AMENDED AND RESTATED OFFERING DEPOSIT ACCOUNT AGENCY AGREEMENT
Exhibit 10.21
AMENDED AND RESTATED OFFERING DEPOSIT ACCOUNT AGENCY AGREEMENT
This AMENDED AND RESTATED OFFERING DEPOSIT ACCOUNT AGENCY AGREEMENT (this “Agreement”) dated as of this _ day of February, 2019, by and among Leaping Group Co., Ltd., its subsidiaries and affiliates or any other corporate entities that may be utilized from time to time (the “Company”), having an address at Xxxx 0000, Xxxxxxxxxxx Xxxxxx, Xx.000, Jianshe East Road, Tiexi District, Shenyang City, Liaoning Province, P.R. China, and BOUSTEAD SECURITIES, LLC, serving as the representative of the underwriters (the “Underwriter”), having an address at 0 Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 XXX, and FinTech Clearing, LLC (the “Deposit Account Agent”), a broker-dealer registered with the Securities and Exchange Commission (“SEC”), having an xxxxxx xx 0 Xxxxxxx, Xxxxx 000, Xxxxxx, XX 00000 XXX. All capitalized terms not herein defined shall have the meaning ascribed to them in that certain prospectus filed with the United States SEC dated January 2, 2019, under File Number 333-229116, including all attachments, schedules and exhibits thereto, as amended from time to time (the “Prospectus”).
WHEREAS, the Company, the Underwriter and the Deposit Account Agent entered into that certain Offering Deposit Account Agency Agreement dated as of October 17, 2018 (“Original Agreement”);
WHEREAS, the Company, the Underwriter and the Deposit Account Agent desire to amend and restate the Original Agreement in its entirety and enter into this Agreement; WHEREAS, pursuant to the terms of the Prospectus the Company desires to sell (the “Offering”) a minimum of $6,000,000 (the “Minimum Amount”) and a maximum of $20,000,000 (the “Maximum Amount”) of its ordinary shares (the “Shares”). The minimum investment per subscriber is one hundred shares (which minimum investment may be waived by Company); and
WHEREAS, unless the Minimum Amount is sold by [ ] (the “Final Termination Date”), the Offering shall terminate, and all funds shall be returned to the subscribers in the Offering, and if the Minimum Amount is met, the Offering may continue until the Final Termination Date; and
WHEREAS, the Company and Underwriter desire to establish a deposit account with the Deposit Account Agent into which the Company and Underwriter shall instruct investors introduced to the Company by Underwriter (the “Investors”) to wire funds made payable to the order of “FinTech Clearing, as Deposit Account Agent for the Investors in Leaping Group Co., Ltd.” and Deposit Account Agent is willing to accept said wires for the payment of money in accordance with the terms hereinafter set forth;
WHEREAS, the Company, as issuer, and Underwriter, as an introducing broker-dealer, represent and warrant to the Deposit Account Agent that they will comply with all of their respective obligations under applicable state and federal securities laws and regulations with respect to sale of the Offering;
WHEREAS, the Company and Underwriter represent and warrant to the Deposit Account Agent that they have not stated to any individual or entity that the Deposit Account Agent’s duties will include anything other than those duties stated in this Agreement; and
WHEREAS, the Company and Underwriter warrant to the Deposit Account Agent that a copy of each document that has been delivered to Investors and third parties that include Deposit Account Agent’s name and duties, has been attached hereto as Schedule I.
NOW, THEREFORE, IT IS AGREED as follows:
| 1. | Delivery of Deposit Funds. |
(a) Underwriter and the Company shall instruct Investors to wire transfer to “FinTech Clearing, as Deposit Account Agent for the Investors in Leaping Group Co., Ltd.” Account No. _____________, at Pacific Mercantile Bank, SWIFT Code XXXXXX00 and ABA Routing Number 000000000 in each case, with the name and address of the individual or entity making payment. In the event any Investor’s address is not provided to Deposit Account Agent by the Investor, then Underwriter and/or the Company agree to promptly provide Deposit Account Agent with such information in writing. The wire transfers shall be deposited into a non-interest-bearing account at Pacific Mercantile Bank (the “Deposit Account”).
(b) The collected funds deposited into the Deposit Account are referred to as the “Deposit Funds.”
(c) The Deposit Account Agent shall have no duty or responsibility to enforce the collection or demand payment of any funds deposited into the Deposit Account. If, for any reason, any check deposited into the Deposit Account shall be returned unpaid to the Deposit Account Agent, the sole duty of the Deposit Account Agent shall be to return the check to the Investor and advise the Company and Underwriter promptly thereof.
(a) In the event that the Company and Underwriter advise the Deposit Account Agent in writing that the Offering has been terminated (the “Termination Notice”), the Deposit Account Agent shall promptly return the funds paid by each Investor to said Investor without interest or offset within five (5) business days.
(b) If prior to 3:00 P.M. Pacific Time on the Final Termination Date, the Deposit Account Agent receives written notice, in the form of Exhibit A, attached hereto and made a part hereof, and signed by the Company and Underwriter, stating that the Final Termination Date has been extended (the “Extension Notice”), then the Final Termination Date shall be so extended and such date shall be the new “Final Termination Date”.
(c) Provided that the Deposit Account Agent does not receive the Termination Notice in accordance with Section 2(a) and there is the Minimum Amount deposited into the Deposit Account on or prior to the Final Termination Date or the date stated in the Extension Notice, if any, received by the Deposit Account Agent in accordance with Section 2(b) above, the Deposit Account Agent shall, upon receipt of written instructions, in the form of Exhibit B, attached hereto and made a part hereof, or in a form and substance satisfactory to the Deposit Account Agent, received from the Company and Underwriter, pay the Deposit Funds in accordance with such written instructions, such payment or payments to be made by wire transfer within one (1) business day of receipt of such written instructions. Such instructions must be received by the Deposit Account Agent no later than 3:00 PM Pacific Time on a Business Day for the Deposit Account Agent to process such instructions that Business Day.
(d) If by 3:00 P.M. Pacific time on the later of the Final Termination Date or the date stated in the Extension Notice, if any, that the Deposit Account Agent has received in accordance with Section 2(b) above, the Deposit Account Agent has not received written instructions from the Company and Underwriter regarding the disbursement of the Deposit Funds or the total amount of the Deposit Funds is less than the Minimum Amount, then the Deposit Account Agent shall promptly return the Deposit Funds to the Investors without interest or offset within five (5) business days. The Deposit Funds returned to each Investor shall be free and clear of any and all claims of the Deposit Account Agent.
(e) The Deposit Account Agent shall not be required to pay any uncollected funds or any funds that are not available for withdrawal.
(f) If the Final Termination Date or any date that is a deadline under this Agreement for giving the Deposit Account Agent notice or instructions or for the Deposit Account Agent to take action is not a Business Day, then such date shall be the Business Day that immediately preceding that date. A “Business Day” is any day other than a Saturday, Sunday or a day that a SEC-registered broker-dealer is not legally obligated to be opened.
(a) The Deposit Account Agent may act in reliance upon any signature believed by it to be genuine and may assume that any person who has been designated by Underwriter or the Company to give any written instructions, notice or receipt, or make any statements in connection with the provisions hereof has been duly authorized to do so. Deposit Account Agent shall have no duty to make inquiry as to the genuineness, accuracy or validity of any statements or instructions or any signatures on statements or instructions. The names and true signatures of each individual authorized to act singly on behalf of the Company and Underwriter are stated in Schedule II, which is attached hereto and made a part hereof. The Company and Underwriter may each remove or add one or more of its authorized signers stated on Schedule II by notifying the Deposit Account Agent of such change in accordance with this Agreement, which notice shall include the true signature for any new authorized signatories.
(b) The Deposit Account Agent may act relative hereto in reliance upon advice of counsel in reference to any matter connected herewith. The Deposit Account Agent shall not be liable for any mistake of fact or error of judgment or law, or for any acts or omissions of any kind, unless caused by its willful misconduct or gross negligence.
(c) Underwriter and the Company agree to indemnify and hold the Deposit Account Agent harmless from and against any and all claims, losses, costs, liabilities, damages, suits, demands, judgments or expenses (including but not limited to reasonable attorney’s fees) claimed against or incurred by Deposit Account Agent arising out of or related, directly or indirectly, to this Agreement unless caused by the Deposit Account Agent’s gross negligence or willful misconduct.
(d) In the event that the Deposit Account Agent shall be uncertain as to its duties or rights hereunder, the Deposit Account Agent shall be entitled to (i) refrain from taking any action other than to keep safely the Deposit Funds until it shall be directed otherwise by a court of competent jurisdiction, or (ii) deliver the Deposit Funds to a court of competent jurisdiction.
(e) The Deposit Account Agent shall have no duty, responsibility or obligation to interpret or enforce the terms of any agreement other than Deposit Account Agent’s obligations hereunder, and the Deposit Account Agent shall not be required to make a request that any monies be delivered to the Deposit Account, it being agreed that the sole duties and responsibilities of the Deposit Account Agent shall be to the extent not prohibited by applicable law (i) to accept checks or other instruments for the payment of money and wire transfers delivered to the Deposit Account Agent for the Deposit Account and deposit said checks and wire transfers into the non-interest bearing Deposit Account, and (ii) to disburse or refrain from disbursing the Deposit Funds as stated above, provided that the checks received by the Deposit Account Agent have been collected and are available for withdrawal.
If to Underwriter:
Boustead Securities, LLC
0 Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 XXX
Attention: Xxxxx Xxxxx, CEO
Email: xxxxx@xxxxxxxx0000.xxx
If to the Company:
Room 2010, Huaruntiexi Centre, No.158, Jianshe East Road
Tiexi District, Shenyang City, Liaoning Province
P.R. China
Attention: Mr. Xxx Xxxxx, Chief Executive Officer
Email: xxxxxxxx@xxxxxxx.xxx
With a copy to:
Xxxxxx Xxxxxxx Xxxxxxx & Li, LLC
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xx, Esq.
Email: xxx@xxxxxxxxxx.xxx
If to Deposit Account Agent:
FinTech Clearing, LLC
0 Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 XXX
Attention: Xxxxx Xxxx, President
Email: xxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
| 11. | General. |
(a) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to agreements made and to be entirely performed within such State, without regard to choice of law principles and any action brought hereunder shall be brought in the courts of the State of California, located in the County of Orange. Each party hereto irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any manner permitted by applicable law and consents to the jurisdiction of said courts. EACH OF THE PARTIES HERETO HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(b) This Agreement sets forth the entire agreement and understanding of the parties with respect to the matters contained herein and supersedes all prior agreements, arrangements and understandings relating thereto.
(c) All of the terms and conditions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the parties hereto, as well as their respective successors and assigns.
(d) This Agreement may be amended, modified, superseded or canceled, and any of the terms or conditions hereof may be waived, only by a written instrument executed by each party hereto or, in the case of a waiver, by the party waiving compliance. The failure of any party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver of any party of any condition, or of the breach of any term contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term of this Agreement. No party may assign any rights, duties or obligations hereunder unless all other parties have given their prior written consent.
(e) If any provision included in this Agreement proves to be invalid or unenforceable, it shall not affect the validity of the remaining provisions.
(f) This Agreement and any modification or amendment of this Agreement may be executed in several counterparts or by separate instruments and all of such counterparts and instruments shall constitute one agreement, binding on all of the parties hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first set forth above.
| Leaping Group Co., Ltd. | Boustead Securities, LLC | |||
| By: | By: | |||
| Name: Xx Xxxxx | Name: Xxxxx Xxxxx | |||
| Title: Chairman | Title: CEO | |||
| FinTech Clearing, LLC | ||
| By: | ||
| Name: Xxxxx Xxxx | ||
| Title: President | ||
| By: | ||
| Name: | ||
| Title: |
Schedule I
OFFERING DOCUMENTS
The Deposit Account Agent is authorized to accept instructions signed or believed by the Deposit Account Agent to be signed by any one of the following on behalf of the Company and Underwriter.
| Name | True Signature |
| Xx Xxxxx, Chairman |
Boustead Securities, LLC
| Name | True Signature |
| Xxxxx Xxxxx, CEO | |
| Xxx XxXxxxx, Managing Director |
Schedule III
Fee Schedule
| Service | Fee | |||
| Cash Management Fee | 2.2% of the Minimum Amount | |||
| CIP/AML check (applied to each subscriber) | $ | 2.00 | ||
| Wire Transfers – Incoming (Domestic or Foreign) | $ | 5.00 | ||
| Wire Transfers – Outgoing (Domestic) | $ | 10.00 | ||
| Wire Transfers – Outgoing (Foreign) | $ | 25.00 | ||
| NACHA Upload per file | $ | 5.00 | ||
| ACH per transaction (incoming or outgoing) | $ | 0.50 | ||
| ACH Exceptions (incoming or outgoing) | $ | 2.00 | ||
| Check Processing (incoming or outgoing) | $ | 10.00 | ||
Exhibit A
Date:
FinTech Clearing, LLC
0 Xxxxxxx, Xxxxx 000 Xxxxxx, XX 00000
Attention: Xxxxx Xxxx, President
Dear Mr. Park:
In accordance with the terms of Section 2(b) of a Deposit Account Agreement dated ___ _______, by and among [ ] (the “Company”), Boustead Securities, LLC (the “Underwriter”), and FinTech Clearing, LLC (the “Deposit Account Agent”), the Company and Underwriter hereby notifies the Deposit Account Agent that the Termination Date has been extended to ____________, 2018, the Final Termination Date.
Very truly yours,
[ ]
| By: | ||
| Name: | ||
| Title: | ||
| Boustead Securities, LLC | ||
| By: | ||
| Name: Xxxxx Xxxxx | ||
| Title: CEO | ||
Exhibit B
FORM OF DEPOSIT RELEASE NOTICE
Date:
FinTech Clearing, LLC
0 Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx, President
Dear Mr. Park:
In accordance with the terms of Section 2(d) of the Amended and Restated Offering Deposit Account Agency Agreement dated as of ________ __, 2019 (the “Deposit Account Agreement”), by and between [ ] (the “Company”), FinTech Clearing, LLC (the “Deposit Account Agent”) and Boustead Securities, LLC (the "Underwriter"), the Company and Underwriter hereby notify the Deposit Account Agent that the ________ closing will be held on ___________ for gross proceeds of $_________.
PLEASE DISTRIBUTE FUNDS BY WIRE TRANSFER AS FOLLOWS (wire instructions attached):
________________________: $
________________________: $
________________________: $
Very truly yours,
[ ]
| By: | ||
| Name: | ||
| Title: | ||
| Boustead Securities, LLC | ||
| By: | ||
| Name: Xxxxx Xxxxx | ||
| Title: CEO | ||