VIEWS: 5,499 PAGES: 10 CATEGORY: Equity Financing POSTED ON: 1/21/2011
This Investment Agreement is an agreement under which the investors invest money in the company for it to conduct business. In consideration, the investor receives interest for the money invested. This agreement functions as a written record of the complete terms and requirements of performance between a company and its investors. This document contains standard clauses commonly used in these types of agreements, as well as optional language to allow for customization to ensure the specific terms of the parties’ agreement are addressed. Use this form if one is an investor and wants to invest money in a company, or if one is a company seeking funds from an investor.
Investment Agreement This Investment Agreement is an agreement under which the investors invest money in the company for it to conduct business. In consideration, the investor receives interest for the money invested. This agreement functions as a written record of the complete terms and requirements of performance between a company and its investors. This document contains standard clauses commonly used in these types of agreements, as well as optional language to allow for customization to ensure the specific terms of the parties’ agreement are addressed. Use this form if one is an investor and wants to invest money in a company, or if one is a company seeking funds from an investor. INVESTMENT AGREEMENT THIS INVESTMENT AGREEMENT (the “Agreement”) made on this ___ day of ____________, 20__ [Instructions: Enter the date of this agreement] (the “Effective Date”). BETWEEN: ___________________ [Instructions: Enter the name of the Investor], whose principal place of business is at ________________________ [Instructions: Enter the Investor’s address] (the “Investor”); and ___________________ [Instructions: Enter the name of the Company], whose principal place of business is at ________________________ [Instructions: Enter the Company’s address] (the “Company”), hereinafter referred to collectively as (the “Parties”). I. TERM 1.1 The term of this Agreement shall be from the Effective Date and shall continue until all of Company’s obligations under this Agreement have been satisfied, including but not limited to the reporting and payment provisions contained in Articles IV and VII. II. INVESTMENT 2.1 Subject to the further terms and conditions hereof, as determined by Investor in its sole discretion, Investor shall invest a sum not to exceed _____________ Dollars ($_______)[Instructions: Enter the dollar amount of the investment]. The total aggregate amount paid by Investor to the Company shall hereinafter be referred to as the “Funds.” III. CLOSING 3.1 The closing in connection with this Agreement (the “Closing”) shall take place on ____________, 20__, [Instructions: Enter the closing date] (the “Closing Date”) in the offices of Investor located at ______________________________________ [Instructions: Enter the address of the location where the closing will take place] or at some other place and time mutually agreed upon. Alternatively, the Parties may, by mutual consent, forego a formal closing. IV. RECORDS AND REPORTS 4.1 The Company shall submit to Investor the following: (A) Quarterly financial reports beginning ________________, 20__ [Instructions: Enter the date on which the Company will begin providing quarterly financial reports] and quarterly thereafter until any and all repayment due has been tendered, (“Quarterly Revenue Statement”). Each Quarterly Revenue Statement shall be accompanied by full payment of any reimbursement due and owing pursuant to Article VII of this Agreement. Along with this © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 2 Quarterly Revenue Statement, the Company’s financial statements for the previous quarter, including a balance sheet and income statement, should be provided; (B) Project Activities Reports beginning ________________, 20__ [Instructions: Enter the date on which the Company will begin providing monthly project reports] for the period beginning on the Closing Date and continuing monthly thereafter for the Term of this Agreement, the Company shall provide a monthly project report detailing its activities in that particular month; and (C) Company agrees to provide any such other reports or information which Investor may reasonably request from time to time. 4.2 Investor acknowledges that it has received and reviewed all requested records and documents and has completed its due diligence to its satisfaction. V. CONFIDENTIALITY 5.1 Investor agrees to hold Company’s proprietary and confidential information, including all financial records, business or marketing plans, methods and practices, any other idea and information not generally known to the public that which relates to the Company and/or the Company’s business practices (the “Confidential Information”), in confidence. 5.2 Investor agrees not to use the Confidential Information disclosed to it by Company for its own use or for any purpose except to carry out the undertaking of its investor relationship with the Company. Investor will not disclose such Confidential Information to anyone, including to their employees; however, the Investor may disclose such information to certain employees who are required to have such information to carry out the investment. Investor will have employees, to whom Confidential Information is disclosed, sign a Non-Disclosure Agreement and will notify the Company in writing of the names of the persons who have had access to the Confidential Information. Investor agrees that it will take all reasonable steps to protect the secrecy of and avoid disclosure or use of Confidential Information and to prevent it from falling into the public domain or the possession of unauthorized persons. Investor agrees to notify the Company in writing of any misuse or misappropriation of Confidential Information that may come to its attention. 5.3 Notwithstanding any other provision of the Agreement, disclosure of Confidential Information shall not be precluded if such disclosure: (A) is in response to a valid order of a court or other governmental body of the United States or any political subdivision thereof; (B) is otherwise required by law; or, (C) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary. © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 3 5.4 In the event that Investor is requested in any proceedings before a court or any other governmental body to disclose Confidential Information, it shall give Company prompt notice of such request so that the Company may seek an appropriate protective order. If in the absence of a protective order, Investor is nonetheless compelled to disclose Confidential Information, Investor may disclose such information without liability hereunder; provided, however, that such party gives the Company advance written notice of the information to be disclosed and upon the request and at the expense of the Company, uses its best efforts to obtain assurances that confidential treatment will be accorded to such information. VI. INSPECTION OF RECORDS 6.1 Company shall allow any authorized representative of Investor to inspect and audit, at reasonable times, its financial, business and State and federal tax records. The Company shall retain such records until three years after the termination of this Agreement. The Company agrees to allow any authorized representative of Investor for the purpose of inspection and auditing, to visit and inspect, with reasonable notice and at reasonable times, all property, offices and production facilities owned, leased or otherwise controlled by Company. VII. QUARTERLY REVENUE PAYMENT 7.1 Company shall tender quarterly payments commencing on _______________ [Instructions: Enter the date on which the Company will begin tendering quarterly payments] (“First Payment Date”) and ending ____________ (___) [Instructions: Enter the number of years the Company will make quarterly payments] years after the First Payment Date, in an amount equal to __________ percent (___) % [Instructions: Enter percentage] of the Company’s Quarterly Revenues and subject to the following: (A) For purposes of this Agreement, the term “Quarterly Revenues” shall mean the Company’s gross sales or service revenues for each fiscal quarter. (B) The total amount of all Quarterly Revenue Payments in a calendar year shall not exceed a sum equal to ____________ (___) % [Instructions: Enter percentage] of the Funds. (C) The total amount of all Quarterly Revenue Payments shall not exceed a sum equal to two hundred percent (200%) of the Funds. VIII. PREPAYMENT 8.1 The Company may at any time and from time to time prepay the Funds invested by the Investor, in whole or in part, upon at least three business days' prior written notice to the Investor. Investor shall not be subject to any penalties or additional fees for prepayments. IX. COMPANY’S REPRESENTATIONS AND WARRANTIES 9.1 The Company hereby represents and warrants to Investor that: © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 4 (A) Company is duly organized and in good standing in the State of _______________ [Instructions: Enter the name of the state in which the Company is organized]. The Company has all requisite power and authority to own its properties and conduct its business as currently being conducted. The Company’s principal place of business is located in the State of __________________ [Instructions: Enter the name of the state in which the Company’s principal place of business is located]; (B) Company has all requisite power and authority to execute and deliver this Agreement and all other documents in connection with this Agreement, and to carry out the terms of this Agreement, and has taken all action required on its part required for the execution, delivery and performance of this Agreement, including obtaining the agreement from the Company’s Board of Directors and/or shareholders. This Agreement is the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as its enforceability may be limited by bankruptcy laws and general principles of equity; (C) Neither this Agreement nor any other written information provided to Investor by the Company in connection with the Agreement contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein or herein not misleading; (D) Neither the Company nor any of its directors, officers, partners or members, as the case may be, has been convicted of a felony; (E) Company has filed all federal, State and local tax returns and reports as required by law. These returns and reports are true and correct in all material respects. The Company has paid all taxes, assessments and governmental charges due, except those contested in good faith. No deficiency assessment with respect to or proposed adjustment of the Company’s federal, state, county or local taxes is pending or, to the best of the Company’s knowledge, threatened. There is no tax lien (other than for current taxes not yet due and payable), whether imposed by any Federal, state, county, local taxing authority, outstanding against the assets, properties or business of the Company; (F) No third party has claimed or, to the best of the Company’s knowledge has reason to claim, that any principal of the Company or other person employed by or affiliated with the Company has: (i) violated or, may be violating any of the terms of his employment, non- competition or nondisclosure agreement with such third party; (ii) disclosed or may be disclosing or utilized or may be utilizing any trade secret or proprietary information of such third party; or (iii) interfered or may be interfering in the employment relationship between such third party and any of its present or former employees; (G) There is no litigation or other governmental proceeding, including bankruptcy proceedings, currently pending or, to the best of the Company’s knowledge threatened, against the Company; (H) The execution, delivery and performance of this Agreement does not and will not conflict with or constitute a material default under any contract, promissory note, mortgage or other instrument; and © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 5 (I) The Company owns, or has a license for, all patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual and proprietary property (collectively, “Intellectual Property”) which are necessary to conduct its business and commercially develop and market its services or products. The Company owns, or will upon development own, all Intellectual Property relating to its services or products. [Instruction: Investor should consider limiting the Company’s ability to take on additional debt as it could impair Company’s ability to make payments under this Agreement. Same would hold true for the sale of any assets. A solution is to not allow additional debt or the sale of assets without notice to Investor and an opportunity to object.] X. DEFAULT 10.1 The Company shall be in default under this Agreement upon the occurrence of any of the following; provided, however, that Investor shall first provide Company with written notice of such default and an opportunity to cure such default within thirty (30) days after notice, unless such default is not, in the sole determination of Investor, curable: (A) The Company fails to submit any report to Investor due pursuant to Article IV or any other provision of this Agreement; (B) The Company fails to make any payment to Investor due pursuant to Article VII or any other provision of this Agreement; (C) Any representation or warranty under Article IX of this Agreement is discovered to not be true; (D) The Company fails to perform, comply with or observe any of the conditions, terms or covenants contained under this Agreement; (E) Any document submitted or to be submitted in connection with this Agreement contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein not misleading; and (F) The Company or any of its directors, officers, partners or members, as the case may be, is convicted of a felony. XI. RIGHTS AND REMEDIES 11.1 Upon the occurrence of a default, Investor may: (A) Require full repayment of the Funds in cash or by certified check within 30 days of written notice to Company of a default, and Company’s failure to cure the default; © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 6 (B) Require full payment of all other monies owed Investor pursuant to this Agreement in cash or by certified check within 30 days of written notice to Company of a default, and Company’s failure to cure the default; (C) At any time or from time to time proceed to protect and enforce all rights and remedies available to Investor under this Agreement by suit or by any other appropriate proceedings, whether for specific performance of any covenant or agreement contained in the Agreement, or damages permitted under applicable law or regulations; (D) All remedies provided for in this Agreement are cumulative and shall be in addition to any and all other rights and remedies available to Investor at law or in equity. The exercise of any right or remedy by Investor shall not in any way constitute a cure or waiver of any default, nor invalidate any act done pursuant to any notice of default, nor prejudice Investor in the exercise of those rights; and (E) If Investor suspends or terminates this Agreement, the rights and remedies available to Investor shall survive such suspension or termination. XII. INDEMNIFICATION 12.1 Company shall indemnify, save harmless and defend Investor and their employees and agents from any loss, damage, claim or other expense suffered or incurred by them or any of them by reason of Company’s negligence or failure to perform any of the obligations required herein including any reasonable costs, fees, and expenses in connection with Investor’s efforts to collect any monies owed pursuant to, or enforce a provision of, this Agreement. XIII. COMPLIANCE WITH APPLICABLE LAW [optional] 13.1 Company agrees to comply with all applicable federal, state and local law, including all such laws that prohibit discrimination. Company covenants that it will not discriminate on the basis of race, color, sex, sexual orientation, religion or national or ethnic origin in its hiring of contractors, and shall prohibit its contractors from engaging in such discrimination in the hiring of subcontractors. 13.2 Company certifies and covenants that it shall make a good faith effort to eliminate illegal drug use and alcohol and drug abuse from its workplace during the term of this Agreement. Specifically, Company shall: (i) prohibit the unlawful manufacture, distribution, dispensation, possession, or use of drugs in its workplace; (ii) prohibit its employees from working under the influence of alcohol or drugs; (iii) not hire or assign to work on an activity funded in whole or part with State Funds, anyone whom it knows, or in the exercise of due diligence should know, currently abuses alcohol or drugs and is not actively engaged in a bona fide rehabilitation program; (iv) Promptly inform the appropriate law enforcement agency of every drug related crime that occurs in its workplace if the Company or any of its employees has observed the violation or otherwise has reliable information that a violation has occurred; and (v) Notify employees that drugs and alcohol abuse are banned in the workplace, impose sanctions on © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 7 employees who abuse drugs and alcohol in the workplace, and institute steps to maintain a drug and alcohol free workplace. 14. MISCELLANEOUS 14.1 Entire Agreement. This Agreement represents the entire Agreement between Investor and Company and supersedes any and all prior understandings or oral or written agreements regarding the investment of the Funds by Investor in Company. This Agreement may be amended from time to time at the direction of, or with the concurrence of Investor, and only in writing executed by Company and Investor. 14.2 Assignment. No right, benefit or advantage inuring to Company under this Agreement may be assigned, and no burden imposed on Company hereunder may be delegated, without the prior written approval of Investor. 14.3 Notices. Any notices which any party may be required, or may desire, to give shall, unless otherwise specified, be in writing and shall be (i) hand delivered, effective upon receipt (ii) sent by United States Express Mail or by private overnight courier, effective upon receipt, or (iii) served by certified mail, postage prepaid, return receipt requested and addressed as follows: In the case of Investor to: __________________________ __________________________ __________________________ Attention: _________________ [Instructions: Enter the Investor’s address and name of person to whom notices should be addressed] In the case of Company to: __________________________ __________________________ __________________________ Attention: _________________ [Instructions: Enter the Company’s address and name of person to whom notices should be addressed] 14.4 Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns, and shall inure to the benefit of Investor and its successors and assigns. 14.5 Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of ___________ [Instructions: Enter the name of the state whose laws will govern this agreement]. Company hereby expressly consents to the personal jurisdiction of the state and federal courts located in _____________ [Instructions: Enter the name of the state that will © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 8 serve as the venue for any lawsuit against the Company] for any lawsuit filed there against Company by the Investor arising from or relating to this Agreement. 14.6 Dispute Resolution. All disputes shall be finally resolved by arbitration under the rules of the American Arbitration Association. Arbitrators shall be appointed in accordance with said Rules and any consistent provisions of the internal laws (except conflict of law rules) of the State of ____________ [Instructions: Enter the name of the state whose laws will apply to any arbitration between the parties]. The arbitrators so appointed shall have the authority to determine all issues of fact. The Parties, their representatives, other participants and arbitrators shall hold the existence, subject matter and result of arbitration in confidence. The prevailing Party in any legal proceeding shall be entitled to recover its legal expenses, including, but not limited to, the costs of any court or arbitration proceeding and reasonable attorneys’ fees. 14.7 Severability. The invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions hereof, except that any invalidity of the repayment obligations of the Company under this Agreement shall constitute an event constituting default hereunder. 14.8 Waiver. The failure of Investor to insist upon performance of any term of this Agreement at any time and from time to time shall not be deemed to be a waiver of any term of this Agreement. 14.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one Agreement. IN WITNESS WHEREOF, the Company and Investor have caused this Agreement to be executed, delivered, and witnessed by their duly authorized officers effective the date first above written. INVESTOR COMPANY By:_________________________ (signature) By:_______________________ (signature) Name: Name: Title: Title: © Copyright 2015 Docstoc Inc. registered document proprietary, copy not 9