WHEREAS:

(A) The Company is engaged in agriculture including but not limited to, raising of crops, fishing, poultry, livestock farming, greenhouse, processing and so on.

(B) The Company is ready to accommodate interested parties to invest in the business listed in Recital A above.

(C) The Investor has indicated interest in investing in any of the following areas: Livestock, Fishery, Snail, Poultry, ( in the “Business”).

(D) The Parties wish to work together in the development, design, financing, operation and running of the Business.

(E) This Agreement sets out the terms and conditions applicable to the operation of the Business.

IT IS DECLARED AND AGREED as follows:

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

In this Agreement, unless the context indicates otherwise:

“Agreement” means this Active Investors Agreement;

“Allowable Expenses” means all expenses incurred in the day-to-day running of the Business including salary payment, operations costs and payments due to the Passive Investors under the Passive Investors’ Agreement;

“Authority” means any national, federal, state or local government, or governmental, statutory, regulatory, administrative, fiscal, judicial, or government-owned body, department, commission, authority, tribunal, agency or entity;

“Business” has the meaning given to it in Recital B above;

“Business Day” means a day when Banks are open for normal business in Lagos, Nigeria;

“Business Development Budget” means the proposed budget for the Business as agreed by the Parties as set out in Schedule 1 to this Agreement;

“Good Utility Practice” means, at any particular time, those practices, methods and acts as are in accordance with good standards of prudence which would have been expected to accomplish the desired result at the lowest reasonable cost consistent with reliability, safety and expedition;

“Insolvency Event” means: either Party becoming unable to pay its debts as they become due and includes any formal step taken to assign or arrange with creditors, a Party been declared bankrupt, wound up or liquidated by a Court of competent jurisdiction and same has not been set aside or appealed within [60 days];

“Investment” shall have the meaning given to it in clause 3.1 of this Agreement;

“N” or “Naira” means the lawful currency of Nigeria;

“Person” includes any individual, company, corporation, firm, partnership, trust, joint venture or association, whether a body corporate or an unincorporated association of persons;

“Promoters” means Mr. Samuel Efeakpor and any other person designated as such by Mr. Samuel Efeakpor; and

“Term” has the meaning given to it in clause 3.3 of this Agreement.

1.2. Interpretation

1.2.1. In this Agreement, a reference to:

1.2.1.1 a statutory provision includes a reference to the statutory provision as modified, re-enacted or consolidated from time to time whether before or after the date of this Agreement and any subordinate legislation made under the statutory provision whether before or after the date of this Agreement;

1.2.1.2 a person includes any individual, company, corporation, firm, partnership, trust, estate, joint venture or association, whether a body corporate or an unincorporated association of persons;

1.2.1.3. a “Party” or other person or persons includes a reference to that Party or person’s legal personal representatives, successors-in-title and permitted assigns;

1.2.1.4. a recital, clause, paragraph or schedule, unless the context otherwise requires, is a reference to the relevant recital, clause, paragraph or schedule of this Agreement;

1.2.1.5.words and terms importing the plural include the singular and vice versa;

1.2.1.6. any document or agreement, including this Agreement, shall be deemed to include references to such document or agreement as amended, modified, supplemented or replaced from time to time in accordance with its terms and (where applicable) subject to compliance with the requirements set out herein;

1.2.1.7. a right means any right, privilege, power, immunity or other interest or remedy of any kind; and

1.2.1.8. the table of contents, the summary and the headings are inserted for convenience only and do not affect the interpretation of this Agreement.

2. Representations and Warranties

2.1   Each Party hereby warrants, represents and undertakes to the other Party that:

(a) it has the power to execute, deliver and perform its obligations under this Agreement and all necessary approvals and consents have been taken or received to authorise the execution, delivery and performance of this Agreement; and

(b) its obligations under this Agreement constitute its legal, valid and binding obligations and are in full force and effect.

2.2   The Investor represents and warrants that the funds it will use for the Investment is not a proceed of fraud or any criminal activity.  The Investor hereby agree to indemnify and to hold the Company, the Promoters and Other Investor harmless for any liability incurred by any one of them as result of a breach of this warranty and representation.

3.   Investments and Repayments

3.1. The Investor hereby agree within [5] Business Days from the date of this Agreement to invest amount specified in the application form (which shall at all times not be less than N1,000,000.00 (One Million Naira Only)) (the “Investment”) as its contribution to the Business.

3.2  For the purpose of this Agreement, the Company shall be deemed to have received the Investment from the date the Investor receives the Company’s acknowledgment (the “Commencement Date”).  Provided that where the Company fails to send an acknowledgment or complaint as the case may be after two business days of receipt of the evidence of payment from the Investor, the Company shall be deemed to have received the Investment.

3.3        The Investor agree that the Investment shall be for a minimum period of twelve (12) months and a maximum period of eighteen (18) months (the “Term”) subject to renewal on terms to be agreed by the Parties. Provided that the Company reserves the right to refuse to renew the Terms.

3.4   Subject to the provision of clause 3.5, the Investor shall upon the expiration of the Term be entitled to a refund of the Investment plus commission calculated at [30%] of the profit of the Business during the Term less all applicable taxes.  Parties agree that the payment under this clause 3.4 shall only be made after the Business has been audited for the Term and the profits declared.

3.5    Notwithstanding any provision to the contrary in this Agreement, the Parties agree that at the end of the Term, the Business shall be audited jointly by the Parties and where the Business is declared to be running at a loss the Investor shall not be entitled to commission under cause 3.4 above and the Investor may choose to,

3.5.1     roll over the Investment on such terms as may be agreed with the Company, or

3.5.2     terminate the Investment and be paid off as follows:

(i) the Parties shall engage an independent auditor to ascertain the then value of the Business;

(ii) the Investor shall only be entitled to its percentage share of the then value of the Business which shall in no event exceed 30% of the value of the Business or the Investment, whichever is lower.

3.6   The Investor shall be entitled at any time to request for the liquidation of the Investment by giving not less than 3 months’ notice in writing to the Company.  Provided that a request for liquidation of the Investment shall not be made earlier than one (1) year from the Commencement Date and the Investor shall:

3.6.1    where the Business is running at a profit at the time of the notice, be entitled to the Investment but shall forfeit the commission under clause 3.4 above; and

3.6.2   where the Business is running at a loss at the time of the notice, the provision of clause 3.5.2 above shall apply mutatis mutandis.

3.7        Notwithstanding the provisions of clause 3.6 above, where the Company is running at a profit at the time of the early termination notice under clause 3.6 above, the Investor shall in addition to the Investment be entitled to additional payment from the Company calculated at 10% per annum of the Investment calculated from the Commencement Date till the date of the notice of early termination.

3.8   Without prejudice to the generality of this Agreement, the Investor shall be entitled to liquidate only a part of the Investment, PROVIDED, that the Investor shall at all times retain not less than N1,000,000.00 (One Million Naira Only) as Investment in the Company.

3.9    All payments to the Contributor shall be made to the Contributor’s account provided in the Investment Form, less all applicable taxes.

4.  Audit

4.1   The Company shall at the end of every financial year and after audit [by the Company’s auditors] declare the profit or loss of the Business for the financial year, and the provisions of clauses 3.4 and 3.5, as the case may be, shall apply.  For the purpose of declaring the profit of the Business, all Allowable Expenses shall be deducted.

4.2   The Parties agree that wherever it is required under this Agreement to determine profit or loss,

4.2.1     except where there is dispute as to the value of the Business, the Parties shall jointly audit and access the Business; and

4.2.2     where there is a despite as to the value of the Business, an independent auditor shall be engaged by the Parties to audit the Business.

PROVIDED that in each case, regard will only be had to the Business and not to any other undertaking of the Company.  The fees for any independent auditor shall unless otherwise agreed by the Parties, be treated as an Allowable Expense.

5. Steering Committee

The day to day operation and decision making in relation to the Business shall be made by the Steering Committee headed by the Chairman.

6. Functions of the Steering Committee

The Steering Committee shall perform, inter alia, the following functions:

(a) monitoring the progress of the implementation of the Business,

(b) recommending and approving the Business Development Budget and agreeing amendments thereto as may be required from time to time;

(c) monitoring compliance with the Business Development Budget or other budgets formally agreed between the Parties from time to time;

(d) monitoring the incurrence of costs on the Business; and

(e) ensure that appropriate records are kept on the operation of the Business.

7. Steering Committee Members 

7.1    The Steering Committee shall consist of three (3) individuals, two (2) individuals to be nominated by the Company, and one (1) to be nominated between the Investor, provided that the Investor has put in a minimum of N1,500,000 (One Million Five Hundred Thousand Naira) Investment in the Business.

7.2   The Parties hereby agree that Mr. Samuel Efeakpor, as a Promoter shall be the Chairman of the Steering Committee.

7.3      The Company shall have the right to remove and replace its appointed members on the Steering Committee at any time provided that the Investor shall not change the appointed member except with the prior written consent of the Company.

7.4    The Company shall remunerate the Chairman and any other member of the Steering Committee who works on a full-time basis in respect of the Business.  Such remuneration shall be as fixed from time to time by the Company.

8. Steering Committee Meetings 

8.1    The Steering Committee shall meet as often as is necessary or appropriate to carry out the activities contemplated by this Agreement, which meetings may be held by video, audio, tele-conference and/or any other electronic medium agreed by the Steering Committee. 

8.2     Each Party shall be entitled to convene a meeting of the Steering Committee upon three (3) days’ prior written notice to the other Parties (or less if the Parties agree).

8.3    The quorum of the Steering Committee shall be any two (2) members of the Steering Committee.

8.4    Except as otherwise provided in this Agreement, all decisions of the Steering Committee shall require the approval of all members of the Steering Committee present at such meeting.  PROVIDED that in the event of a tie, the Chairman shall have a veto power.

9. Business Development Budget

The Chairman shall be responsible for preparing the Business Development Budget for the Business.

10. TERMINATION

10.1    This Agreement will terminate automatically and without further action upon the occurrence of the earlier of:

(a) a material breach by one Party of its obligations under this Agreement, which breach (if capable of remedy) is not remedied within fourteen (14) days of receipt of written notice from the other Parties requiring the breaching Party to remedy such breach (and for the purposes of this Clause 10 (Termination) the termination shall be considered to occur upon the expiry of such fourteen (14) day period if the breach has not been remedied);

(b) an Insolvency Event occurs in relation to a Party;

(c) the date falling three (3) years from the Commencement Date hereof, unless the Parties agree to extend the term of this Agreement in writing; and

(d) such earlier date as the Parties agree.

10.2    Upon termination of this Agreement, no Party shall have any further obligations under this Agreement except for such obligations as have accrued as of the date of such termination or by their express terms survive the expiration or earlier termination of this Agreement or obligations under the NDA

11. Limitation of Liability

11.1    Neither Party shall be liable to the other Party for special, consequential, or punitive damages or indirect costs or expenses or be liable for direct or indirect loss of profits or other damages except to the extent expressly provided in this Agreement.

11.2  Each Party shall indemnify and hold harmless each other Party from and against any and all costs, losses, claims, damages, liabilities and expenses (including reasonable legal fees) incurred by the indemnified person, arising out of the fraud, negligence, or willful misconduct of, or violation of law by, the indemnifying Party relating to matters arising out of this Agreement; and where such cost, loss, claim, damage, liability or expense is caused by the joint or concurrent negligence or fault of the Parties, such liability shall be borne by each Party in proportion to its own negligence or fault.

11.3  In no event shall a Party or its directors, officers, employees, agents and representatives be liable whether in contract, tort, negligence, strict liability or otherwise for any loss of revenue or profit, loss of contract, penalties, special, indirect, incidental, or consequential loss or damage whatsoever arising under or incurred in connection with this Agreement.  Provided that the Company shall be entitled to sue for loss of revenue or profit in the event of a breach of clause 2 (Representations and Warranties) and clause 12 (Confidentiality) by the Investor.

11.4    The Parties agree that the maximum limit of liability of the Company in any event shall not exceed the Investment.

12. Confidentiality

This Side Letter and the terms contained herein are confidential and shall not be disclosed without the prior written consent of the parties hereto.  Each party will ensure that all such information is protected with security measures and a degree of care that would apply to its own confidential information.

13. Governing Law and Dispute Resolution

13.1. This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria.

13.2. Any dispute arising from the subject matter of this Agreement shall be referred to arbitration to be determined by a sole Arbitrator who shall be appointed by agreement amongst the Parties, PROVIDED THAT if the Parties are unable to agree on a sole arbitrator within two (2) weeks of the date of the notice of arbitration by either Party, the sole Arbitrator shall be appointed by the President of the Chartered Institute of Arbitrators (Nigeria Branch) on the application of either Party to the dispute. The arbitration shall be conducted in Lagos, Nigeria in English language and in accordance with the provisions of the Arbitration and Conciliation Act, 1988, CAP A18 Laws of the Federation of Nigeria 2004 in force at the date of the notice of arbitration.

13.3. This clause 13 (Governing Law and Dispute Resolution) shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

13.4. The Parties hereby consent to the non-exclusive jurisdiction of the High Court of the States of Nigeria in respect of this clause and such court shall have jurisdiction to enforce any award made by an arbitrator under this clause 13 (Governing Law and Dispute Resolution).

14. No Assignment

14.1    The Company shall be entitled to assign its right under this Agreement to any third-party investor or financier without the consent of the Investor.

14.2    The Investor shall not assign any interest, benefit, right or obligation under this Agreement to any person without the prior written consent of the Company.  PROVIDED that where the Investor intends to assign or transfer in part or full its interest under this Agreement, the Investor shall first offer same to the Company.

15. Partial Validity

If any provision of this Agreement is or becomes illegal, unenforceable or invalid under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall be in any way affected or impaired thereby; provided, however, that if such severability materially changes the economic benefits of this Agreement to a Party, the Parties shall negotiate an equitable adjustment in the provisions of this Agreement in good faith.

16. Entire Agreement

This Agreement sets forth the full and complete understanding of the Parties as of the date first above written regarding the Business, and supersedes all other prior negotiations, agreements, and understandings of the Parties with respect thereto.  Except as set out in this Agreement, no Party shall be bound by any other obligations, conditions or representations with respect to the subject matter of this Agreement.

17. No waiver

 No waiver of any of the provisions of this Agreement shall be deemed to be or constitute a waiver of any other provision whether similar or not.  No single waiver shall constitute a continuing waiver.

18. No Agency

18.1   Nothing in this Agreement shall be construed to create an association, trust, partnership, joint venture, or other fiduciary relationship between the Parties or to impose a trust or partnership duty, obligation or liability between the Parties.

18.2    No Party shall by virtue of this Agreement be deemed to be the representative of the other Party for any purpose whatsoever, and no Party shall have the power or authority as agent or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of any other Party for any purpose whatsoever.

18.3   The Investor agrees that [his/her/its] entitlement in the Business shall be limited to that set out in this Agreement and shall in no event extend to the other businesses of the Company.