Equity Investment Agreement
THIS EQUITY INVESTMENT AGREEMENT (the “Agreement”) is dated as of DATE (the “Effective Date”) by and between RY Vitamin Company, a Delaware Limited Liability Company, having an address at _________________________________________________________________ (“Company”) and ________________________________________________________, having an address at ___________________________________________(“Investor”).
- The Company has invited the Investor to make an investment into the Company (the “Investment”) on the terms and conditions set out in this Agreement; and
- The Investor is willing to make the Investment on the terms and conditions set out in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth below, the parties covenant and agree as follows:
Article 1. Consideration
In consideration for Investor’s willingness to enter into this Agreement and the services to be rendered to Company hereunder:
- The Investor shall be required to make available to the Company, funds in the total amount of $_________________ within forty-five days of the execution and delivery of this agreement.
- Subject to (i) above, within forty-five (45) days of the funds becoming available, the Company agrees to issue to Investor shares of Company non-voting preference stock (“Company Shares”), such number of Company Shares being equivalent to $_________________ of Company’s currently issued and outstanding non-voting preference stock on a $3 per share basis.
- In the event that Investor chooses not to perform (i) above, such Investor shall have the option to provide service to the Company for a period to be agreed upon by the Parties in writing. In exchange for such service, the Company agrees to issue to Investor Company Shares equivalent to $_________________ based on a $3 per share basis. Company shares issued under this clause shall vest at a rate of ________% per year.
- Subject to the Company’s approval, an Investor shall have the option to perform (i) or (ii) above, or both.
Within the time periods provided, Company shall deliver, or cause to be delivered, to Investor a certificate or certificates, registered in Investor’s name, representing all of the Company Shares then required to be issued to Investor.
Article 2. Dividends
The Company shall, from the date of execution of this Agreement, issue annual dividends to the Investor, which dividends shall be equivalent earnings per share for each share held by the Investor.
Article 3. Confidentiality
- The Investor acknowledges that the Company, its subsidiaries and affiliated companies are the owners of valuable trade secrets and other confidential information. The Investor receiving information hereunder concerning the business, products, equipment, systems, techniques, and practices that is identified in writing as confidential (“Confidential Information”) of the Company, for a period of five years commencing upon first receipt of the particular Confidential Information (the “Confidentiality Period”) shall retain the same in confidence and shall only use such Confidential Information for purposes of this Agreement, or as otherwise agreed to in writing by both parties, and shall not disclose any such Confidential Information to any entity; provided, that “Confidential Information” shall not include any information that: (a) was already known to the Investor prior to the date of this Agreement as documented in the Investors records made prior to such dates; (b) was publicly available in its entirety as of the date of the disclosure or thereafter becomes publicly available other than through breach of this Agreement; (c) is made known to the Investor by a third party who had not obtained the information directly or indirectly from the Company and does not obligate the Investor to hold the same in confidence; or (d) is mutually agreed in writing by the parties to be non-confidential.
- During the relevant Confidentiality Period, the Investor shall use its best efforts to safeguard the Confidential Information of the Company, using at least as great a degree of care as it uses to safeguard its own most Confidential Information.
- Both parties acknowledge that the disclosure or use by the Investor of any aspect of the Confidential Information of the Company (other than as expressly permitted by this Agreement) shall immediately give rise to continuing irreparable injury to the Company inadequately compensable in damages at law and without prejudice to any other remedy available to the Company, and shall entitle the Disclosing Party to seek injunctive relief.
- In the event that this Agreement is terminated, each Party Recipient shall cease to use the Confidential Information of the other party, and will return all originals and copies or extracts, summaries and the like made therefrom to the Company.
Article 4. Term and Termination
- The term of this Agreement shall commence upon the Effective Date and shall continue until mutually terminated by both parties.
- Either party may terminate this Agreement by prior written notice to the other party, which party then accepts termination. In the event of such termination, neither party shall be liable to the other party for any failure to perform or for any additional payment hereunder. Each party shall bear its own costs and expenses incurred prior to such termination.
- Upon termination of this agreement, the Investor shall immediately cease to be entitled to shares not vested.
- Company may upon termination of this agreement buy back from the Investor all Company Shares then held by Investor by paying to the Investor an amount equal to _______________ for such Company Shares held. Upon receipt of payment, Investor will deliver certificates for the Company Shares to Company by reputable overnight courier for cancellation.
- In the event of Termination, all obligations of either party to the other under this Agreement shall cease, other than (a) the obligations under Article 3, and (b) the indemnification obligations of the parties set forth in Article 7. In the event that Investor terminates this Agreement prior to ________________________ then Investor shall be obligated to surrender to Company the number of Company Shares issued to Investor pursuant to Sections 3.1 (i), 3.1 (ii) and 3.1 (iii) in the same proportion that the number of days that the Agreement was terminated by Investor prior to __________________ bears to the number of days in the period from the date of this Agreement to _____________________. This obligation to surrender Shares to Company shall not be effective in the event Investor terminates this Agreement as a result of Company’s breach of any terms of this Agreement.
Article 5. Disclaimer of Warranties; Acknowledgements
Investor MAKES NO REPRESENTATIONS, EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. Company hereby acknowledges and agrees that (i) it is a business enterprise that has entered into this Agreement with Investor for the limited purposes set forth in this agreement and that the rights and obligations of the parties hereto are contractual in nature; and (ii) Investor has not made any warranties or guarantees of any nature with respect to the satisfactory conclusion of any services to be provided to Company by it hereunder or as to the economic, financial or other results which may be obtained or experienced by Company as a result thereof. Company and Investor disclaim any intention to impose fiduciary duties or obligations on the other by virtue of the engagement contemplated by this agreement, and no other person or entity shall have any rights or obligations hereunder except as expressly provided herein. Company further acknowledges that any role of Investor in connection with any capital raising transaction contemplated or undertaken by Company during the term hereof shall be consultative in nature and that Company shall not request Investor to take any action or perform any services such that they would be deemed to be a “broker” under any relevant federal or state securities laws or regulations.
Article 6. Securities Law Compliance
- In connection with its receipt of Company Shares pursuant to Article 2, Investor represents and warrants that:
- Investor is acquiring the Company Shares for its own account, for investment, and not with a view to any resale or distribution thereof in any transaction which would be in violation of federal or state securities laws or which would require the issuance of such Company Shares to be registered under the Securities Act of 1933, as amended (the “Securities Act”), subject, nevertheless, to the disposition of Investor’s property being at all times within its control. Company agrees to cooperate with Investor in effecting such transfers in accordance with terms and conditions intended to ensure compliance with applicable exemptions from registration under the Securities Act, which will, among other things, require the transferees to make representations and warranties and acknowledge restrictions to Company similar to those made and acknowledged by Investor to Company in this Section 6.1.
- Investor understands and agrees that because the Company Shares to be received by it pursuant to this Agreement have not been registered under the Securities Act, Investor cannot dispose of any or all of its Company Shares until such Company Shares are subsequently registered under the Securities Act or an exemption from such registration is available (e.g., Rule 144 under the Securities Act). Investor understands and agrees that each certificate representing such Company Shares will bear the following legend or one substantially similar thereto:
- THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY APPLICABLE STATE OR FOREIGN SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING TO SUCH SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE AND FOREIGN SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
- Investor is sufficiently knowledgeable and experienced in financial matters so as to be able to evaluate the risks and merits of its investment in Company Shares and is able to bear the economic risk of loss of its entire investment in Company Shares.
- Investor has been advised that the Company Shares to be received by it pursuant to the transactions contemplated by this Agreement have not been registered under the Securities Act or under the “blue sky” laws of any jurisdiction and that Company, in issuing such Company Shares to Investor pursuant to this Agreement, is relying upon, among other things, the representations and warranties of Investor contained in this Section 6.1.
Article 7. Indemnification
- Company shall, at all times during the term of this Agreement and thereafter, indemnify, defend and hold harmless Investor and its affiliates, and the respective trustees, officers, employees, and agents of Investor and its affiliates, against all claims and expenses, including legal expenses and reasonable attorneys fees, arising out of the death of or injury to any person or persons resulting from the production, manufacture, sale, use, lease, consumption or advertisement of products incorporating or making use of the technology, if any, assigned, licensed or otherwise provided or made available to Company under this Agreement, unless such claim or expense is due to the sole and direct negligence of Investor. Further, Company agrees to indemnify, defend and hold harmless Investor and its trustees, officers, employees, and agents from and against any and all losses, claims, damages, liabilities or costs, as and when incurred, to which any such person may become subject or which are asserted against any of them, directly or indirectly, in any way related to Investor’s status as a shareholder of Company or any services provided by Investor pursuant to this Agreement; provided, however, that Company shall not be liable under the foregoing indemnity agreement in respect of any liability to the extent that such liability is found in a final judgment by a court of competent jurisdiction, not subject to further appeal, to have resulted primarily from Investor’s gross negligence or willful misconduct in the performance of its duties under this Agreement. Investor at all times reserves the right to select and retain its own counsel, at its own expense, to represent Investor’s interests in any such action.
- Neither party shall be liable to the other party for any indirect, special, consequential or punitive damages whatsoever, whether grounded in tort (including negligence), strict liability, contract or otherwise.
- Company shall at all times comply in all material respects, through insurance or self-insurance, with all statutory workers’ compensation and employers’ liability requirements covering any and all employees with respect to activities performed under this Agreement.
Article 8. Additional Representations, Warranties and Covenants
- Company represents, warrants and covenants that it shall have all requisite authority to issue Investor the Company Shares as provided herein, free and clear of all liens, encumbrances and restrictions. Company represents that it has provided Investor with full and complete copies of any shareholder agreements or other agreements among the shareholders of Company that in any way relate to the ownership of Company Shares.
- Company shall provide Investor copies of its annual financial statements and shall permit representatives of Investor to examine and make abstracts from an of Company’s books and records during reasonable business hours on reasonable advance written notice and shall cooperate and assist Investor in the valuation of Company Shares owned by Investor.
- Investor shall at any time, in its sole discretion, have the right to withdraw as a shareholder of Company by assigning to Company, for no consideration, all Shares then held by Investor and Company shall accept this assignment and withdrawal.
Article 9. Use of Names
Except as expressly set forth herein, neither party may identify the other party (or any affiliate thereof) in any promotional advertising or other promotional materials to be disseminated to the public or any portion thereof or to use the name of any staff member, employee, or student or any trademark, service mark, trade name, or symbol or logo, or that is associated with it, without such other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Article 10. Notices
Any notice required to be given pursuant to the provisions of this Agreement shall be in writing and shall be deemed to have been given at the time when actually received as a consequence of any effective method of delivery at the address below or at such changed address as the party shall have specified by written notice, provided that any notice of change of address shall be effective only upon actual receipt.
If from Company to Investor:
If from Investor to Company:
With a copy to:
Article 11. Alternative Dispute Resolution
- The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between officials of each party who have authority to settle the controversy.
- If the matter has not been resolved by negotiation within thirty (30) days, the parties shall attempt in good faith to settle the dispute by mediation in Ithaca, New York.
- If the matter has not been resolved by mediation within ninety (90) days of the initiation of such procedure, or if either party will not participate in mediation, then the parties may pursue all legal and equitable rights. Venue for any such proceeding shall be in the state or federal courts serving Tompkins County, New York.
Article 12. Successors
This Agreement shall be binding on the parties and their respective executors, personal representatives and successors whomsoever and, unless the context otherwise requires, references to the Company and Investors shall include references to such executors, personal representatives and successors.
Article 13. Amendments
No amendment or variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
Article 14. Choice of Law
This Agreement shall be construed and interpreted in accordance with the laws of the State of Texas, without regard to that state’s provisions regarding the conflict of laws.
Article 15. Severability
If any of the provisions of this Agreement are void or unenforceable, the remaining provisions shall nevertheless be effective, the intent being to effectuate this Agreement to the fullest extent possible.
Article 16. No Transfer of Rights
No transfer, grant or license of rights under any patent or copyright or to any intellectual property, proprietary information and/or trade secret is made or is to be implied by this Agreement except as may be expressly stated otherwise herein.
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IN WITNESS WHEREOF, authorized representatives of the parties hereto have executed this Equity Investment Agreement as of the Effective Date.
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