Print Investor Agreement
  1. This Investor Agreement is prepared as at 15 November 2021. When agreed to by you it constitutes a binding contract between Swarmer Pty Ltd (ACN 609 908 009) and you as investor.
  2. In this Agreement we describe you as the Investor (or sometimes as you) as you have indicated an intention to consider subscribing for shares in one or more crowd-sourced funding companies (each a Company) through our website at swarmer.com.au (the Website).
  3. Swarmer Pty Ltd is described in this Agreement as Swarmer and sometimes as we or us.
  4. Any offer of shares by a Company to potential investors (such as you) (Investors) is described in this Agreement as a crowd-sourced funding offer (CSF Offer).
  5. We reserve the right to vary the Terms and Conditions contained in this Investor Agreement from time to time. If we do that, we will email you and other Investors indicating the changed terms. Any use of the Website by you and any acceptance of any CSF Offer after that time shall operate to constitute your agreement to and acceptance of the changed Investor Agreement.
  6. If you breach this Agreement or our Terms and Conditions of use, and that results in Swarmer suffering damage or loss or incurring expense, then you shall be liable to reimburse and indemnify us for the damage, loss or expense so suffered or incurred.


    7. Purpose of this Agreement

  7. We have created this Agreement in part to meet legal obligations imposed on us under relevant legislation and under the terms and conditions of the Australian Financial Services licence (AFS licence) which we have received from the Australian Securities and Investments Commission (ASIC) and also to inform you of various processes and disclosures relating to Companies, Investors and any CSF Offer.
  8. The information in this Agreement is not exhaustive and there are other sources of information relating to these processes which can be found in other documents on the Website. Reference is particularly made to the following:
    1. Our privacy policy
    2. Our Financial Services Guide
    3. Our terms and conditions
  9. Other useful information is provided on our FAQ webpage.


    10. How people become Investors

  10. Only individuals and companies may become Investors. In paragraph 16 below, we describe the process for companies to be Investors. Individual Investors have to be at least 18 years old.
  11. Initially, Investors need to be accepted first for what we call membership. Only individuals become members. Being a member does not create any obligations to invest. It simply means that Swarmer has accepted you as able to browse and review CSF Offers in Companies through the medium of our Website, and if in fact you do wish to make an investment then further information is required of you, as set out in paragraph 14 below.
  12. To become a member you need to click on SIGN UP and give your name, country and email address and select a password. In so doing you also need to agree to accept our terms and conditions, privacy policy and Financial Services Guide. Once we have verified your email address, you will then be treated by us as a member and you will be able to have full access to the Website. That means that you will be able to review full details of any current CSF Offers which have not yet closed or been withdrawn. Some Companies may require potential Investors to agree to confidentiality restrictions before they are able to review the CSF Offer materials.
  13. Before an Investor can make his or her first investment through the Website, you will need to give us certain personal information about yourself. We need this information in part to verify your identity as part of our “know-your-customer” checks, and in part to verify your eligibility (e.g. your age) and also so that we can comply with any Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF) obligations to which we are subject.
  14. The required information which we are required to obtain from you during the registration process includes the following:
    1. your full name;
    2. date of birth;
    3. contact number;
    4. your passport or driver’s licence details; and
    5. details of your residential address (which need not be in Australia).
  15. Swarmer also reserves the right to seek and obtain further information from you. This may include information about the number of transactions you have entered into pursuant to the Website and about the Companies you may have invested in.


    16. How companies become Investors

  16. Before a company may become an Investor an individual who is an officer or director of the company or who is a shareholder holding at least 25% of the shares in the company must register as a member as set out in paragraphs 10 to 12 above, and the individual will need to supply the information referred to in paragraphs 14 and 15.
  17. Before a company is able to make an investment as an Investor the individual member must signify at the time of the investment, by ticking a box on the Website, to confirm that the company directors have given them authority to make investments on the company’s behalf.


    18. Investment

  18. Before being able to make an investment, we need to obtain from you details of your bank account (or, as appropriate, details of the corporate Investor’s bank account). For Australian resident Investors that account must be an account with a bank at a branch in Australia and needs to be either in your name or in joint names, one of whom is yourself, or in the case of a company in the name of the company.
  19. We reserve the right to ask you to tell us from time to time where any monies you propose to invest are sourced from. We will do this only in order to meet our AML obligations.
  20. An Investor does not need to be resident in Australia to be eligible to invest in Companies through the Website. In this Investor Agreement people who are not resident in Australia are described as Foreign Investors. Foreign Investors themselves are wholly responsible for complying with all laws in their country of residence or from which they may access the Website and Swarmer accepts no responsibility for any breach of such laws. However, persons who are United States persons or who are resident in the United States of America are not eligible to be Investors.
  21. Most overseas countries have securities laws which regulate the offering of financial products such as shares to the public, and no CSF Offer made through the Website may be accepted by any Foreign Investor if to do so constitutes a breach of any such law. Any CSF Offer or any subscription for shares as a result of such CSF Offer which involves a breach of the laws of a country outside Australia will be void and of no effect in relation to that country and persons subject to its laws.
  22. All Investors, by accessing the Website outside Australia or who live outside Australia, shall be deemed to represent to Swarmer and its directors, on each occasion the Website is accessed, a CSF Offer is accepted or any moneys are invested, that they are doing so in compliance with all applicable laws, and you shall be liable in damages accordingly for any costs or losses suffered by Swarmer or any of its directors as a result of any such non-compliance or alleged non-compliance. Directors may enforce these obligations directly against Foreign Investors as permitted by Australian law.
  23. Investors, whether Foreign Investors or otherwise, are strongly encouraged to take professional advice as to their rights and obligations in relation to any CSF Offer and in relation to any country where they may be resident or from which the Website may be accessed.
  24. By agreeing to the terms of this Investor Agreement, you are agreeing to notify us should any of the details which you have provided to us have changed. This is particularly important for any change in email address, as email is the principal medium of communication from Swarmer to Investors. You also agree that we can disclose your personal details to any Company in which you have invested or agreed to invest through our Website. As set out in our Privacy Policy, we may from time to time need to disclose personal information about you to government agencies, including potentially ASIC.
  25. We are entitled to refuse or cancel your membership at any time and without giving any reason for that. However, we would be likely to do so only where there is a matter over which we are concerned. Matters of concern could include the following:
    1. where there is doubt that you are aged 18 years or older or about your identity or place of residence;
    2. where information supplied by you to us may not be correct or has not been able to be verified; or
    3. AML concerns.


    26. Charges payable by Investors

  26. Investors do not need to pay any fees or charges to Swarmer or in relation to any Offer or investment. Swarmer however reserves the right to introduce fees and charges payable by Investors in future, but if it does so the obligation to pay the fees and charges will not be effective until a revised Financial Services Guide is posted on the Website.


    27. How Companies may raise capital through the Website

  27. We will only allow companies which we consider are appropriate to make CSF Offers to Investors. Our decision will be based on various background checks we make on the key people involved with the relevant Company and of the Company itself, but also on the basis of a brief internal screening (which we will not disclose to any potential or actual Investor) about the Company’s viability and prospects.
  28. It is fundamental that we do not give any warranty, promise or even indication about the success or otherwise of Companies either in their ability to raise capital through our Website or as to their future prospects once they have received capital.
  29. As part of the initial screening process, we will make certain investigations about the key individuals associated with a Company (being the directors, the persons identified as officers, senior managers from the details provided by the company (e.g. chief executives, and chief financial or operating officers) and any individual shareholders holding 25% or more of the shares in the Company).
  30. The investigations we will carry out on individuals will include the following:
    1. checking with police criminal records if we are able to do so;
    2. checking on a number of registers in relation to any evidence of insolvency matters and the register of persons disqualified as directors or managers;
    3. internet search engine searches relating to the individuals in order to seek any information relating to bankruptcies, insolvencies, litigation or disputes.
  31. The investigations we will do on Companies will include the following:
    1. searches on the Company to check on the corporate history of the Company (e.g. to see whether there have been any receiverships or other insolvency or criminal matters noted); confirm details of directors, officers, senior managers, shareholders and registered office;
    2. searches on the Department of Foreign Affairs and Trade and internet searches to determine whether any sanctions relate to the CSF Company. Internet searches are conducted through general internet search engines.
  32. If we identify any discrepancies or concerns when undergoing these investigations, we will raise them with the applicant Company for explanation/clarification. If we are not satisfied with explanations then we will inform the Company that it may not use the Website to make CSF Offers. If we are satisfied with the explanations in our sole discretion (for example, because they were sufficiently historic, where matters have been remedied or where the concerning information was erroneous) then we may permit the Company to proceed to make CSF Offers. Any decision to allow a Company to make CSF Offers following discovery of any information of concern as mentioned above will be made only by the Licence & Compliance Committee of Swarmer.
  33. Investors need to be aware that the searches and investigations we carry out may be incomplete. Government records and those of other agencies are not always up to date and occasionally are missing key pieces of information.


    34. No ongoing monitoring

  34. Investors need to know that Swarmer will not seek to verify the continuing accuracy of information provided by Companies or which we learn about Companies and key individuals, either before or during the making of CSF Offers or after subscription of capital from Investors. However, if we learn of any matters of concern prior to the time of subscription for shares by Investors, then we will take such steps (potentially returning any subscribed capital to Investors or withdrawing the CSF Offer) as we consider appropriate in all the circumstances.


    35. Limited role of Swarmer in CSF Offer process

  35. It is important to note that all information relating to the CSF Offer (Offer Materials) is provided by the Company and not by Swarmer. Swarmer does not warrant the accuracy or completeness of any of the Offer Materials and gives no warranty to Investors. Investors need to make their own decisions as to whether or not they wish to invest and of the prospects of achieving a return if they do so. Swarmer will accept no liability whatsoever in that regard except to the extent imposed by law.
  36. Companies who we allow to make CSF Offers through the Website must agree in writing with us to update any relevant information which will cease to be accurate and complete at any stage during the offer period. We cannot however monitor that, as we will generally not be in a position to know whether information is no longer current or accurate.


    37. The process for making investments

  37. When a Company is ready to make a CSF Offer then Swarmer will arrange for all of the Offer Materials to be uploaded to the Website. All members will be able to browse and review the Offer Materials.
  38. There will also be a forum on the Website whereby potential Investors may ask questions of the Company and where they may make comments regarding the CSF Offer or the Company. All questions, comments and responses are visible to all members. Only comments or questions relevant to the CSF Offer may be posted.
  39. Offers for shares will be current only for a limited period (called the Offer Period). Every CSF Offer will have an expiry date and time and will lapse when that time is reached, if not closed earlier. Reasons why the Offer Period may terminate earlier than the scheduled expiry time include the following:
    1. the Company has reached its maximum target level of investment;
    2. the Company has reached a minimum level of investment as set out in the CSF Offer and decided to close the Offer;
    3. for any other reason. Companies are entitled to withdraw their CSF Offer at any time and Swarmer may require a Company to withdraw a CSF Offer where Swarmer becomes aware of matters adverse to the interests of the potential Investors or the Company.
  40. Swarmer may, with the agreement of a Company, also agree to extend the Offer Period from time to time.


    41. Subscription agreement

  41. Included within the Offer Materials will be a contract between the Company and Investors and potentially other relevant parties (e.g. existing shareholders or key managers/executives). In this Agreement we call that contract a Subscription Agreement, although it may have a different name (such as an investment agreement). Investors who agree to subscribe for shares pursuant to a CSF Offer must become party to the Subscription Agreement, and that is effected by the Investor entering his or her initials on the Website as a digital signature and confirming agreement to be bound by the terms of the Subscription Agreement.
  42. The Subscription Agreement will include a number of matters of importance to your investment and to the Company, and may include the following:
    1. a commitment by you to invest the agreed amount in the Company in exchange for the issuance of shares to you;
    2. various undertakings to which the Company is subject;
    3. references to the constitution of the Company. It is likely that the constitution will need to alter in anticipation of, or as a result of, the investments in the Company.
  43. It is a basic point that the Subscription Agreement is a very important document and it is legally binding on Investors once they agree to be bound by its terms as noted above.


    44. CSF Offer document

  44. Included in the Offer materials will be the Crowd-Sourced Funding Offer document (CSF Offer document). The CSF Offer document will provide information about the Company, Information about the CSF Offer and information about investor rights.
  45. The rights and obligations applicable to any shares you may subscribe for in a Company will be described in the CSF Offer document. Those rights will include the following:
    1. any voting rights;
    2. statements about who the directors of the Company are and will be, and whether shareholders have rights to appoint or remove directors;
    3. information regarding general meetings and notices of the Company
    4. any rights to receive dividends or other distributions from the Company; and
    5. any rights to return on capital on liquidation of the Company.


    46. Paying for your shares

  46. When an Investor signifies on the Website their commitment to invest in a Company they become obliged to pay the subscription moneys for the shares in the relevant Company within one calendar day for direct debit. Where a direct debit authority has been provided as referred to below, Swarmer will use that authority to access the moneys on the first calendar day. By signifying your agreement to the terms of this Agreement you are giving your consent to Swarmer using the direct debit authority as specified in the previous sentence. Investors, who have not provided a direct debit consent, will need to make their own arrangements to ensure the subscription moneys are paid within five calendar days.
  47. The subscription moneys are to be paid to, and will be held by Swarmer in, a separate trust account with a registered bank operating in Australia (the Trust Account). The monies are either to be paid by means of Swarmer accessing a direct debit authority which Investors will have agreed to, which will be contained on the Website. Where Investors need not provide a direct debit authority, but they will still need to provide their bank account details to Swarmer and will be responsible for effecting a direct credit to the Trust Account at the time of investment. The moneys paid by Investors into the Trust Account will be released to the Company by Swarmer only when the conditions of the CSF Offer (e.g. the minimum subscription levels) have been satisfied.
  48. At the stage the moneys in the Trust Account are transferred to the relevant Company the Company will be obliged to issue shares to you and the other Investors in that Company. You should be aware that the amount so transferred to the relevant Company will ordinarily be reduced by the amount of any fees and expenses then owing to Swarmer by the Company in relation to the Offer. These fees and expenses will be disclosed in the Offer Materials.
  49. Each Subscription Agreement will typically set out the timeframe within which a Company must issue the applicable shares to Investors following a successful CSF Offer. While this timeframe may vary from Company to Company, Swarmer requires a Company to issue shares within a maximum period of 10 business days following closing of the CSF Offer. The shares will ordinarily be issued on the same day as Swarmer releases the investor moneys from the Trust Account to the Company (less the fees owing by the Company to Swarmer)
  50. Should the CSF Offer not proceed for any reason, including where minimum subscription target levels have not been achieved, then Swarmer will return your payment to your account at the bank from which Swarmer debited the subscription moneys (or in the case of Investors by credit, after deducting any costs of transfer or exchange), to the bank account provided on the Swarmer website. No interest on those moneys while held in the Trust Account will be payable to you.
  51. Subscription moneys for shares in a particular Company will typically be accepted in order of receipt of the moneys. If there is an oversubscription (that is, aggregate commitments to subscribe for shares exceed the maximum amount proposed to be raised) then Swarmer will close the CSF Offer immediately and reserves the right to scale or reject the last commitments to be received in order to ensure total commitments do not exceed the maximum target amount.
  52. Swarmer reserves the right to allow Companies to issue shares (and to receive subscription moneys received from Investors accordingly) even if one or more Investors who have committed to subscribe for shares in that Company (i.e., by signing the relevant Subscription Agreement) fail for one reason or another to provide their moneys. In such a situation there is a risk that the minimum target level of share capital may not actually be received. In that situation Swarmer will consult with the Company and will decide whether or not the CSF Offer should proceed on the basis of the actual amounts of moneys received from Investors or whether it should be terminated. If the CSF Offer is terminated then moneys received will be returned to Investors. If the share issue proceeds then Swarmer will only allow that if the total amount raised from Investors is at least equal to 90% of the minimum amount specified in the Offer Materials as being required to be raised.
  53. By your signifying your agreement to the terms of this Agreement you agree that Swarmer will be authorised to access the moneys paid by you and held in the Trust Account for the purposes specified in this Agreement.


    54. Miscellaneous matters

  54. Nothing in this Agreement is intended to reduce your rights available against Swarmer under the general law, whether under the Australian Law or otherwise. To the extent that any provision in this Agreement is contrary to the law then it shall be deemed to be varied so that it is no longer so contrary.
  55. Nothing in this Agreement is intended to reduce your rights available against Swarmer under the general law, whether under the Australian Law or otherwise. To the extent that any provision in this Agreement is contrary to the law then it shall be deemed to be varied so that it is no longer so contrary.


    56. Status of this Agreement

  56. As noted in paragraph 1 above, this Agreement is a binding contract between you and Swarmer. It becomes binding when you add your initials as a digital signature to the box on the relevant web page at the time you agree to invest in a Company as an Investor.
Dated: 15 November 2021