2. When does this agreement apply?
4. Management Functions
8. Opportunities to acquire additional Securities
10. Obligations of Jelix
13. Limitations of liability
15. Representations and warranties
18. Definitions and interpretation
Investment Management Agreement
This is an agreement between you (you or the Investor) and Jelix Ventures Management Company Pty Ltd ACN 613 582 773 (we, us or Jelix) relating to your investment in a company (an Issuer) through our website located at www.jelix.vc (Platform). It sets out the services that we will provide to you, and the fees that you must pay and other things you must do in exchange for those services.
Each capitalised term not otherwise defined in this agreement has the meaning given to it in clause 18.1 of this agreement.
2. When does this agreement apply?
- Each time you apply to acquire Securities in an Issuer through the Platform for the first time, you will be prompted to agree to this agreement. Jelix will not process your application to acquire such Securities until you have done so.
- This agreement is effective as between you and us in respect of an Issuer once you have confirmed your agreement to it by clicking ‘I agree’. You agree for the purposes of the Electronic Transaction Act 2000 (NSW) and each other relevant electronic transaction legislation to be bound by this agreement.
- After you acquire Securities in an Issuer through the Platform for the first time, you may from time to time have opportunities to acquire additional Securities in the Issuer through the Platform. This agreement applies in respect of all Securities that you acquire in the Issuer through the Platform.
You acknowledge that you have read, have understood and agree to:
4. Management Functions
4.1 Management Functions
Jelix is authorised to perform the following functions:
- use the money provided by you to acquire Securities in an Issuer in accordance with your instructions received through the Platform;
- hold any share certificates evidencing such investments;
- in relation to the Investment Documents pertaining to such investments, act as your representative and give any approval, consent, agreement or waiver and give or receive any notice contemplated by any Investment Document in its sole discretion (subject to clause 5);
- in relation to any right you may have (alone or together with other clients of Jelix) to appoint a director to the board of the Issuer, appoint a person nominated by Jelix in its sole discretion as such director;
- vote any Securities in the Issuer that you acquired through the Platform in its sole discretion; and
- receive any money paid in respect of or distributed on the Securities in the Issuer that you acquired through the Platform, for distribution in accordance with this agreement,
(collectively, the Management Functions).
4.2 Exclusivity of appointment
In respect of the Issuer, you undertake not to:
- appoint any other person to perform any of the Management Functions;
- perform any of the Management Functions yourself.
Notwithstanding clause 4, in respect of any Issuer, Jelix must not without your consent:
- exercise any of your pre-emptive rights;
- sell any of the Securities in an Issuer that you acquired through the Platform, other than any sale that is compulsory under an Investment Document;
- exercise, convert or redeem any of the Securities in an Issuer that you acquire through the Platform, other than any such exercise, conversion or redemption that is compulsory under an Investment Document;
- do anything (or refrain from doing anything) that would cause you to be in breach of any Investment Document.
- appoint Jelix as your sole proxy to attend shareholders’ meetings of any Issuer in which you have acquired Securities through the Platform and to vote such Securities;
- will not yourself attend or vote at any such shareholders’ meetings;
- will take such further actions as Jelix may require in order to give effect to the appointment of Jelix as proxy under this clause.
- Jelix may require you to appoint a nominee of Jelix’s choosing (Nominee) to hold the legal title to any Securities in an Issuer that you acquire through the Platform.
- You authorise Jelix to:
- register the Nominee as the holder of any Securities in an Issuer that you acquire through the Platform; or
- if you have already acquired such Securities, transfer the legal title to any such Securities to the Nominee, and
agree that you will take such further actions as Jelix may require in order to give effect to the appointment of the Nominee under this clause.
- If at any time a Nominee holds any Securities in an Issuer that you acquire through the Platform, it will in that capacity have the benefit of, and be bound by, all the provisions of the Investment Documents which would have applied to you by virtue of or in relation to your holding of Securities in the Issuer had you not transferred legal title to those Securities to the Nominee (Relevant Rights and Obligations). The Relevant Rights and Obligations will so far as possible have application in relation to the Nominee in the same way as they would have applied to you if you still held legal title to those Securities.
8. Opportunities to acquire additional Securities
- The Investment Documents in respect of an Issuer may give you the opportunity to acquire additional Securities in the Issuer, for example when the Issuer raises new capital or when another shareholder wishes to transfer its Securities.
- Jelix will:
- ensure that the Issuer makes any such opportunity available through the Platform as soon as practicable after any such opportunity is made available to other shareholders of the Issuer; and
- notify you by email as soon as practicable after any such opportunity is made available through the Platform.
- The amount of time that any such offer is open will depend on the relevant Investment Documents.
- In respect of each Issuer in which you acquire Securities, Jelix will provide to you such information as the Issuer provides to its shareholders holding the volume of Securities that you (directly or through the Nominee) hold.
- For the avoidance of doubt, Jelix is not required to provide information that it receives by virtue of its appointment as a director to the board of an Issuer or that it receives by virtue of the fact that it performs services similar to the Management Functions for another person.
10. Obligations of Jelix
10.1 General obligations
Jelix must at all times:
- exercise all due care and skill in the performance of the Management Functions;
- act honestly and in your best interests and, if there is any actual or potential conflict between your interests and Jelix’s own interests, give priority to your interests subject to the provisions of this agreement; and
- not make use of any information it acquires in the course of carrying out its duties under this agreement to gain an improper advantage for itself or any other person or to cause detriment to you.
10.2 Acknowledgement by Investor
Notwithstanding clause 10.1, you acknowledge that Jelix performs similar management functions for other clients (including clients that are affiliates of Jelix), and it owes duties to those other clients which are the same as or similar to the duties it owes under this agreement. Where its clients acquire Securities in the same Issuer, Jelix will act in the best interests of the clients as a whole in respect of that Issuer.
11.1 Notification of fees
- Each investment opportunity on the Platform sets out the fees that Jelix will charge in relation to that investment opportunity.
- These will normally consist of:
Type of fee When charged Method of calculation Establishment Fee Each time you acquire Securities in an Issuer through the Platform (other than where you are exercising any rights referred to in clause 8) nvestment opportunity x the amount you pay to acquire the Securities Management Fees Payable annually in advance:
- Each time you acquire Securities in an Issuer through the Platform; and
- At the times referenced in clause 11.2(c)
The percentage notified for the investment opportunity x the amount you pay to acquire the Securities, for each year you hold the Securities and pro-rated for part years Profit Split On the occurrence of a Liquidity Event in relation to an Issuer The percentage of the proceeds applicable to the Securities you acquire (less the amount you paid to acquire the Securities) on the occurrence of a Liquidity Event, as notified for the investment opportunity
11.2 Invoicing and payment
- When you apply to acquire Securities on the Platform, Jelix will send an invoice to you setting out:
- the Establishment Fee for that acquisition (if any); and
- the first instalment of the Management Fees for that acquisition.
- Jelix will not process your application until you have paid the amounts set out in clause 11.2(a).
- Jelix will invoice further instalments of the Management Fees:
- on each anniversary of the acquisition of the Securities to which such Management Fees relate; or
- if you have acquired Securities in one or more Issuers through multiple transactions on the Platform, once per annum which may be on a day that is different to the date specified in clause 11.2(c)(i).
- All amounts are due and payable within 30 days after the date of the invoice.
If you fail to pay any amount owing within 30 days after the date of the invoice, Jelix may issue a notice to you notifying you of the default. If you do not pay the amounts owing within a further 14 days after the date of such notice, Jelix may sell the relevant Securities in respect of which fees are owing and deduct any amounts owing to it and its reasonable costs of sale before transferring the balance of the sale proceeds to you. Jelix is not under any obligation to obtain any particular price for such securities, and any such sale may occur at steeply discounted prices.
11.4 Pro-rating of Management Fees for part years
The Management Fee in respect of an acquisition of Securities will be pro-rated for any part year in which you hold those Securities. Jelix will refund to you any overpayment of Management Fees when such Securities are sold.
11.5 Profit Split
Jelix is also entitled to receive the Profit Split on the occurrence of a Liquidity Event. This amount will be deducted from the proceeds of any Liquidity Event before distributing the balance to you.
12.1 Mutual termination
The parties may terminate this agreement at any time by agreement in writing.
12.2 Termination by the Investor
You may terminate this agreement if Jelix commits a material breach of this agreement and such breach cannot be remedied within 30 days after notice of the breach is given.
12.3 Termination by Jelix Manager
Jelix may terminate this agreement if:
- you fail to pay any amounts owing by you under this agreement by the time required under clause 11.3 (which is in addition to any rights Jelix may have under that clause); or
- you fail to pay any amounts owing by you under this agreement or any other Investment Management Agreement to which you or your related entities and Jelix are a party by the due date more than 3 times.
12.4 Consequences of termination
On termination of this agreement:
- Jelix may (but does not have to) sell any Securities you acquired through the Platform;
- if Jelix does sell your Securities, it will transfer the proceeds of any such sale to you after deducting:
- any fees owing to it under clause 11;
- any loss it has suffered as a result of the actions referred to in clause 12.3; and
- any expenses of such sale;
- if Jelix does not sell your Securities, it will transfer any such Securities to you.
- This clause and clauses 13, 14, 16 and 17 survive the termination of this agreement.
- The termination of this agreement will not affect:
- any accrued rights and obligations of the parties in respect of any breach of this agreement prior to the occurrence of that event; or
- any provision of this agreement which is expressed to come into effect on, or survive, the occurrence of that event.
13. Limitations of liability
- Jelix will not be liable in contract, tort or otherwise to the Investor for any loss suffered in respect of any matter relating to the investments in Issuers through the Platform unless such loss is caused by Jelix’s wilful misconduct, negligence, dishonesty or fraud.
- Without limiting the foregoing, you acknowledge that investments in early stage enterprises are risky investments and that Jelix does not guarantee any return, or any particular return, from an investment.
You may not disclose confidential information about Jelix, an Issuer or their respective businesses, except:
- after getting the written consent of the party to which the information relates;
- to your tax, legal or other professional advisors to the extent that they need that information for purposes of advising you in relation to your investment in the Issuer, but you must ensure that your advisors keep the information confidential in accordance with this agreement; or
- to the extent that it is required by law, regulation, legal process, order of any government agency or the rules of a recognised stock exchange, provided that you must only disclose the minimum amount of information necessary to comply with the requirement.
15. Representations and warranties
You represent and warrant to Jelix:
- if you are a body corporate:
- you are duly incorporated and validly existing under the laws of the place of your incorporation;
- you have full power to execute, deliver and perform your obligations under this agreement without the consent of any other person; and
- the execution, delivery and performance of this agreement has been properly authorised by you;
- if you are a natural person or persons, you are over the age of 18 and not under any legal disability;
- in either the case of a body corporate or a natural person, the execution and performance by you of this agreement do not conflict with or breach or constitute a default under:
- any applicable law;
- your constitution or other constituent documents (if applicable); or
- any document, agreement, obligation or arrangement binding on you;
- if you are the trustee of a trust (Trust):
- the Trust is duly constituted and has not terminated, nor has the date or any event occurred for the vesting of the Trust assets;
- the trust deed relating to the Trust was properly executed and appropriately stamped;
- nothing in the trust deed relating to the Trust affects the representation and warranties made in this agreement or your ability to perform your obligations under this agreement;
- you were validly appointed trustee of the Trust in accordance with the terms of the trust deed relating to the Trust;
- you are the sole trustee of the Trust;
- you have not been removed from the office of trustee nor have you ceased to act or given notice of resignation and no additional trustee has been appointed;
- you are not in default under the terms of the trust deed relating to the Trust and you have no notice of any circumstances which will or are reasonably likely to lead to your removal as trustee of the Trust;
- you have the right to be fully indemnified out of the assets of the Trust in respect of all of your obligations and liabilities under this agreement;
- you have full legal capacity and power under the trust deed relating to the Trust, as trustee of the Trust, to:
- own the Trust assets and carry on the business of the Trust as it is now being conducted;
- enter into this agreement; and
- perform your obligations under this agreement.
- all action has been taken that is necessary or desirable under the trust deed relating to the Trust or at law to:
- authorise you to enter into this agreement and carry out the transactions contemplated by it;
- ensure that this document is legal, valid and binding on you as trustee of the Trust and admissible in evidence against you in that capacity; and
- enable you to properly carry on the business of the Trust.
- this agreement constitutes your legal, valid and binding obligation enforceable in accordance with its terms by appropriate legal remedy;
- there are no actions, claims, proceedings or investigations pending or to the best of your knowledge threatened against you or by you that may have a material adverse effect on your ability to perform its obligations under this agreement or any Investment Document; and
- you are not and have not been the subject of an insolvency or bankruptcy or other similar event.
- Any consideration or amount payable under this deed, including any non-monetary consideration (as reduced in accordance with clause 16(e) if required) (Consideration) is exclusive of GST.
- If GST is or becomes payable on a Supply made under or in connection with this deed, an additional amount (Additional Amount) is payable by the party providing the Consideration for the Supply (Recipient) equal to the amount of GST payable on that Supply as calculated by the party making the Supply (Supplier) in accordance with the GST Law.
- The Additional Amount payable under clause 16(b) is payable at the same time and in the same manner as the Consideration for the Supply but is only payable on receipt of a valid Tax Invoice.
- If for any reason (including, without limitation, the occurrence of an Adjustment Event) the amount of GST payable on a Supply (taking into account any Decreasing or Increasing Adjustments in relation to the Supply) varies from the Additional Amount payable by the Recipient under clause 16(b):
- the Supplier must provide a refund or credit to the Recipient, or the Recipient must pay a further amount to the Supplier, as appropriate;
- the refund, credit or further amount (as the case may be) will be calculated by the Supplier in accordance with the GST Law; and
- the Supplier must notify the Recipient of the refund, credit or further amount within 14 days after becoming aware of the variation to the amount of GST payable. If there is an Adjustment Event in relation to the Supply, the requirement for the Supplier to notify the Recipient will be satisfied by the Supplier issuing to the Recipient an Adjustment Note within 14 days after becoming aware of the occurrence of the Adjustment Event.
- Notwithstanding any other provision in this deed, if an amount payable under or in connection with this deed (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (Amount Incurred), the amount payable must be reduced by the amount of any Input Tax Credit to which that party is entitled in respect of that Amount Incurred.
- Any reference in this clause to an Input Tax Credit to which a party is entitled includes, without limitation, an Input Tax Credit arising from a Creditable Acquisition by that party but to which the Representative Member of the GST Group of which that party is a Member is entitled.
17.1 Choice of law (Governing law)
This agreement is governed by the laws of New South Wales.
17.2 Choice of jurisdiction
Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales including, for the avoidance of doubt, the Federal Court of Australia sitting in New South Wales.
- We will give any notice to you under this agreement or in relation to your registration or your activities on the Platform to you by email to the address you provide to us, or through the Platform.
- You must give any notice to us under this agreement or in relation to your registration or your activities on the Platform to us by email at firstname.lastname@example.org.
- A notice sent by email is taken to have been delivered:
- when the sender receives an automated message confirming delivery; or
- 30 minutes after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered,
whichever happens first, but if the delivery or receipt is on a day which is not a Business Day or is after 5.00 pm (Addressee’s time) it is deemed to be received at 9.00 am on the following Business Day.
- We may assign, subcontract or novate any right or obligation under this agreement to any person.
- Your registration is personal to you, and you may not assign, subcontract or novate any right or obligation under this agreement without our consent.
17.5 Entire agreement
This agreement and the documents referenced in it are the entire agreement between the parties about its subject matter and replace all previous agreements, understandings, representations and warranties about that subject matter.
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of this agreement is not affected.
We may amend this agreement at any time and from time to time. We will notify you of any amendment that has a material adverse effect on any of your rights in accordance with the notice provisions in this agreement. If you do not accept the amendment:
- this agreement terminates;
- Jelix will terminate your registration with the Platform; and
- Jelix may deal with any Securities in an Issuer that you acquired through the Platform in accordance with clause 12.4.
- No waiver of a right or remedy under this agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.
- A single or partial exercise of a right or remedy under this agreement does not prevent a further exercise of that or of any other right or remedy.
- Failure to exercise or delay in exercising a right or remedy under this agreement does not operate as a waiver or prevent further exercise of that or any other right or remedy.
18. Definitions and interpretation
As used in this agreement:
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in Sydney, New South Wales, Australia.
Establishment Fee has the meaning given in clause 11.1.
Investment Documents means any documents that a person acquiring Securities in an Issuer must sign or will otherwise be bound by in relation to the acquisition or holding of such Securities, including:
- subscription documents;
- shareholders’ agreement; and
- the Issuer’s constitution.
Issuer has the meaning given in clause 1.
Liquidity Event means:
- if there is a definition of Liquidity Event (or similar) in the Investment Documents – that event; and
- if there is not a definition of Liquidity Event (or similar) in the Investment Documents – any one of the following events (whether occurring singly or in a series of related events):
- the completion of a reorganisation, acquisition, disposal or other transaction by the Issuer, the consideration for which is satisfied by the issue of liquid Securities or by cash, where the business assets, company or other entity the subject of that transaction are valued by the board of the Issuer at 50% or more of the value of the Issuer immediately prior to the transaction, as a result of which 50% or more of the voting power in the Issuer is held by persons different to that immediately prior to the transaction;
- a sale of all or substantially all of the Securities of the Issuer to a bona fide third party;
- a Trade Sale, or the exclusive licence or other disposal to a bona fide third party in a major international market of the Issuer’s material intellectual property; and
- the passing of a resolution of the Issuer’s shareholders to approve the distribution and / or payment to the Company’s shareholders of the proceeds of the sale or licence (whether in a winding up, by return of capital, share buy-back, dividend or otherwise),
a final determination is made of the amount that will be paid to the Issuer’s members.
Management Fee has the meaning given in clause 11.1.
Nominee has the meaning given in clause 6.
Platform has the meaning given in clause 1.
Profit Split has the meaning given in clause 11.1.
Securities means any equity securities in an Issuer or any options, warrants, notes, agreements for future equity or other instruments convertible into or exchangeable for equity securities in an Issuer.
Trade Sale means a sale to a bona fide third party purchaser of the whole or a substantial part of the business of the Issuer, all of the main operating subsidiaries of the Issuer or all or substantially all of the assets of the Issuer and its subsidiaries.
In this agreement, the following rules of interpretation apply unless the contrary intention appears:
- headings are for convenience only and do not affect the interpretation of this agreement;
- the singular includes the plural and vice versa;
- words that are gender neutral or gender specific include each gender;
- where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
- the words ‘such as’, ‘including’, ‘particularly’ and similar expressions are not words of limitation;
- a reference to:
- a person includes a natural person, partnership, joint venture, government agency, association, corporation, trust or other body corporate;
- a thing (including but not limited to a chose in action or other right) includes a part of that thing;
- a party includes its agents, successors and permitted assigns;
- a document includes all amendments or supplements to that document;
- a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to this agreement;
- this agreement includes all schedules and attachments to it;
- a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
- a statute includes any regulation, ordinance, by-law or other subordinate legislation under it;
- an agreement other than this agreement includes an undertaking, or legally enforceable arrangement or understanding whether or not in writing; and
- a monetary amount is in Australian dollars and all amounts payable under or in connection with this agreement are payable in Australian dollars;
- an agreement on the part of two or more persons binds them severally;
- no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this agreement or any part of it;
- when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
- in determining the time of day where relevant to this agreement, the relevant time of day is:
- for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
- for any other purpose under this agreement, the time of day in the place where the party required to perform an obligation is located;
- a day is the period of time commencing at midnight and ending immediately before the next midnight is to occur; and
- if a period of time is calculated from a particular day, act or event (such as the giving of a notice), unless otherwise stated in this agreement, it is to be calculated exclusive of that day, or the day of that act or event.