- Hoffman deals in various strategic financial products and is engaged in the business of providing tax analysis, tax planning, implementation and related services for the strategies that Hoffman has recommended;
- Receiving Party is a potential client of Hoffman ,and recognizes that sharing of the Proprietary Information is unacceptable unless the CPA or attorney of the Receiving Party has signed an Agreement identical in details to this one and Hoffman has received such a notarized Agreement. Receiiving Party agrees to sign additional documents if required by Hoffman Associates, LLC. Confidentiality is contingent on the other Party’s agreement to keep such information confidential and to use such information only in accordance with the terms and conditions of this Agreement;
- Both Hoffman and Receiving Party desire to explore the possibility of Hoffman providing certain financial products to the Receiving Party (“Proposed Transaction”) involving the Hoffman WPS (defined in section 2 below).
- Hoffman regards its Proprietary Information (defined within) as strictly private, special, unique, sensitive and confidential, essential to its continued successful operation and constituting trade secrets; Hoffman desires and is entitled to protect its Proprietary Information.
- Hoffman may be willing to disclose certain of its Proprietary Information to Receiving Party only if Receiving Party agrees to: (1) not disclose any of such Proprietary Information to any person or entity in violation of this Agreement; (2) not use any of the Proprietary Information in violation of this Agreement; and (3) not solicit or contact any of Hoffman’s employees, customers or clients in any manner related to the use of any of the Proprietary Information.
THEREFORE, in consideration of the promises and the mutual agreements contained in this Agreement, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
- Incorporation of Preliminary Statements. All of the Preliminary Statements are incorporated in this Agreement as if set forth verbatim.
- Proprietary Information. “Proprietary Information” shall be defined as:
- The Hoffman Associates, LLC Wealth Preservation Strategy (herein after “Hoffman WPS”) involving, among other matters, elimination or reduction of capital gains and / or income tax liability and/or depreciation recapture and estate and succession planning.
- All information and documentation, whether or not stamped, marked, labeled or orally
described as being “Confidential”, “Proprietary”, “Secret” or other synonym, disclosed by Hoffman to Receiving Party in oral, written, visual, printed, handwritten, typewritten, graphic, recorded, photographic, machine-readable, electronically stored / maintained or any other format from which data, information or documentation may be retrieved or retained, including without limitation, website data, financial products, concepts, designs, strategies, tax analysis, tax computation, spreadsheets, forms, memoranda, research, published articles, charts, procedures, internal analyses / computations / flowcharts, business plans, marketing plans, financial statements, income statements, income tax returns, trade secrets, customer information, existing or potential transactions with third-parties, copyrights / trademarks / service marks / software and all other intellectual property rights, reports, specifications, work papers, work materials, products, research and development, operations, marketing, sales, prices, trade know-how, including all summaries, abstracts, outlines, recapitulations, compilations, digests and recaps of Proprietary Information, in each case relating or in connection with a Proposed Transaction.
Hoffman represents to Receiving Party that the Proprietary Information is complete, correct and accurate.
Notwithstanding the foregoing, “Proprietary Information” shall not include information that: (A) is or becomes generally known to the public by any means other than a breach of this Agreement by Receiving Party; (B) was previously known to Receiving Party prior to the date of this Agreement; (C) is independently developed by or for the Receiving Party by individuals who did not have access to Hoffman’s Proprietary Information and independent of any disclosures made by Hoffman; or (D) is subject to disclosure under compulsive process subject, however, to compliance with following.
Disclosure required by compulsive process (including without limitation court order or subpoena) served on Receiving Party may be complied with but only after: (i) providing Hoffman with an exact copy of the compulsive process within three (3) business days after service on Receiving Party; and (ii) giving Hoffman not less than fifteen (15) days advance written notice, if permitted by such compulsive process, prior to the compliance date contained in the compulsive process so that Hoffman may have an adequate opportunity to take whatever legal action it deems appropriate including without limitation quashing such compulsive process and / or seeking a protective order.
- Restriction on Use of Proprietary Information. Receiving Party agrees: (A) to use the Proprietary Information only in connection with its evaluation, analysis and / or consummation of a Proposed Transaction through Hoffman only; (B) to never use the Proprietary Information in any other manner or for any other purpose; and (C) if Receiving Party does not enter into a separate written agreement in pursuit of a Proposed Transaction within thirty (30) days after this Agreement is executed by Receiving Party, this Agreement shall terminate.
Specifically, but without limitation, Receiving Party shall not at any time use any of the Proprietary Information in the development of any concept, design, strategy, technique or product competitive to the Hoffman WPS and / or the Proprietary Information. Receiving Party agrees that any use of the Proprietary Information by companies, businesses, trusts that the Receiving Party controls or has a significant interest in must also pay the fee to Hoffman.
- Fee to Hoffman Associates, Receiving Party shall not ever attempt to consummate or in any manner consummate any transaction (“Consummated Transaction”) involving, relating to, referring to, concerning, relying upon, based upon, similar to and / or using, in full or in part, the Hoffman WPS and / or any of the Proprietary Information except through Hoffman. Receiving Party shall deal exclusively with Hoffman and not, in any manner, attempt to circumvent Hoffman in any Consummated Transaction or Proposed Transaction.
Immediately upon and simultaneously with consummation of each and every Consummated Transaction, whether: (A) by and through the efforts and actions of Hoffman as contemplated by this Agreement; (B) by Receiving Party alone or with any third-party person or entity; or (C) through the efforts and actions of a third-party person or entity in violation of this Agreement, Receiving Party shall, in either case, owe Hoffman Associates , and agrees to pay Hoffman Associates immediately upon presentation of an invoice, a combined total of five percent ( 5% ) of the aggregate gross fair market value of assets involved in any Consummated Transaction. This shall be paid to Hoffman Associates
- Term and Survival of Obligations. This Agreement may be terminated upon one (1) business day advance written notice by one party to the other at any time, provided however, that all covenants, liabilities and obligations of Receiving Party (including without limitation those provided in the sections titled “Non-Disclosure of Proprietary Information”, “Restriction on Use of Proprietary Information”, “Fee to Hoffman”, “Non-Solicitation”, “Return of Proprietary Information”, “Equitable Remedies”, “Choice of Law / Consent to Jurisdiction”, “Jury Trial Waiver”, “Attorney Fees” and “Binding Effect”) shall survive such termination indefinitely but in no event for a period less than five ( 5 ) years after termination.
- Non-Solicitation. In addition to all other restrictions imposed on Receiving Party by this Agreement, for a continuous period of five ( 5 ) years (“Period”) after the termination of this Agreement (“Period”), Receiving Party shall not directly or indirectly for itself or for or on behalf of any other person or entity: (A) solicit for employment any person employed by Hoffman during the Period or the five ( 5 ) years immediately after to the Period; or (B) during the Period solicit any prior or current customers or clients of Hoffman.
- Return of Proprietary Information. Upon any of: (A) written request of Hoffman; or (B) the termination of this Agreement by Receiving Party or Hoffman, Receiving Party shall: (i) deliver immediately from its custody, control or possession to Hoffman all originals and copies, in whatever format, of the Proprietary Information or, alternatively, destroy all originals and copies, in whatever format, of such Proprietary Information and immediately after such destruction certify in writing to Hoffman that all such Proprietary Information has been destroyed; and (ii) immediately and irretrievably delete all electronically stored Proprietary Information from all computers and other electronic devices within its possession, custody or control and to which it otherwise has access. Receiving Party shall not retain any Proprietary Information in any format in violation of the foregoing.
- Ownership. Receiving Party agrees that all Proprietary Information is and shall be the sole and exclusive property of Hoffman, and Hoffman shall be the sole owner thereof.
- No License. Nothing in this Agreement shall be deemed to grant to Receiving Party any right, title or interest (legal, equitable, moral or otherwise) in or to the Proprietary Information or a license, directly or by implication or otherwise, to disclose or use the Proprietary Information except as specifically provided in this Agreement.
- Equitable Remedies. The covenants and restrictions contained in this Agreement are necessary, fundamental and mandatory to protect the Proprietary Information of Hoffman. Any breach of this Agreement will irreparably damage Hoffman which cannot be compensated solely by a monetary award. Accordingly, there is no adequate remedy for Hoffman at law for any breach by Receiving Party of this Agreement. Therefore, in addition to any other legal, equitable or other rights and remedies it may have, Hoffman shall be entitled to seek and obtain, without any requirement to post bond or other security, immediate, preliminary, temporary and permanent injunctive relief restraining any actual or threatened breach of this Agreement by Receiving Party.
- Choice of Law / Consent to Jurisdiction. This Agreement and all rights, duties and obligations of the parties shall be construed and determined in accordance with and be governed by the internal substantive laws of the State of Missouri without regard to its conflicts of laws provisions. Both parties irrevocably submit to the exclusive jurisdiction and venue of either the Circuit Court of Boone County, Missouri or the United States District Court for the Western District of Missouri, Central Division at Jefferson City (together “Court”), at the election of Hoffman, in any action, lawsuit, proceeding, counterclaim, cross claim or any other litigation (“Litigation”) arising from or attributable to this Agreement.
- Jury Trial Waiver. Both parties agree to have any Litigation heard and tried in the Court by a judge without a jury, and to the fullest extent permitted by law, and as separately bargained-for consideration, both parties waive any right to trial by jury in the Court in any Litigation.
- Attorney Fees. In the event that a Court finds that the Receiving Party has violated the terms of this Agreement, Receiving Party shall pay to Hoffman in addition to all damages and any other relief (including at law, in equity or any combination thereof) which may be awarded to Hoffman by a court, reasonable attorneys’ fees, expert witness fees, cost of investigation and all other litigation expenses incurred by Hoffman in such Litigation. If Litigation is brought by Hoffman against the Receiving Party, and a court of competent jurisdiction finds that the Receiving Party has not violated the terms of this Agreement, then Hoffman will be liable for and pay to the Receiving Party on demand reasonable attorneys’ fees, expert witness fees, cost of investigation and all other litigation expenses incurred by the Receiving Party in such Litigation.
- Non-Waiver of Remedies. No failure to exercise and no delay by either party in exercising any right, remedy, power or privilege available to such party under this Agreement (“Remedy” or “Remedies”) shall operate as a waiver thereof; nor shall any single or partial exercise of any Remedy preclude any other or further exercise of the same or any other Remedy. All Remedies are cumulative and not exclusive of any other rights, remedies, powers and privileges provided by law.
- Notices. Any and all demands, notices and communications required or permitted to be delivered with respect to this Agreement shall be deemed properly delivered if: (A) personally delivered; (B) delivered by a nationally operated overnight delivery service (including without limitation UPS and Federal Express) with instructions and payment for delivery on the next business day; (C) deposited in the U.S. Mail properly addressed with certified mail postage prepaid, return receipt requested; (D) transmitted via facsimile; or (E) transmitted via electronic mail, to the other party at the following addresses:
Attention: Mr. John Eickhoff
7121 East Mount Hope Road
Columbia, Missouri 65202
or at such other address as shall be designated by either party in a written notice to the other party. Notices shall be deemed effective on the earliest of the following: (F) on the date of actual personal delivery; (G) on the date of actual delivery by overnight delivery service as reflected on the records of such delivery service; (H) on the fifth (5th) day following the date of posting via United States certified mail; or (I) on the date of successful facsimile or electronic mail transmission as reflected on the sender’s facsimile machine or computer and a copy of the facsimile or electronic mail transmission is sent that day by overnight delivery service or United States certified mail to the party to be notified in the manner set forth above.
- Severability. In the event any one (1) or more of the provisions contained in this Agreement shall be declared invalid, illegal or unenforceable by any court of competent jurisdiction, the validity, legality or unenforceability of the remaining provisions of this Agreement shall not be impaired thereby, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision were not contained in this Agreement, unless otherwise expressly provided in this Agreement.
Proper Authority. Each party respectively represents and warrants that: (A) such party has full power and authority to execute, deliver and perform this Agreement; (B) the person executing this Agreement on behalf of such party has full power and authority to execute, deliver and perform this Agreement; (C) the execution, delivery and performance of this Agreement does not violate any law, covenant or other restriction binding upon such party; and (D) this Agreement is lawfully binding upon and enforceable against such party.
- Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns. Nothing in this contract, expressed or implied, is intended to confer any person, other than the Parties and their successors, any rights or remedies under or by reason of this contract.
- Assignment by Hoffman Permitted. Hoffman may assign this Agreement in full or in part in its sole discretion without the prior written consent of Receiving Party.
22. Assignment by Receiving Party Prohibited. Receiving Party may not assign thisAgreement in full or in part without the prior written consent of Hoffman.
- Counterparts. This Agreement may be executed in multiple original counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. Execution may be on separate signature pages.
- Execution By Electronic Signature. Pursuant to the Missouri Uniform Electronic Transactions Act (Section 432.200, RSMo.) and the Electronic Signature in Global and National Commerce Act (15 USC 7001), execution of this Agreement by an electronic signature transmitted via facsimile machine or electronic mail shall constitute an original signature. Execution in such manner shall have the same binding effect as an original signature on this Agreement.
- Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations and understandings.
- Captions. The captions are for ease of reference only and shall not alter the meaning or interpretation of this Agreement.
- Modification. This Agreement may be modified only by written agreement signed by both parties.
- Waiver.The waiver by one Party of a breach of any provision of this Agreement by the other Party will not operate or be construed as a waiver of any subsequent breach.
- Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of each party and its lawful successors and permitted assigns. Each party shall mean and include not only each party but also all: (1) natural persons, corporations, limited partnerships, general partnerships, limited liability partnerships, limited liability companies, joint ventures, trusts, unincorporated organizations and any other entity of any kind or description whether organized under the laws of the United States or any other country or jurisdiction (“Entity” or “Entities”) directly or indirectly, affiliated with, controlled by or under common control with a party to this Agreement together with all employees, officers, directors, shareholders, limited partners, general partners, members, managing members, managers and all other equity holders of a party and all Entities and all of their respective spouses and other immediate family members1; (2) any other entity (“Other Entity”) created, formed or otherwise resulting from any merger, consolidation, combination, split-off, spin-off, corporate reorganization, recapitalization or other change of control relating to or involving a party to this Agreement; and (3) any Entity resulting from any one (1) or more of the reorganization of Receiving Party, the acquisition, sale, dividend, split or other disposition of the capital stock, securities or other equity interests or substantially all of the assets of Receiving Party or any Other Entity.
- Further Assurances. Each party agrees to take such further actions and to make,execute, and deliver such further written instruments, as may be reasonably required from time to time to carry out the terms, provisions, intentions, and purposes of this Agreement.
“Control”, “controlling”, “controlled by” and ”under common control with” shall mean, as to any Entity, the direct or beneficial ownership by any person or entity of any equity in such Entity or the possession, direct or indirect, of any person or entity to vote (5 %) or more of the voting securities / rights of such Entity or authority to direct or cause the direction of the management, operation and / or policies of an Entity, whether through the vote provided above, contract or otherwise.
“Change of control” as to an Entity shall mean and include the sale, exchange or other transfer, to any other person or entity, with or without consideration, of any shares of capital stock, partnership interests, membership interests, beneficial interest in a trust or any other securities or other equity interests of such Entity including any warrants, options or other rights enabling the holder thereof to purchase or otherwise acquire any such equity interest.