NON-DISCLOSURE, NON-CIRCUMVENTION AND NON-COMPETITION
This Non-Disclosure, Non-Circumvention and Non-Competition Agreement (hereinafter referred to as the “Agreement”) is made and entered into by and between Miz Lola’s Holdings, LLC Et al. (“Proprietor”) and the receiving party identified by its electronic signature below (“Confidant”) with respect to a possible sale for the portfolio of Ten (10) taverns located in the Las Vegas valley, further identified as Listing #011 (the “Potential Transaction”).
WHEREAS, Confidant does hereby represent and warrant that it has no interest in using any information it might hereby obtain in connection with the Potential Transaction to circumvent or compete against Proprietor;
WHEREAS, Confidant and Proprietor do hereby acknowledge, admit and confess that the non-competition aspects of this Agreement are ancillary to the otherwise enforceable nondisclosure and non-circumvention aspects of this Agreement;
WHEREAS, Confidant has and does hereby acknowledge, admit and confess that this agreement contains reasonable limits as to time, geographical area and scope of activity to be restrained;
WHEREAS, Confidant has and does hereby acknowledge, admit and confess that any restraints imposed upon Confidant are not greater than is necessary to protect the goodwill and/or other interests of Proprietor;
WHEREAS, Proprietor desires to provide Confidant with access to the subject information, but also desires that the information and records remain confidential and that Confidant not use any such information to circumvent or compete against Proprietor with respect to the Potential Transaction, or disseminate any such information to any third party or entity to enable them to circumvent or compete against Proprietor with respect to the Potential Transaction;
WHEREAS, Confidant and Proprietor are entering into this Nondisclosure, Non-Circumvention and Non-Competition Agreement to evidence their understanding, agreements and covenants with respect to the examination of information which is to be disclosed by Proprietor with respect to the Potential Transaction;
WHEREAS, Confidant and Proprietor do hereby agree that the recitations contained herein are contractual in nature and not mere recitations of fact:
NOW, THEREFORE, for and in consideration of the premises, recitations, agreements and covenants contained herein, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, admitted and confessed, Proprietor and Confidant do hereby agree as follows:
1. Confidant agrees not to disclose, reveal or make use of any information during discussion or observation regarding the Potential Transaction and certain individuals and other contacts involved in such Potential Transaction (such information, “Confidential Information/Data”) provided that, notwithstanding the foregoing, Confidant may disclose the Confidential Information (a) to directors, officers, employees, members, partners, consultants, attorneys, auditors, agents, prospective lenders, prospective operators, advisors and other representatives (“Representatives”) for the purpose of evaluating the Proposed Transaction (and for other related legal, audit or compliance purposes), provided that Confidant informs them of the confidential nature of the Confidential Information and directs them to treat the Confidential Information in accordance with the terms of this letter. Confidential Information shall not include information that (i) is already in Confidant’s possession and is not known to Confidant to be subject to another confidentiality agreement with, or obligation of secrecy to, the Proprietor, (ii) becomes generally available to the public other than as a result of disclosure by Confident or its Representatives in violation of the terms of this letter, (iii) becomes available to Confidant on a non-confidential basis from a source other than the Proprietor, provided that such source is not known by you to be bound by a confidentiality agreement with, or other obligation of secrecy to, Proprietor or (iv) is independently developed by Confidant without use of, or reference to, Confidential Information.
2. Confidant acknowledges and agrees that the unauthorized disclosure of the Confidential Information/Data, any attempt to circumvent another party will cause irreparable harm to the disclosing party. Because of the unique nature of the Confidential Data, in addition to all other remedies available, the disclosing party shall be entitled to seek injunctive and other extraordinary relief in a court of competent jurisdiction to enforce the receiving party’s obligations hereunder.
3. Confidant hereby acknowledges, admits and confesses that all the covenants and agreements contained herein are necessary for the protection of their business and potential purchasers, and that any violation of the terms hereof may result in losses or damages which may not be readily susceptible of determination. Proprietor shall retain all legal or equitable right or remedy, by judicial proceedings or otherwise.
4. Confidant and Proprietor affirm that the association and relationship between Proprietor and Confidant in connection with the Potential Transaction is one of trust and confidence and that such association and relationship would not have been offered or otherwise continued but for the fact that such trust and confidence had been reposed by Proprietor in Confidant. In view of said association and relationship, Confidant hereby promises and agrees that during said association and relationship and continuing for a period of one (1) year from the date hereof, Confidant shall not pursue the consummation of the Proposed Transaction without the involvement of Proprietor.
5. Unless otherwise agreed by Proprietor in writing, Confidant agrees that upon completion of its review Confidential Information regarding the Potential Transaction, Confidant will immediately surrender to Proprietor or destroy all originals and all copies made of any Confidential Information, except as required by law or internal compliance policy. Confidant further expressly agrees, understands and acknowledges that all such materials are at all times the sole and exclusive property of Proprietor.
6. The failure of Proprietor to insist upon strict compliance by Confidant with one or more covenants and restrictions contained herein, whether on one or more occasions, shall not be construed as a waiver, nor shall such a course of action deprive Proprietor of the right thereafter to require strict compliance herewith. If the parties hereto waive any of the conditions, terms or provisions contained herein, or any of the duties or obligations of the other party hereunder, such waiver shall be effective only if in writing and signed by the party waiving any such item.
7. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, including, but not limited to, an action for injunctive relief and/or a suit for damages, Proprietor shall be entitled to reasonable attorneys’ fees and costs in addition to any other relief to which it may be entitled.
8. The rights and remedies set forth in this Agreement are cumulative of all other rights and remedies existing at law or in equity, and shall not be deemed to deprive Proprietor of any such other legal or equitable right or remedy, by judicial proceedings or otherwise, necessary or appropriate to enforce the terms, provisions, conditions and covenants contained in this agreement, or the employment of any remedy hereunder, or otherwise, and shall not prevent the concurrent or subsequent employment of an other appropriate remedy or remedies.
9. If any agreement or restrictive covenant contained herein should be held by any court or other legal authority to be void or unenforceable in any respect, then this Agreement shall thereby be amended (without the need for any action by the parties) so as to bring it into conformity with applicable law. In other words, the matter, which is adjudicated to be void or unenforceable shall be modified or severed out of this Agreement, and the other terms of this Agreement shall continue to be in full force and effect and govern the rights and obligations of the parties hereto.
10. No waiver, modification or amendment of the terms of this Agreement shall be of any force or effect unless made by an instrument in writing and executed by all parties hereto.
11. This agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to the State’s conflict of laws principles. Any dispute arising out of or relating to this agreement shall be commenced in a state or federal court in the State of Nevada and each party irrevocably submits to the jurisdiction and venue of such courts. This Agreement and all of the obligations hereunder shall terminate on the earlier of (i) one year from the date of execution or (ii) the date a definitive agreement with respect to the Proposed Transaction is entered into between the parties hereto.