Dated of 2020
LEET CAPITAL SDN BHD
(Company No. 1341808D)
(INSERT NAME OF ISSUER)
(Company No. ●)
(INSERT NAME OF PROMOTER)
(NRIC No. ●)
FOR THE ENGAGEMENT OF LEET CAPITAL SDN BHD FOR THE FUNDRAISING EXERCISE ON WWW.LEET.CAPITAL
THIS ISSUER AGREEMENT (“Agreement”) is made on the day of 2018
1. LEET CAPITAL SDN BHD (Company No. 1341808D), a company incorporated in and existing under the laws of Malaysia and having its business address at Leet Capital Sdn Bhd, Found8 KL Sentral, No 5, East Wing, Level, 3, Jalan Stesen Sentral, Kuala Lumpur Sentral, 50470 Kuala Lumpur (“ECF Operator”);
2. [Insert name of Issuer] [Company No. ] a company incorporated in and existing under the laws of Malaysia with its registered address at [Registered Address] and having its business address at [Business Address] (“the Issuer”);
3. [Insert name of Promoter] [NRIC No. ] having his address at [Address] (“the Promoter”).
(ECF Operator, the Issuer and the Promoter are hereinafter collectively referred to as “Parties” and “Party” refers to any one (1) of them, as the context may require.)
A. ECF Operator is the operator of the Equity Crowdfunding Platform licensed by the Securities Commission under Section 34 of the Capital Markets and Services Act 2007 and operates the website domain www.leet.capital (“Platform”). The Platform seeks to assist private companies in Malaysia to raise funds by way of offering shares to the public.
B. The Issuer through the Promoter has made an application to ECF Operator to raise funds through the Platform and ECF Operator has approved the application of the Issuer to be hosted on the Platform subject to the terms and conditions herein.
NOW IT IS AGREED AS FOLLOWS :
In this Agreement, unless the context otherwise requires, the following expressions shall bear the following meanings:
means the days on which banks are opened for business in Kuala Lumpur Malaysia and excludes any public holidays, Saturdays and Sundays;
has the meaning specified in Clause 2.2;
has the meaning specified in Clause 2.3;
has the meaning specified in 8.2.1(ii);
the date for the completion of the allotment and issue by the Issuer and subscription by the Investors of the Offer Shares and is as defined in Clause 8.2.2;
Completion of Conditions Precedent
has the meaning specified in Clause 8.2.1;
has the meaning specified in Clause 8.2.1;
has the meaning specified in Clause 12.4;
refers to any individual director of the Issuer;
has the meaning specified in Clause 9.1;
means the date of this Agreement;
has the meaning specified in Clause 6.1;
means the investor who has successfully registered as an investor on the Platform;
has the meaning specified in Clause 8.1;
“Minimum Fundraising Amount”
refers to the minimum campaign fundraising amount raised by the Issuer pursuant to the term sheet, engagement or otherwise agreed between the Issuer and the Platform;
shares being offered by the Issuer to the Investor registered with the Platform;
means the equity crowdfunding platform operated by ECF Operator under the website domain www.leet.capital;
refers to the founder(s) of the Issuer, or key management of the Issuer, as the case may be;
and the expression “Public Authority” shall refer to any of them;
refers to the Securities Commission of Malaysia being the regulatory authority for the Platform and ECF Operator;
means the business processes, step-by-step process, rules, procedures, diagram, manual, work flow and / or guidelines as may be contained in the manual, handbook or any other documents that explains how the Platform operates and how ECF Operator operates the Platform, as may be updated, modified and revised from time to time;
means the campaign undertaken by the Issuer on the Platform where the targeted amount sought to be raised by the Issuer is met;
has the meaning specified in Clause 7;
means the period of eighteen (18) months commencing from the Effective Date;
has the meaning specified in Clause 8.1; and
means the relevant covenants, undertakings, representations and warranties given by the Issuer and/or the Promoter to ECF Operator in this Agreement, including but not limited to those set out in Clause 9.
In this Agreement, unless the context otherwise requires :
(a) recitals, headings and underlinings are for convenience only and do not affect the interpretation of this Agreement;
(b) words importing the singular include the plural and vice versa and words importing a gender include any gender;
(c) an expression importing a natural person includes any corporation or other body corporate, partnership, association, public authority, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking;
(d) a reference to a party to a document includes that party’s successors and permitted assigns;
(e) any part of speech or grammatical form of a word or phrase defined in this Agreement has a corresponding meaning;
(f) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted and shall include all by-laws, instruments, orders rules and regulation made thereunder;
(g) any reference to a date or time is a reference to that date or time in Malaysia;
(h) words denoting an obligation on a party to do an act, matter or thing includes an obligation to procure that it be done or words placing a party under a restriction include an obligation not to permit an infringement of the restriction;
(i) the words “hereto”, “herein”, “hereinafter”, hereinbefore”, “hereof”, “hereunder”, and other words of similar import shall refer to this Agreement as a whole and not to any particular provision;
(j) “including” and similar expressions are not and must not be read or treated as words of limitation;
(k) a period of days from the occurrence of an event or the performance of any act or thing shall be deemed to include the day on which the event happens or the act or thing is done or to be done (and shall be computed from the day immediately following such event or act or thing), and if the last day of such period is not a Business Day, then the period shall include the next following day which is a Business Day;
(l) references to Recitals, Clauses and Schedules are to recitals and clauses of and schedules to this Agreement and the Recital an Schedules shall be taken, read and construed as essential parts of this Agreement;
(m) references to this “Agreement” shall mean this Agreement as may be amended from time to time; and
(n) no rule for the construction or interpretation of contracts shall apply to the disadvantage of a party for the reason that the party was responsible for the preparation of this Agreement or any part of it.
(a) approach, interact or communicate with any other equity crowdfunding operators as licensed by the Securities Commission under Section 34 of the Capital Markets and Services Act 2007 from time to time, for the prospect of being hosted on their platforms and this is notwithstanding that such other equity crowdfunding operators makes the first attempt to communicate or interact with the Issuer; or
(b) carry out fund raising exercise for other projects that are being developed or to be offered by the Issuer (whether or not on its own or with collaboration, partnership or venture with other parties, or whether such collaboration, partnership or venture is informal or formal, incorporated or unincorporated) with any other equity crowdfunding operators as licensed by the Securities Commission.
The Issuer agrees that ECF Operator shall be entitled at its absolute discretion to cancel, withdraw, restrict, suspend, vary or modify the use, and/or features of its services in relation to the Campaign (“Campaign Services”) (whether in whole or in part) and to vary or modify this Agreement or such other terms and conditions (whether in whole or in part) at any time from time to time without notice and without giving any reason therefor and ECF Operator shall not be liable to the Issuer for any loss or damage as a result thereof.
The Issuer acknowledges and agrees that, as required by the Securities Commission, the funds raised from investor(s) during the Campaign Period (“Investors’ Funds”) shall be held in a trust account established and maintained by ECF Operator with a trustee company incorporated under the Trustee Act 1949 (“Trust Account”).
The Conditions Precedent shall be fulfilled within fourteen (14) calendar days after the expiry of the Campaign Period and may be extended at the absolute discretion of ECF Operator. ECF Operator shall issue a written confirmation to the Issuer within three (3) calendar days upon fulfilment of the Conditions Precedent (“Completion of Conditions Precedent”).
(i) where applicable, amendment to the Constitution of the Issuer to facilitate the issue of the Offer Shares to the Investors; and
(ii) the allotment and issue of the Offer Shares upon the terms of this Agreement and the SOP,
each of which must be approved by the shareholders of the Issuer by the passing of a members’ resolution in a form and content acceptable to ECF Operator.
(iii) the registration of each and every Investor in the register of members of the Issuer as the holder of the Offer Shares on the terms and conditions of this Agreement and the SOP; and
(iv) the affixing of the common seal unto the share certificates representing the Offer Shares and the issue of the corresponding share certificate(s) to each Investor.
(i) the share certificate representing the corresponding Offer Shares; and
The Issuer hereby agree and acknowledges that it is the responsibility of the Issuer to ensure compliance of the provisions under this Agreement. The ECF Operator, may, at its sole and absolute discretion facilitate the Issuer with third party/ service providers in view of assisting the Issuer in completing the transaction.
(i) any of the documents required to be delivered to ECF Operator are not forthcoming for any reason;
(ii) any information, data and/or documents provided to ECF Operator is found to be untrue, inaccurate, false or misleading or from which there is an omission, such that if such omission was made known to ECF Operator, ECF Operator would not have agreed to host the Issuer on the platform and entered into this Agreement;
(iii) the Issuer and/ or the Promoter breach any of the Warranties or any provisions of this Agreement;
(iv) any of the Warranties given by the Issuer and/or the Promoter in this Agreement is found to be untrue, accurate, false or misleading;
(v) if the Issuer has bank borrowings or facilities made available by the financial institutions or other lending company as licensed under the Malaysian laws, the Issuer defaulting in its repayment obligations of such bank borrowing or failing to service the facilities, or such bank borrowing or facilities are terminated or recalled for any reason whatsoever;
(vi) any Public Authority commences any litigation, arbitration or prosecution proceedings against the Issuer or the Promoter; or
(vii) the ECF Operator determines that there is an occurrence of any “material adverse change” as imposed by the Securities Commission’s Guidelines on Recognised Markets therein;
then, ECF Operator shall be entitled, at its absolute and final discretion, to elect any of the following:
(i) to effect completion of the investment and subscription of the Offer Shares (without prejudice to its rights and remedies against the Issuer and / or Promoter, including the right to claim damages) so far as practicable having regard to the defaults which have occurred; or
(ii) to fix a new day for completion (not being more than 14 calendar days after the original Completion Date), in which case the foregoing provisions of this Clause shall apply to completion as so deferred; or
(iii) to rescind this Agreement without liability on its part, in which event the Issuer shall pay the costs and expenses agreed to be borne by the Issuer pursuant to Clause 17 which amount shall be paid within 15 Business Days after the notice of rescission from ECF Operator, and thereafter, this Agreement shall terminate and be null and void and of no further effect whatsoever and none of the Parties shall have any claims against the other hereunder for costs, damages, compensation or otherwise, save in respect of any antecedent breach of the terms herein.
whichever is lower, being the termination penalty which will be invoiced by the ECF Operator to the Issuer.
The Issuer herein grants to ECF Operator a license to use the Issuer’s logos and trademarks (the “Brands”) for the purposes of this Agreement, including as outlined in Clause 4.2 above.
The Issuer may at any time make specific requests to ECF Operator about ECF Operator’s performance of the Issuer services but has no right to, and shall not, control the manner, or determine any aspect, of ECF Operator’s performance of the Campaign Services. ECF Operator may, but is not necessarily obliged to, accommodate these requests. ECF Operator shall, in consultation with the Issuer, determine the method, details, and means of performing the Campaign Services to be carried out for the Issuer. In the course of performing the Campaign Services, ECF Operator shall at all times remain an independent contractor and not an employee, agent, joint venture, or partner of the Issuer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Issuer and ECF Operator, and the Issuer therefore shall not take any action or provide ECF Operator with any benefits or commitments inconsistent with ECF Operator’s status as an independent contractor.
12.1.1 strictly keep and maintain confidentiality on all Confidential Information (as defined below);
12.1.2 not disclose or cause to be disclosed any Confidential Information to any third party without ECF Operator’ prior written consent; and
12.1.3 where applicable, not make copies of documents or other materials containing the Confidential Information without ECF Operator’ prior written consent, and only to the minimum extent necessary for its performance hereunder.
12.4.1 information in relation to ECF Operator or any of its affairs, business or systems or methods of operating the Platform including, without limitation, the systems, information relating to its services, methods, systems, strategies or technical operations;
12.4.2 information confidential or secret or proprietary to ECF Operator or which otherwise gives ECF Operator an advantage over its competitors;
12.4.3 information otherwise designated as confidential or secret by ECF Operator;
12.4.4 the terms and conditions of this Agreement, the relationship between the Parties, and any negotiations or discussion between the Parties;
12.4.5 trade secrets; and
12.4.6 information imparted in confidence by ECF Operator to the Issuer regardless of whether such information is relevant in the performance of the obligations of the Parties under this Agreement.
The Issuer shall indemnify ECF Operator, its employees, servants and third party service providers from and against any and all actions, proceedings, liabilities, claims, demands, losses, damages, charges, costs (including legal costs of defending or settling any action, claim or demand) and expenses which ECF Operator, its employees, servants or third party service providers may at any time and from time to time, sustain, incur or suffer by reason of or arising out of or in the course of:
The ECF Operator’s Marketing Materials or any documentation that ECF Operator prepares is provided without any representations or any kind of warranties whatsoever (whether express or implied by law). ECF Operator expressly disclaims to the fullest extent permitted by law all express, implied and statutory warranties, including without limitation, the warranties as to functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Neither ECF Operator, nor any of its directors, officers, employees, members, representatives, affiliates, agents, parent(s), subsidiaries, successors and assigns shall have any liability whatsoever for any expenses, losses or damages arising out of or in connection with, whether directly or indirectly, the functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose (or lack thereof) of and the use of or reliance on all or any part of ECF Operator’s Marketing Materials or any documentation that ECF Operator prepares.
This Agreement shall be terminated upon the earlier of:
16.1.1 at the expiry of the Term; or
16.1.2 the completion of the Campaign on ECF Operator’s platform.
If the Issuer:
16.3.1 commits any breach of its obligations under this Agreement or if such breach is remediable, fails to remedy such breach within three (3) Business Days from the service of a written notice by ECF Operator complaining of such breach;
16.3.2 provides any misleading, inaccurate, or false statement, information, data and/or documents or from which there is a an omission;
16.3.3 becomes insolvent or unable to pay its debts (if applicable); or
16.3.4 goes into liquidation or is wound up either compulsorily or voluntarily (except in the case of a voluntary liquidation for the purpose of reconstruction or amalgamation),
then and in any such event, ECF Operator shall be entitled to terminate this Agreement immediately by written notice to the Issuer and the termination is effective from the date of such written notice.
17.1.2 the stamp duty payable on this Agreement; and
17.1.3 the fees, cost and charges imposed by the Company Secretary.
For avoidance of doubt, the cost described in Clause 17.1 (a) and (b) above shall be borne and payable by the Issuer even if the Campaign is not successful.
Nothing contained in this Agreement shall constitute or be deemed to constitute or create any association, partnership, joint venture, or the relationship of principal and agent or master and servant, or employer and employee between the Parties hereto or any of their related corporations, affiliates, officers, employees, agents or sub-contractors, or to provide the Issuer with the right, power or authority, whether express or implied, to bind or commit ECF Operator or create any duty or obligation on behalf of ECF Operator.
This Agreement sets out the entire agreement and understanding of the Parties in respect of the subject matter of this Agreement and supersedes and cancels in all respects all previous agreements, if any, made between the Parties in respect of the subject matter herein.
The expiration or termination of this Agreement however arising shall not operate to affect such of the provisions of this Agreement as are expressed to operate or have effect after then and shall be without prejudice to any accrued rights or remedies of the Parties.
In the event of any dispute arising from this Agreement, the Parties hereby agree to submit to the exclusive jurisdiction of the courts in Malaysia.
The laws of Malaysia shall govern the validity construction and performance of this Agreement.
Any notice to be given by a Party under this Agreement must be in writing and must be given by delivery at or by sending by post or other faster postal service, facsimile transmission, e-mail or other means of telecommunication in permanent written form (provided the addressee has facilities for receiving such transmissions) to the last known postal address, e-mail address or relevant telecommunications number of the other Party. Where notice is given by sending in a prescribed manner it shall be deemed to have been received when in the ordinary course of the means of transmission it would be received by the addressee. To prove the giving of a notice it shall be sufficient to show it was despatched. A notice shall have effect as soon as the actual or deemed receipt of the notice by the addressee.
The addresses, telephone facsimile numbers and e-mail addresses of ECF Operator and the Issuer are set out in the Schedule.
18.7.1 If one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law or decision, the validity, legality or enforceability of the remaining provisions contained herein shall not be affected or impaired in any way.
18.7.2 Each Party shall, in any such event, execute such additional documents as the other party may reasonably request in order to give valid, legal and enforceable effect to any provision which is determined to be invalid, illegal or unenforceable.
In the event of any inconsistency between the provisions of this Agreement, the Terms & Conditions, Privacy Notice, Warning Statement, and Disclosure Statement as appearing on the website (“Platform Agreements”), the (relevant part) of the Platform Agreements shall take priority and prevail over provisions of this Agreement.
No amendment, variation, revocation, cancellation, substitution or waiver of or addition or supplement to any of the provisions of this Agreement shall be effective unless it is in writing and signed by all Parties.
Any time, date or period mentioned in any provision of this Agreement may be extended by mutual agreement between the Parties, but as regards any time, date or period originally fixed and not extended or any time, date or period so extended as previously mentioned time is of the essence and shall be strictly adhered to and complied with.
This Agreement may be entered into in any number of counterparts and by the Parties on separate counterparts, each of which when so signed and delivered, shall be deemed to an original and all of which shall constitute one (1) and the same instrument.
By investing in equity crowdfunding, you will be investing into early-stage companies, which carries a huge risk as they may or may not do well.
As an investor, you may lose all of your investment and may not be able to sell any investment you purchase due to illiquidity.
You are advised to spread your risks by diversifying your portfolio across different asset classes. We strongly advise that you seek independent advice and conduct your own due diligence and research before you decide to invest.
For more information, read our Warning Statement.