Client (“you” or “your”) engages FP Transitions (“we” or “us”) to –
1. Scope of Engagement. For listing opportunities ("the Business") that you inquire on through this website, if the principal(s) of the Business ("the Sellers") choose your firm as a potential acquisition partner, we will:
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- Introduction to the Business: introduce you to the Sellers and facilitate the reciprocal assessment between you and the Sellers of the suitability for you to acquire the Business.
- Identification of Transferring Assets: The principal component of an acquisition will be either intangible personal property (client relationships and goodwill) or the equity ownership of the Business as a going concern. Other tangible and intangible assets, including furniture, fixtures, and equipment; accounts, work in progress and future trails; employee relationships; leaseholds; and trademarks, tradenames, and other intellectual property, may be a part of the sale, as may customary post-closing covenants, support for the transition of clients, and future services from the Business’s owners and employees.
- Transaction-related Consulting. If you are selected by the sellers, we will facilitate the negotiation of the terms of an acquisition between you and the Sellers. We will advise you on the pre-sale due diligence, although the responsibility for investigating and understanding the elements and circumstances of the acquisition remains yours. In addition, we will advise you on:
- the terms, conditions, and documentation of the acquisition;
- tax issues and strategies;
- financing and payment terms;
- transfer of the client relationship and associated accounts; and
- the covenants that will survive closing.
- Documentation. If requested by you and the Sellers, we will draft the principal agreements and schedules. If a third-party lender is involved, we will work with the lender to support the underwriting, documentation, and closing of the loan in conjunction with the closing of the acquisition.
We will guide you and work with you through this process as you make your decisions at each step of the process, and we will facilitate the closing of the sale. We will perform these services as a consultant and facilitator, not as a fiduciary.
2. Term. This Agreement may be terminated upon 14-days’ notice; however, it shall continue to apply to any opportunity to acquire then pending by you.
3. Cooperation. You agree to communicate with representatives of the Business solely through us unless we direct otherwise. You will cooperate with our efforts on your behalf. You acknowledge and accept that the Sellers and the Business are also clients of ours. You will timely include us in the distribution of all draft and signed documents pertaining to the potential acquisition of the Business.
4. Fee. If during the Term of this Agreement you acquire the Business you will pay us at closing a fee equal to the fee the Sellers have agreed to pay us, which shall be the greater of (a) $12,500, or (b) 3.5% of the value of the total consideration, which, for purposes of this Agreement means all value given for all purposes in the transactions between you and the Sellers, whether paid at closing or anticipated to be paid thereafter, not including prorated income.
5. Confidentiality. Without the consent of the other, neither of us will disclose to any third party non-public information furnished by either of us or by the Sellers. The foregoing notwithstanding, you authorize us to share such confidential or proprietary information about you as we feel, in our reasonable discretion, is useful or necessary for the Sellers to evaluate your suitability as a potential buyer for the Business. Both of us will use reasonable safeguards to protect the information received that either party identifies as confidential or proprietary. Neither of us will have liability for disclosure of information available to the public. Confidential and proprietary information may be disclosed as required by law, regulation, legal process, SEC or other regulatory agency request, or other binding authority.
6. Work Product. You agree that the work performed by us and the methods, documents, agreements, analysis, spreadsheets, schedules, and all other work product we provide to you are proprietary to us, shall remain confidential, and shall not be distributed, republished, or shared in any way without our prior written consent. You have a limited license to use our proprietary information and processes, and copyrighted materials, in this transaction only.
7. Representations. You represent and warrant that you have all licenses and authorities necessary to conduct your business as it is now being conducted; that the information you provide to us will accurately present your business and its operations and finances; that this is your valid Agreement; binding you and your company; and that you will cooperate in good faith with our efforts to achieve the objectives of this Agreement.
8. Due Diligence. It is your responsibility to investigate the opportunity, risk, cost, and circumstances of any proposed transaction, commonly called “due diligence.” FP Transitions has no duty or obligation to conduct any due diligence investigation or to vet any party or other persons related to a transaction that may occur between you and the Sellers.
9. Nonexclusive. You acknowledge and accept that we are working with other potential acquisition partners for the Business and that you are not the only firm the Sellers are in discussions with about the acquisition of the Business.
10. Independent Legal and Tax Advice. You understand and agree that we are neither a law nor accounting firm, and that we do not provide accounting, tax, or legal advice in that capacity. You agree that you will not rely on us for accounting, tax, or legal advice. We recommend that you have all documents and information reviewed by your lawyer and accountant.
11. Limitation of Liability. Our liability for these services outlined in this Agreement and any data loss is strictly limited to the amount of the fees actually paid by you under this Agreement. In no event shall we be liable for any special, indirect, incidental, punitive, or consequential damages, including, without limitation, loss of revenue or anticipated profits, relating to or arising from this Agreement and/or a resulting transaction.
12. General Provisions. As used in this Agreement, “acquisition” or “acquire” means any change in the ownership or capitalization of the Business, or conveyance of the assets of the Business, in whole or in part, including but not limited to a sale, a merger, a loan, or other transfer or change in the ownership of the Business or its assets. This Agreement may only be modified in a signed writing. The failure to insist upon the timely performance of any provision or to exercise any right granted hereunder will not be construed as a waiver. The duties and obligations of this Agreement survive its termination. This Agreement is made and shall be performed in Oregon. Any controversy or claim between us arising out of or relating to this Agreement shall be determined in accordance with Oregon law by binding arbitration in Clackamas County. This Agreement contains the entire understanding between you and us with respect to the subject matter hereof.
