipient acknowledges that any actual or threatened breach of this Agreement would cause irreparable harm to the Disclosing Parties for which monetary damages would be an inadequate remedy. Accordingly, the Disclosing Parties shall be entitled to seek specific performance, injunctive relief, and other equitable remedies to enforce the provisions of this Agreement, without the requirement to post any bond or prove actual damages, and without prejudice to any other rights or remedies available at law or in equity. Recipient shall be responsible for all reasonable costs and attorneys' fees incurred by the Disclosing Parties in enforcing this Agreement against Recipient or any Recipient Representative.

8.     Securities Laws

Recipient acknowledges that: (a) it is aware that applicable United States securities laws generally prohibit any person who has material non-public information about a company from purchasing or selling securities of such company, or from communicating such information to others under circumstances where it is reasonably foreseeable that such person is likely to purchase or sell securities; and (b) some Confidential Information may constitute material non-public information. Recipient agrees that it will not, and will cause its Recipient Representatives not to, use any Confidential Information in violation of applicable securities laws.

9.     Miscellaneous

(a)  Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in Clark County, Nevada for any action to enforce this Agreement or obtain equitable relief.

(b)  Entire Agreement.  This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior representations, understandings, and agreements, whether written or oral, relating to the confidentiality of the Confidential Information.

(c)  Amendments.  This Agreement may be modified only by a written instrument signed by authorized representatives of both parties.

(d)  Severability.  If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect.

(e)  Counterparts; Electronic Signatures.  This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one instrument. Electronic and digital signatures shall be deemed valid and binding to the same extent as original wet-ink signatures. By completing the online request form, checking the box indicating acceptance of this Agreement, and submitting the form with the individual's typed name, the recipient acknowledges that they have read, understand, and agree to be bound by the terms of this Agreement. Such electronic acceptance shall constitute a valid and enforceable electronic signature.

(f)  Assignment.  Recipient may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Highwater Partners. Any attempted assignment in violation of this Section shall be null and void.

(g)  Relationship of Parties.  Recipient acknowledges that Highwater Partners is acting as exclusive broker and agent for the Seller and owes duties primarily to the Seller in connection with the sale process. Nothing in this Agreement creates a fiduciary, advisory, or agency relationship between Highwater Partners and Recipient.

(h)  Notices.  All notices under this Agreement shall be in writing and delivered by email with confirmation, overnight courier, or certified mail. Notices to Highwater Partners shall be sent to: Simon Shaner (simon@highwater.partners) and Mercedes Shaffer (mercedes@highwater.partners).

​

Confidentiality Agreement

Date
Month
Day
Year
bottom of page