Newton Eco Technology Sdn Bhd Investment Agreement

THIS AGREEMENT is made

BETWEEN:-

A user hosted on ATA PLUS equity crowdfunding platform ("Site") to offer its shares on the platform (referred to as 'Entrepreneur' on the platform) (hereinafter referred to as the “The Investee”) of the other part.

The Investee (Company No: 1088507-A), is a company incorporated in Malaysia under the Companies Act 2016 with the registered name of Newton Eco Technology Sdn Bhd.

AND

A user hosted on ATA PLUS equity crowdfunding platform ("Site") to invest in return for shares in The Investee on the platform (referred to as 'Investor' on the platform) (hereinafter referred to as the “The Investor”) of the other part.

The Investor (Company No: ), a company incorporated in Malaysia under the Companies Act 2016 and having its business address as per Schedule 1 (hereinafter called the "the Investor") of the second part ;

AND/OR

The Investor (Identity No : ), an individual as described in Schedule 1 (hereinafter called the "the Investor") of the third part;

Hereinafter referred to individually as a 'Party' or collectively as the 'Parties’

WHEREAS :

Ata Plus Sdn Bhd is a registered and licensed electronic facility operator (hereinafter referred to as “the Operator”) that provides a platform for equity crowdfunding services to approved issuers and investors (hereinafter referred to as “the ECF Platform”).
The Investee has engineered a product called “Newton Eco Technology Sdn Bhd Equity” (hereinafter referred to as “the Products”) and through the ECF platform has advertised their company business plan and/or the Products and is desirous to raise funds for its business to achieve the fundraising amount targeted.
The Investor through the ECF Platform is desirous to invest in the Investee for the production of the said Products in return for shares in the Investee. The Parties herein wish to regulate their conducts, relation, duties and/or rights in respect of the aforesaid engagement in accordance with the terms and conditions hereinafter contained in this Agreement.

NOW THIS AGREEMENT WITNESSETH as follows:-

THE INVESTMENT
1. In consideration of the Investee's undertaking to perform the terms of the Agreement, the Investor hereby agrees to invest the sum as specified under Schedule 1 (hereinafter referred to as "the Investment Amount") to be paid in advance by the Investor to the trustee appointed by the Operator. The Investee agrees to accept the Investment subject to and upon the terms and conditions herein appearing and as prescribed by the Operator.
2. The Investor shall pay in full the Investment Amount via the payment methods provided on the ECF Platform by the Operator. The Investment Amount shall be deposited into a trust account held by the Operator’s appointed trustee until the period of fundraising ends.
3. Upon execution of this Agreement, the Parties hereby agree to the terms and conditions of the Partnership Agreement in Annexure herein.
4. Upon a successful crowdfunding campaign by the Investee pursuant to Clause 3.1,.3.2 and 3.4, the Parties hereby agree that:
  1. In the event that the amount of investment made by the Investor is less than Ringgit Malaysia One Million Five Hundred Thousand (RM 1,500,000.00), the Investor agrees that the Investor shall be registered as a Partner (hereinafter referred to as “Partner”) in APC Nine PLT [Registration No. LLP 0017552-LGN], a limited liability partnership registered in Malaysia incorporated as an investment holding vehicle (hereinafter referred to as “LLP”) whereas all the rights and obligations of the Investor as partner in the LLP shall be strictly governed by the Partnership Agreement.
  2. In the event that the amount of investment made by the Investor is equal to or more than Ringgit Malaysia One Million Five Hundred Thousand (RM 1,500,000.00), the Investor agree that the Investor shall be registered as shareholder in the Investee in which the Investee shall transfer the shares and/or cause for the shares to be subscribed (“ECF Shares”) by the Investor proportionate to the amount and/or percentage of the investment made by the Investor from the total investment raised by the Investee.
5. Pursuant to Clause 1.4.1, upon the instruction by the Custodian appointed by the ECF Platform, the Investee shall register the LLP as the shareholder in the Investee in which the Investee shall transfer the shares and/or cause for the shares to be subscribed (“ECF Shares”) by the LLP proportionate to the value of the amount of investment in the LLP from the total investment raised by the Investee.
6. Pursuant to Clause 1.4.1, the Investor agrees to the additional terms and conditions set forth under Schedule 2 of this Agreement.
7. In return for the Investment, the Investor agree that the Investor shall receive either a direct shareholding in the Investee or indirect equity in the Investee through the LLP subject to Clause 1.1.4 above and the amount of shareholding or equity is stipulated in the Schedule 1 herein.
WITHDRAWAL AND/OR CANCELLATION OF INVESTMENT
1. The Investor shall be given six (6) days cooling period beginning from the date of the investment made where within such period, the Investor shall have the rights to withdraw and/or cancel the investment by providing the Operator with a written notification.
2. In the event if there is a material adverse change on the Products or the Investee, the Investor shall be given with a period of fourteen (14) days, from the date which the Investor noticed or being notified by the Operator of such material adverse change, to withdraw and/or cancel the investment.
3. Upon the end of the period as mentioned in Clauses 2.1 and 2.2 above, the Investor shall not be entitled to withdraw and/or cancel the investment made.
4. Notwithstanding the above, the Investee may, in their sole discretion, with or without grounds, refuse to accept and/or revoke their acceptance to the investment made by the Investor when it deems fit and necessary.
PERIOD OF FUNDRAISING
1. The Investee shall endeavor to raise and/or obtain funds in order to achieve the fundraising amount targeted within the maximum period of ninety (90) days from the date of the listing of its business or Products on the ECF Platform ending with the lapse of a total period of ninety six (96) days which includes the fundraising period of ninety (90) days and 6-days cooling period (herein referred to as “Closing Date”).
2. In the event the Investee is able to raise and/or obtain funds up to the fundraising amount targeted prior to the expiry of the period mentioned in Clause 3.1 above, such period of fundraising shall end subject to the confirmation of the Operator.
3. In the event the Investee fails to raise and/or obtain funds up to the fundraising amount targeted within the maximum period as mentioned in Clause 3.1 above, the Investment Amount invested by the Investor shall be returned to the Investor subject to the terms and the conditions prescribed by the Operator.
4. Pursuant to Clause 3.1 and 3.2, in the event the Investee is able to achieve the fundraising amount targeted, the Investee shall undertake, subject to any terms and conditions prescribed by the Operator, execute and deliver all and any necessary agreement and/or instrument and/or document to enforce the transfer and/or subscription of shares in the Investee by the Investor based on the Investment amount invested by the Investor in accordance to Clause 1.1.4 of this Agreement.
5. The Investee may, on their own discretion, request to the Operator to extend the period of fundraising beyond the period as provided in Clause 3.1 above and the Investee shall have no responsibility to notify and/or obtain any approval from the Investor in requesting for such extension from the Operator.
6. In the event if the period of fundraising is extended, such extension shall be notified through the ECF Platform and the Investee shall have no responsibility to notify the Investor on the same, unless the Investee in their own discretion decides to do so at their own expenses.
ACCOUNTS OF THE INVESTEE
1. The Investee shall maintain accurate and complete accounting records.
2. The accounts of the Investee shall be kept in accordance with generally accepted accounting principles applicable in Malaysia and shall be audited annually. Any audit exercise additional to the statutory annual audit exercise shall only be made upon request by any Party, and shall be at the expense of the requesting Party.
3. The financial year of the Investee may be changed by a resolution passed by the Board of Directors, as soon as practicable after the completion of the subscription of the ECF Shares.
SPECIAL COVENANT
1. The Investee acknowledges, confirms and agrees that the investment by the Investor in the Investee in return for shares does not contravene the Moneylender Act 1951 nor the Anti Money Laundering Act 2001.
REPRESENTATIONS AND WARRANTIES
1. The Investee hereby represents and warrants to and undertakes with the Investor as follows:
  1. The Investee validly exists under the laws of Malaysia with full power and authority to carry on its business;
  2. That the terms and conditions of this Agreement constitutes the legal, valid and binding obligations of the Investee in accordance with their respective terms;
  3. That the Investee 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 presently current or pending or threatened which default, litigation, arbitration or administrative proceedings as the case may be, might impair its ability to perform its respective obligations hereunder, or affect the decision of the Investor to proceed with this Agreement or continue to make available the Investment;
  4. No event or omission has occurred which entitles any creditor or creditors of the Investee to declare any of its indebtedness under any investment agreement or credit facility due and payable prior to its specified maturity or to cancel or terminate any investment or other credit facility or to decline to make any advance or further advances thereunder;
  5. That no steps have been taken or are being taken to appoint a receiver, receiver and manager or liquidator to take over or to wind-up the Investee;
  6. No litigation, arbitration or administrative proceedings, before or of any board, tribunal, arbitrator or governmental authority is presently pending or threatened against the Investee or any of its assets and no claim has been secured by or threatened against the Investee;
  7. The liability and obligations of the Investee to the Investor in respect of the indebtedness shall continue to be valid and binding for all purposes whatsoever and that the Investor shall not be prejudiced in any way whatsoever by or notwithstanding any restructuring scheme or arrangement whether now or hereafter between the Investee and any third party or persons in respect of any liability or obligations by the Investee to that third party or persons; and
  8. Where any representation or warranty or any statement contained herein proves to be misleading or incorrect, it shall be deemed to have been made with the consent or convenience of or attributable to the neglect on the part of any director, manager or secretary or other similar officer of the Investee purporting to act in such capacity.
AMENDEMENTS AND SEVERABILITY
1. No provisions of this Agreement may be voided, amended, waived, discharged, absolved or terminated orally nor may any default, breach or omission of any provisions of this Agreement be waived or condoned orally.
2. If at any time during the terms of this Agreement any provision condition term stipulation covenant or undertaking of this instrument is or becomes illegal, void, invalid, prohibited or unenforceable in any respect at the same shall be ineffective to the extent of such illegality, invalidity, prohibition or enforceable without invalidating in any manner whatsoever the remaining provisions hereof or thereof. Notwithstanding the foregoing, the Parties hereto shall thereupon negotiate, in good faith, in order to agree on the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.
TIME
1. Time wherever mentioned in this Agreement shall be of the essence of this Contract.
INDEMNITY
1. The Investee shall at all times hereafter save harmless and keep the Investor indemnified against any and all expenses costs actions proceedings claims demands penalties damages and liabilities which may be brought or made against or incurred by the Investor prior to the date of this Agreement and/or by reason or on account of non-observance of all or any of the stipulations on the part of the Investee contained in this Agreement or otherwise howsoever owing out of or in connection with this Agreement.
COSTS
1. Each Party shall be liable for their own costs incurred for this Agreement and all other necessary expenses.
NOTICE
1. Any notice under this Agreement shall be in writing in the English Language and shall be deemed to be sufficiently served if the same is sent or addressed to any Party by registered post to the address hereinbefore mentioned or to the last known address and shall be deemed to have been received within seven (7) days following the date it was posted.
GOVERNING LAW
1. The terms of this Agreement and the laws of Malaysia from time to time existing, shall, where applicable, exclusively govern the rights and obligations of the Parties, who hereby further agree to submit the jurisdictions of the Courts of Malaysia.
HEADINGS
1. The heading of each of the provisions herein contained are inserted merely for convenience of reference and shall be ignored in the interpretation and construction of any of the provisions herein contained.
SUCCESSORS BOUND
1. This Agreement shall be binding upon successors-in-title of the Investee and on the assigns and successors-in-title of the Investor and persons deriving thereunder.

Schedule 2: Additional Terms

Definition

Board means the board of directors for the time being of the Investee;

ECF Shares means the all the shares issued during this equity crowdfunding fundraising exercise;

Promoters means the existing shareholders of the Investee, immediately prior to this equity crowdfunding fundraising exercise;

Shares means the shares of the Investee, including ordinary shares and preference shares;

Shareholders means the holders of Shares in the capital of the Investee, including the Investors, and the Promoters;

Third Party Buyer(s)means any third party purchaser of Shares in the Company who is not a shareholder of the company at the time the purchaser makes an offer for the purchase;

Issuance of New Shares

Transfer of Shares

RIGHTS OF PRE-EMPTION
1. In the event that the Board resolves to increase the share capital of the Company, each of the Shareholders shall have pre-emptive right, but are not obliged, to subscribe for new Shares in proportion to their shareholding in the Company at the time of such issue of new (“New Shares”).
2. For this purpose, the Board shall issue a written notice to each Shareholder (“Subscription Notice”), specifying details of the number of the New Shares and the issue price (“Issue Price”), and inviting each such Shareholder to state in writing within twenty-one (21) days from the date of the Subscription Notice whether it is willing to subscribe for the whole or any part of its entitlement to the New Shares at the Issue Price (“Offer Period”). The provisions of this Clause shall not apply to shares issued as part of any merger, acquisition, reorganisation or other transaction or series of related transactions as approved by the Board;
3. If there is any unsubscribed New Shares upon expiry of the Offer Period, the balance of the unsubscribed New Shares shall be offered in writing (“Further Subscription Notice ”) to the Shareholders who have accepted the offer to subscribe for New Shares made under Clause 1.2 of Schedule 2 (“Accepting Shareholders”) on a proportionate basis as between the Accepting Shareholders, determined by dividing the number of Shares held by each Accepting Shareholder by the number of Shares held by all Accepting Shareholders (as nearly as circumstances permit), and inviting each such Accepting Shareholder to state in writing within a further seven (7) days from the date of the Further Subscription Notice whether it is willing to subscribe for the whole or any part of its entitlement to the unsubscribed New Shares at the Issue Price (“Further Offer Period”).
4. In the event there is still any New Shares not subscribed by the Accepting Shareholders, the balance of the unsubscribed New Shares may be offered to third parties, provided always that prior to the issuance of and allotment of any New Shares to any person(s) who is not a Party to this Agreement such person(s) shall be required to execute in such form as may be reasonably required by and agreed between the existing Shareholders a deed of ratification and accession under which the said person(s) shall be bound by the obligations and shall be entitled to the benefit of this Agreement as if an original party hereto.
RIGHTS OF FIRST REFUSALS
1. In the event that a Shareholder wishes to sell, transfer or otherwise dispose all or any of the Shares held by him (“Selling Shareholder”), this may only be effected as follows:
  1. the Selling Shareholder shall first offer the Shares for sale (“Sale Shares”) to the other Shareholders via a written notice (“Sale Notice”) stipulating the quantity of Sale Shares available and selling price (“Sale Price”);
  2. the Shareholders shall be entitled to purchase the Sale Shares in proportion to their respective shareholdings in the Investee (“Sale Share Entitlement”) and shall indicate within twenty-one (21) days from the date of the Sale Notice (“Prescribed Period”) their acceptance to purchase the whole or part of their Sale Share Entitlement via written notice (“Acceptance Notice”). In the event that Shareholders do not provide any response, they shall be deemed to reject their Sale Share Entitlement;
  3. in the event that a Shareholder purchases the whole of their Sale Share Entitlement (“Accepting Shareholder(s)”) and if there are any remaining Sale Shares, the Board shall offer any remaining Sale Shares to Accepting Shareholder(s), without limitation on proportion of shareholding; and
  4. any remaining Sale Shares thereafter may then be offered to Third Party Buyer(s) on the same Sale Price as stipulated in the Sale Notice, provided that such Third-Party Buyer(s):
    1. are not in any way a competitor (whether an individual or a corporation) or in conduct of particular activities or of a reputation which is inconsistent and detrimental to the goodwill, reputation or Business of the Investee; and
    2. shall be required prior to becoming a Shareholder, to execute in such form as may be reasonably required by and agreed between the existing Shareholders a deed of ratification and accession under which the said person(s) shall be bound by the obligations and shall be entitled to the benefit of this Agreement as if an original party hereto.
TAG ALONG RIGHTS
1. In the event that the Shareholders wish to sell (“Sellers”), transfer or otherwise dispose all or substantially all their Shares to any Third Party Buyer(s), Clause 2.1 of Schedule 2 shall not apply and such sale, transfer or disposal shall be effected in accordance with the following procedure:
  1. the Third Party Buyer(s) shall make a binding and irrevocable offer (“Tag Along Offer”) in writing to all other Shareholders (“Remaining Shareholders”) to purchase all of the Shares held by the Remaining Shareholders at the material time, on the same terms and conditions of the proposed sale by the Seller (“Tag-Along Right”); and
  2. in the event the Remaining Shareholders wish to exercise their Tag-Along Right, the Remaining Shareholders shall within fourteen (14) Business Days of receipt of the Tag-Along Offer, inform the Third Party Buyer in writing that it intends to exercise its Tag-Along Right. In the event that Remaining Shareholders do not provide any response within the fourteen (14) Business Days, they shall be deemed to have rejected the Tag-Along Offer and the Sellers and any Remaining Shareholders who have exercised their Tag-Along Right shall be entitled to proceed with the transfer to the Third Party Buyer
DRAG ALONG RIGHTS
1. In the event of an acquisition of more than 70% of all Shares in the Investee by any person(s) by means of a merger, share purchase, share exchange, reorganisation or other transaction or series of related transactions, Clause 2 shall not apply, and the Shareholder(s) who agree to such sale, transfer or acquisition as aforesaid (“Sellers”) shall have the right to:
  1. compel all other Shareholder(s) to agree and consent to such sale, transfer or acquisition by the Selling Shareholders; and
  2. compel all other Shareholder(s) to sell their Shares on the same terms and conditions of the proposed sale by the Selling Shareholders
CALL OPTIONS
1. The Promoters of the Investee has the option to purchase from each of the Investor up to 100% of the ECF Shares subscribed by the Investor, in accordance to the following terms:
2. The exercise price should be based on the higher of the followings:
  1. Valuation based on the latest financing round immediately prior to the exercise of the option; or
  2. The following formula :
    
    Exercise Price = RM Y x (1 + (7.0% x Z))
    
    Where:
    Y = price per share in current ECF round
    Z = number of years in full since ECF campaign closing date
3. The Promoters have the right to purchase the ECF Shares from all subsequent holders of the ECF Shares in the event of any share transfer from the Investor.
4. The exercise period commences from the beginning of Year 1 and expired on the end of Year 3, since the date of this crowdfunding campaign is concluded.
5. Any Third-Party Buyer shall be required prior to becoming a Shareholder, to execute in such form as may be reasonably required by and agreed between the existing Shareholders a deed of ratification and accession under which the said person(s) shall be bound by the obligations and shall be entitled to the benefit of this Agreement as if an original par