THIS AGREEMENT is made

BETWEEN:-

 

A user hosted on ATA PLUS’ equity crowdfunding platform at www.ata-plus.com (hereinafter referred to as the “Platform") to raise funds by offering its shares for sale and subscription by investors through an equity crowdfunding campaign on the Platform (hereinafter referred to as the “Issuer”).

The Issuer, JOSENS PROJECTS SDN BHD (Company No. 0827675H), is a private company limited by shares incorporated in Malaysia with a registered address at NO. 23, GROUND FLOOR, JALAN CAMPBELL, SEREMBAN 70000 NEGERI SEMBILAN. 

 

AND

 

An individual or company who wishes to invest in an Issuer in return for the shares of the Issuer issued through the process of equity crowdfunding on the Platform (hereinafter referred to as the “Investor”).

The details of the Investor are as stated in Schedule 1 herein.  

(Hereinafter referred to individually as a ‘Party’ or collectively as the “Parties”)

 

WHEREAS: 

  1. Ata Plus Sdn Bhd is a Recognised Market Operator of an Equity Crowdfunding Platform registered by the Securities Commission of Malaysia pursuant to section 34 of the Capital Markets and Services Act 2007  (hereinafter referred to as the “Operator”).  

  2. The Issuer intends to raise funds by offering its shares for purchase and subscription by Investors through an equity crowdfunding campaign on the Platform. In that regard, the Issuer has listed its terms of offer, business plan and financial information on the Platform for the purpose of raising the targeted equity crowdfunded amount.

  3. The Investor through the Platform is desirous to invest in the Issuer in return for the Issuer’s shares pursuant to the Issuer’s terms of offer as listed on the Platform (hereinafter referred to as the “Term Sheet”) and subject to the terms of this Agreement.

  4. The Parties seek to regulate their conduct, relationship, duties, obligations and / or rights in respect of the aforesaid engagement in accordance with the terms and conditions as set out in this Agreement, which are to be read and construed together with the Issuer’s Term Sheet.
     

NOW THIS AGREEMENT WITNESSETH as follows:-

  1. THE INVESTMENT

    1. In consideration of the Issuer's undertaking to perform the terms of this Agreement, the Investor hereby agrees to invest the amount as specified under Schedule 1 of this Agreement (hereinafter referred to as "the Investment Amount"). 

    2. The Investment Amount is to be paid in full by the Investor into a trust account established and maintained by the Operator in a licensed institution which is administered by an independent registered trustee until the end of the fundraising period as stipulated in clause 3 below. 

    3. The Issuer agrees to accept the Investment Amount subject to and upon the terms and conditions as set out in this Agreement, the Term Sheet and as prescribed by the Operator.

    4. Upon a successful equity crowdfunding campaign by the Issuer, the Parties hereby agree that:

      1. In the event that the Investment Amount is less than Ringgit Malaysia Three Million (RM 3,000,000), the Investor shall be registered as a partner (hereinafter referred to as “Partner”) in a Limited Liability Partnership to be incorporated under this Agreement (hereinafter referred to as the “LLP”) whereas all rights and obligations of the Investor as a partner in the LLP shall be governed by the terms of the Partnership Deed as annexed in Annexure A of this Agreement herein. The Investor shall therefore receive an indirect shareholding in the Issuer through the LLP subject to the terms of the Partnership Deed. 

      2. In the event that the Investment Amount is equal to or more than Ringgit Malaysia Three Million (RM 3,000,000), the Investor shall be registered as a shareholder in the Issuer, whereby the Issuer shall cause for the transfer and / or subscription of shares in favour of the Investor. The Investor shall therefore receive a direct shareholding in the Issuer in proportion to the Investment Amount as stipulated in Schedule 1 of this Agreement herein.

    5. The Operator shall only release the Investment Amount to the Issuer upon the following conditions being met:

      1. The targeted amount sought to be raised by the Issuer on the Platform has been met;

      2. There is no material adverse change relating to the Issuer’s offer during the fundraising period; and

      3. The cooling-off period of six (6) business days as stipulated in clause 2.1. below has expired.  

    6. For the purpose of clause 1.5.2. above, a material adverse change relating to the Issuer’s offer constitutes the following:

      1. The discovery of a false or misleading statement in any disclosures in relation to the offer;

      2. The discovery of a material omission of information required to be disclosed in relation to the offer; or

      3. There is a material change or development in the circumstances relating to the offer or the Issuer. 

  2. WITHDRAWAL AND/OR CANCELLATION OF INVESTMENT 

    1. The Investor shall be given a cooling-off period of six (6) business days commencing on the date the investment was made where within such period, the Investor shall have the right to withdraw and / or cancel the investment by providing the Operator with written notification.

    2. In the event there is a material adverse change relating to the Issuer’s offer during the fundraising period (as stipulated in clauses 1.5.2 and 1.6 above), the Investor shall be given a period of six (6) business days commencing on the date the Investor receives notice of such a material adverse change from the Operator to withdraw and / or cancel the investment.

    3. Upon the expiry of the period mentioned in clauses 2.1 and / or 2.2 above, the Investor shall no longer  be entitled to withdraw and / or cancel their investment.

  3. FUNDRAISING PERIOD 

    1. The Issuer shall endeavour to raise and / or obtain funds in order to achieve the targeted fundraising amount within the specified fundraising period of 90 days commencing on the date the Issuer’s equity crowdfunding campaign is published on the Platform (hereinafter referred to as the “Fundraising Period”), subject to any extension of the Fundraising Period which the Issuer may in their sole discretion request and obtain from the Operator. 

    2. The Issuer shall have no responsibility to notify and / or obtain approval from the Investors in requesting and obtaining such an extension of the Fundraising Period from the Operator. However, in the event the Fundraising Period is so extended, such extension shall be notified to the Investors through the Platform. 

    3. In the event the Issuer is able to successfully raise and / or obtain the targeted fundraising amount prior to the expiry of the Fundraising Period (as may be extended in accordance with clauses 3.1. And 3.2. above),  the Issuer may in its sole discretion shorten or discontinue the Fundraising Period and / or decline to accept any further investments from the Investor notwithstanding that the Fundraising Period has yet to expire. 

    4. Notwithstanding the above, the Issuer retains the sole discretion to accept, reject, and / or revoke their acceptance of any investment made by the Investor at any time within and / or after the expiry of the Fundraising Period and irrespective of the Investment Amount. 

    5. In the event the Issuer fails to raise and / or obtain the targeted fundraising amount within the Fundraising Period (as may be extended in accordance with clauses 3.1. and 3.2. above) and / or the Issuer otherwise rejects or revokes its earlier acceptance of an investment by the Investor, the Investment Amount shall be refunded to the Investor accordingly. 

    6. Pursuant to clauses 3.1 and 3.2 above, in the event the Issuer successfully raises and / or obtains the targeted fundraising amount within the Fundraising Period (as may be extended in accordance with clauses 3.1. and 3.2. above) and the Issuer accepts the investment by the Investor, the Issuer shall undertake, subject to any terms and conditions as prescribed by the Operator to execute and deliver all necessary agreements, instruments and / or documents to enforce the transfer and / or subscription of shares in the Issuer in favour of the Investor in accordance with clause 1.4 above. 

  4. REPORTING OBLIGATIONS

    1. Following a successful equity crowdfunding campaign by the Issuer, the Issuer shall report bi-annually to the Investors on the 1st week of January and the 1st week of July respectively every year post-investment (until the Investor exits the Issuer) in respect of the following matters:

      1. The progress of business or growth of the Issuer post-investment including but not limited to:

        1. Revenue growth;

        2. Customer acquisition;

        3. Regional expansion; and

        4. Number of employees.

      2. The Issuer’s utilisation of the investment funds.

      3. The estimated valuation of the Issuer; and

      4. The proposed exit plan for the Investors (if applicable). 

    2. In addition to clause 4.1.  above, the Issuer shall:

      1. Maintain accurate, complete and up-to-date  accounts and records which shall be kept in accordance with the generally accepted accounting principles applicable in Malaysia and which shall be audited annually. 

      2. Forward copies of the Issuer’s up-to-date and latest audited financial statements and tax returns to  the Investor annually within 6 months from the end of the Issuer’s financial year (until the Investor exits the Issuer). 

  5. SPECIAL COVENANT

    1. The Parties hereby  acknowledge and confirm that the Investor’s investment in the Issuer via the Platform and the Issuer’s acceptance thereof do not contravene the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. 

  6. REPRESENTATIONS AND WARRANTIES

    1. The Issuer hereby represents and warrants to the Investor as follows:

      1. The Issuer validly exists under the laws of Malaysia and is a duly incorporated body corporate with full corporate powers, eligibility and capacity to own assets and carry out its business. 

      2. The Issuer has fulfilled and secured all necessary requirements, registrations, approval and / or licenses to validly carry out its business. 

      3. The Issuer has full legal capacity, eligibility and authority to enter into this Agreement. 

      4. That the terms and conditions of this Agreement constitutes the legal, valid and binding obligations of the Issuer in accordance with its respective terms;

      5. That the Issuer is not in default under any agreement to which they are parties or by which they may be bound and no litigation, arbitration or administrative proceedings are currently filed, pending or threatened against the Issuer and / or its representatives which might impair its ability to perform this Agreement or affect the decision of  the Investor to proceed with this Agreement;

      6. No event has occurred which entitles any creditor of the Issuer to declare its indebtedness under any agreement or credit facility due and payable prior to its specified maturity or to terminate any investment or credit facility and / or to decline to make any advance or further advances thereunder;

      7. That no petition or steps have been taken or are currently pending or threatened against the Issuer to wind-up the Issuer and / or to appoint a receiver, manager or liquidator in respect of the Issuer and / or its assets;

      8. No litigation, arbitration or administrative proceedings before any board, tribunal, arbitrator and / or governmental authority is currently pending or threatened against  the Issuer or any of its assets and no order, notice or claim has been served, secured and / or threatened against the Issuer or which affects the Issuer’s business;

      9. The conduct of the Issuer’s business does not contravene any applicable laws and there are no allegations of any such contravention made against the Issuer;

      10. All information and / or documentation previously disclosed or submitted by the Issuer to the Operator pertaining to amongst others, its business, products, organization and / or assets are truthful, accurate and complete and is not misleading or deceptive in its content whether by omission or otherwise;

      11. The liability and obligations of the Issuer to the Investor  shall be valid and binding and the Investor shall not be prejudiced in any way by or notwithstanding any restructuring scheme or arrangement, whether now or hereafter, between the Issuer and any third party and / or any liability or obligations owed by the Issuer to any third party; and

      12. Where any representation, warranty or statement contained herein proves to be misleading or incorrect, it shall be deemed to have been made with the knowledge, consent or attributable to the neglect of any director, officer and / or representative of the Issuer responsible for the same. 

  7. AMENDMENTS AND SEVERABILITY

    1. Any variation, amendment and / or waiver of any of the terms, rights and / or obligations  contained in this Agreement shall only be made with the written consent by both Parties. 

    2. If at any time any provision of this Agreement is held to be illegal, void, voidable and / or unenforceable, that provision shall be read down to the extent necessary to ensure that the same is not so illegal, invalid, void, voidable and / or unenforceable and / or is to be severable without affecting the validity or enforceability of the remaining provisions of this Agreement.  The Parties shall thereupon negotiate in good faith to amend or vary the Agreement as necessary.

  8. TIME

    1. Time wherever mentioned in this Agreement shall be of the essence.

  9. INDEMNITY

    1. The Issuer hereby agrees to indemnify and hold harmless the Investor against any claims, losses, damages, expenses and / or liabilities which accrues or may accrue against the Issuer in respect of the subject matter or performance of this Agreement  and / or which arises as between the Issuer and any third party prior to or after the date of this Agreement. 

  10. COSTS

    1. Each Party shall bear their own costs and expenses incurred in respect of this Agreement.

  11. NOTICE

    1. Any notice under this Agreement shall be made in writing in the English Language and shall be deemed to be sufficiently given if the same is addressed and sent to any Party by way of registered post and / or email

  12. ENTIRE AGREEMENT

    1. This Agreement contains the entire understanding and agreement between the Parties as to its subject matter and replaces and supersedes any previous agreements, representations, warranties, commitments and / or understandings between the Parties, expressed or implied, which are not specifically provided for in this Agreement. 

  13. GOVERNING LAW

    1. This Agreement is governed by and is to be construed in accordance with the laws of Malaysia. The Parties irrevocably and unconditionally submit to the jurisdiction of the Courts of Malaysia. 

  14. DEATH OR LIQUIDATION

    1. Upon the death / liquidation of an Investor, the said Investor’s shares (and the rights attached thereto) may be transferred to any person or entity legally entitled to inherit the said Investor’s ownership of the shares in the Issuer.

    2. The Investors shall also be entitled to nominate specific beneficiaries in respect of their respective shares (and the rights attached thereto) in that regard.  

  15. DATA PROTECTION

    1. For the purposes arising from and / or in connection with the performance of this Agreement, the Parties hereby give their authorisation and consent pursuant to the Personal Data Protection Act 2010 to the collection, processing and / or disclosure of the Parties’ personal information and details by the Operator in accordance with the Privacy Policy as stated on the Platform. 

  16. KNOWLEDGE OR ACQUIESCENCE

    1. Knowledge or acquiescence by either Party hereto of any non-compliance / breach of any of the terms, representations and / or obligations contained in this Agreement shall not operate as or be deemed to be a waiver of the same. Notwithstanding such knowledge or acquiescence, each Party hereto shall be entitled to exercise his respective rights under this Agreement and to require strict performance by the other Party of its terms, representations and / or obligations herein. No single or partial exercise of any right, power or privilege by any Party hereto shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

  17. BINDING AGREEMENT

    1. This Agreement shall be binding on each of the Parties and their respective heirs, successors-in-title, estate and / or personal representatives.