Exhibit 10.1
THE SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED IN AN OFFSHORE TRANSACTION
TO PERSONS WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO REGULATION S
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED UNDER THE 1933
ACT, OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE
OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS
(AS DEFINED HEREIN) EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S
UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
1933 ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN ADDITION, HEDGING
TRANSACTIONS INVOLVING THE SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY
REGULATION S UNDER THE 1933 ACT.
DEBT CONVERSION AGREEMENT
(Non-US and Non-Canadian Subscriber)
TO: UPSTREAM BIOSCIENCES INC. (the "COMPANY")
Three Sugar Creek Center, Suite 100
Sugar Land, Texas 77478
WHEREAS:
A. The Company is indebted to Six Capital Limited, a Seychelles corporation,
(the "SUBSCRIBER") in the total amount of $35,000 (the "INDEBTEDNESS") for
unpaid remuneration and a performance bonus for consulting services performed;
and
B. The Subscriber has agreed to convert the Indebtedness into common shares of
the Company pursuant to the terms and conditions of this Agreement.
NOW THEREFORE this Agreement witnesses that for and in consideration of the
mutual covenants, agreements, representations and warranties in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
is acknowledged by each party, the parties agree as follows:
1. ACKNOWLEDGMENT OF DEBT
1.1 The Company and the Subscriber acknowledge and agree that, as of the date of
this Agreement, the Company is indebted to the Subscriber in the amount of the
Indebtedness.
2. SUBSCRIPTION AND RELEASE
2.1 On the basis of the representations and warranties and subject to the terms
and conditions set forth herein, the Subscriber hereby irrevocably agrees to
convert the Indebtedness into 1,000,000 common shares of the Company (the
"SECURITIES") at a conversion price of $0.035 per each share of the Company.
2.2 On the basis of the representations and warranties and subject to the terms
and conditions set forth herein, the Company hereby irrevocably agrees to issue
the Securities, as duly issued and authorized, fully paid and non-assessable
shares, and deliver the Securities, comprised of a duly and validly issued
certificate representing the Securities to the Subscriber on the Closing Date,
in exchange for and upon the conversion of the Indebtedness.
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2.3 The Subscriber hereby agrees that upon delivery of the Securities by the
Company in accordance with the provisions of this Agreement and applicable law,
all amounts outstanding under the Indebtedness will be fully satisfied and
extinguished, and the Subscriber will remise, release and forever discharge the
Company and its respective directors, officers, employees, successors,
solicitors, agents and assigns from any and all obligations to pay the
Indebtedness, other than any such obligations arising out of or in connection
with the issuance, sale and delivery of the Securities or otherwise under this
Agreement.
3. DOCUMENTS REQUIRED FROM SUBSCRIBER
3.1 The Subscriber has completed, signed and returned to the Company an executed
copy of this Agreement and the Subscriber shall complete, sign and return to the
Company as soon as possible, on request by the Company, any additional
documents, questionnaires, notices and undertakings as may be required by any
regulatory authorities and applicable law.
4. CONDITIONS AND CLOSING
4.1 Closing of the offering of the Securities (the "CLOSING") shall occur on the
date as determined by the Company in its sole discretion (the "CLOSING DATE").
5. ACKNOWLEDGEMENTS AND AGREEMENTS OF SUBSCRIBER
5.1 The Subscriber acknowledges and agrees that:
(a) none of the Securities have been or, except as contemplated herein,
will be registered under the Securities Act of 1933, as amended (the
"1933 ACT"), or under any state securities or "blue sky" laws of any
state of the United States, and, unless so registered, may not be
offered or sold in the United States or, directly or indirectly, to
U.S. Persons, as that term is defined in Regulation S under the 1933
Act ("REGULATION S"), except in accordance with the provisions of
Regulation S, pursuant to an effective registration statement under
the 1933 Act, or pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the 1933 Act and in
each case only in accordance with applicable state and provincial
securities laws;
(b) the Subscriber acknowledges that the Company has not undertaken, and
will have no obligation, to register any of the Securities under the
1933 Act or any other securities legislation;
(c) the decision to execute this Agreement and acquire the Securities has
not been based upon any oral or written representation as to fact or
otherwise made by or on behalf of the Company and such decision is
based entirely upon a review of any public information which has been
filed by the Company with the Securities and Exchange Commission
("SEC") in compliance, or intended compliance, with applicable
securities legislation;
(d) the Subscriber and the Subscriber's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Company
in connection with the distribution of the Securities hereunder, and
to obtain additional information, to the extent possessed or
obtainable without unreasonable effort or expense, necessary to verify
the accuracy of the information about the Company;
(e) the books and records of the Company were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Subscriber during reasonable business hours at
its principal place of business, and all documents, records and books
in connection with the distribution of the Securities hereunder have
been made available for inspection by the Subscriber, the Subscriber's
lawyer and/or advisor(s);
(f) all of the information which the Subscriber has provided to the
Company is correct and complete as of the date this Agreement is
signed, and if there should be any change in such information prior to
this Agreement being executed by the Company, the Subscriber will
immediately provide the Company with such information;
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(g) the Company is entitled to rely on the representations and warranties
of the Subscriber contained in this Agreement and the Subscriber will
hold harmless the Company from any loss or damage it or they may
suffer as a result of the Subscriber's failure to correctly complete
this Agreement;
(h) the Subscriber will indemnify and hold harmless the Company and, where
applicable, its directors, officers, employees, agents, advisors and
shareholders, from and against any and all loss, liability, claim,
damage and expense whatsoever (including, but not limited to, any and
all fees, costs and expenses whatsoever reasonably incurred in
investigating, preparing or defending against any claim, lawsuit,
administrative proceeding or investigation whether commenced or
threatened) arising out of or based upon any representation or
warranty of the Subscriber contained in this Agreement or in any
document furnished by the Subscriber to the Company in connection
herewith being untrue in any material respect or any breach or failure
by the Subscriber to comply with any covenant or agreement made by the
Subscriber to the Company in connection therewith;
(i) the Company will refuse to register any transfer of the Securities not
made in accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from the registration requirements of the 1933 Act
and in accordance with any other applicable securities laws;
(j) the Subscriber has been advised to consult the Subscriber's own legal,
tax and other advisors with respect to the merits and risks of an
investment in the Securities and with respect to applicable resale
restrictions, and it is solely responsible (and the Company is not in
any way responsible) for compliance with:
(i) any applicable laws of the jurisdiction in which the Subscriber
is resident in connection with the distribution of the Securities
hereunder, and
(ii) applicable resale restrictions;
(k) the Subscriber consents to the placement of a legend on any
certificate or other document evidencing any of the Securities to the
effect that such securities have not been registered under the 1933
Act or any state securities or "blue sky" laws and setting forth or
referring to the restrictions on transferability and sale thereof
contained in this Agreement such legend to be substantially as
follows:
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED
IN AN OFFSHORE TRANSACTION TO PERSONS WHO ARE NOT
U.S. PERSONS (AS DEFINED HEREIN) PURSUANT TO
REGULATION S UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "1933 ACT").
NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN
REGISTERED UNDER THE 1933 ACT, OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY
BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN)
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
REGULATION S UNDER THE 1933 ACT, PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT,
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. IN
ADDITION, HEDGING TRANSACTIONS INVOLVING THE
SECURITIES MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE
WITH THE 1933 ACT. "UNITED STATES" AND "U.S. PERSON"
ARE AS DEFINED BY REGULATION S UNDER THE 1933 ACT.
(l) the statutory and regulatory basis for the exemption claimed for the
offer and sale of the Securities, although in technical compliance
with Regulation S, would not be available if the offering is part of a
plan or scheme to evade the registration provisions of the 1933 Act;
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(m) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of any of
the Securities and no documents in connection with the sale of the
Securities hereunder have been reviewed by the SEC or any state
securities administrators;
(n) there is no government or other insurance covering any of the
Securities; and
(o) this Agreement is not enforceable by the Subscriber unless it has been
accepted by the Company.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SUBSCRIBER
6.1 The Subscriber hereby represents and warrants to and covenants with the
Company (which representations, warranties and covenants shall survive the
Closing) that:
(a) the Subscriber is not a U.S. Person and the Subscriber is not
acquiring the Securities for the account or benefit of, directly or
indirectly, any U.S. Person;
(b) the Subscriber is resident in the jurisdiction set out under the
heading "Name and Address of Subscriber" on the signature page of this
Agreement;
(c) it has the legal capacity and competence to enter into and execute
this Agreement and to take all actions required pursuant hereto and,
if the Subscriber is a corporate entity, it is duly incorporated and
validly subsisting under the laws of its jurisdiction of incorporation
and all necessary approvals have been obtained to authorize execution
and performance of this Agreement on behalf of the Subscriber;
(d) the Subscriber is a resident of an International Jurisdiction (which
is defined herein to mean a country other than Canada or the United
States) and the Subscriber on its own behalf and, if applicable on
behalf of others for whom it is hereby acting that:
(i) the Subscriber is knowledgeable of, or has been independently
advised as to, the International Securities Laws (which is
defined herein to mean, in respect of each and every offer or
sale of Securities, any securities laws having application to the
Purchaser and the purchase of the Securities other than the laws
of Canada and the United States and all regulatory notices,
orders, rules, regulations, policies and other instruments
incidental thereto) which would apply to this subscription, if
any;
(ii) the Subscriber is purchasing the Securities pursuant to an
applicable exemption from any prospectus, registration or similar
requirements under the International Securities Laws of that
International Jurisdiction, or, if such is not applicable, the
Subscriber is permitted to purchase the Securities under the
International Securities Laws of the International Jurisdiction
without the need to rely on exemptions;
(iii)the subscription by the Subscriber does not contravene any of
the International Securities Laws applicable to the Subscriber
and the Issuer and does not give rise to any obligation of the
Issuer to prepare and file a prospectus or similar document or to
register the Securities or to be registered with any governmental
or regulatory authority;
(iv) the International Securities Laws do not require the Issuer to
make any filings or seek any approvals of any kind whatsoever
from any regulatory authority of any kind whatsoever in the
International Jurisdiction; and
(v) the Securities are being acquired for investment purposes only
and not with a view to resale and distribution, and the
distribution of the Securities to the Subscriber by the Issuer
complies with all International Securities Laws;
(e) the entering into of this Agreement and the transactions contemplated
hereby do not result in the violation of any of the terms and
provisions of any law applicable to, or, if the Subscriber is a
corporate entity, the constating documents of, the Subscriber or of
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any agreement, written or oral, to which the Subscriber may be a party
or by which the Subscriber is or may be bound;
(f) the Subscriber has duly executed and delivered this Agreement and it
constitutes a valid and binding agreement of the Subscriber
enforceable against the Subscriber;
(g) the Subscriber has received and carefully read this Agreement;
(h) the Subscriber is acquiring the Securities as principal for investment
only and not with a view to resale or distribution;
(i) the Subscriber is aware that an investment in the Company is
speculative and involves certain risks, including the possible loss of
the entire investment;
(j) the Subscriber has made an independent examination and investigation
of an investment in the Securities and the Company and has depended on
the advice of its legal and financial advisors;
(k) the Subscriber (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
bear the economic risks of an investment in the Securities for an
indefinite period of time;
(l) the Subscriber (i) is able to fend for itself; (ii) has such knowledge
and experience in business matters as to be capable of evaluating the
merits and risks of its prospective investment in the Securities; and
(iii) can afford the complete loss of such investment;
(m) the Subscriber is outside the United States when receiving and
executing this Agreement;
(n) the Subscriber is not an underwriter of, or dealer in, the common
shares of the Company, nor is the Subscriber participating, pursuant
to a contractual agreement or otherwise, in the distribution of the
Securities;
(o) the Subscriber is not aware of any advertisement of any of the
Securities and is not acquiring the Securities as a result of any form
of general solicitation or general advertising including
advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio or
television, or any seminar or meeting whose attendees have been
invited by general solicitation or general advertising;
(p) others will rely upon the truth and accuracy of the representations
and warranties contained in this Section 0 and agrees that if such
representations and warranties are no longer accurate or have been
breached, the Subscriber shall immediately notify the Company;
(q) no person has made to the Subscriber any written or oral
representations:
(i) that any person will resell or repurchase any of the Securities;
(ii) that any person will refund the purchase price of any of the
Securities;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading
on any stock exchange or automated dealer quotation system or
that application has been made to list and post any of the
Securities of the Company on any stock exchange or automated
dealer quotation system; and
(r) the Subscriber has provided to the Company, along with an executed
copy of this Agreement:, and such other supporting documentation that
the Company or its legal counsel may request to establish the
Subscriber's qualification as a qualified investor.
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6.2 In this Agreement, the term "U.S. Person" shall have the meaning ascribed
thereto in Regulation S promulgated under the 1933 Act and for the purpose of
the Agreement includes any person in the United States.
7. REPRESENTATIONS AND WARRANTIES WILL BE RELIED UPON BY THE COMPANY
7.1 The Subscriber acknowledges and agrees that the representations and
warranties contained herein are made by it with the intention that such
representations and warranties will be relied upon by the Company and its legal
counsel in determining the Subscriber's eligibility to acquire the Securities
under applicable securities legislation. The Subscriber further agrees that by
accepting delivery of the certificates representing the Securities on the
Closing Date, it will be representing and warranting that the representations
and warranties contained herein are true and correct as at the Closing Date with
the same force and effect as if they had been made by the Subscriber on the
Closing Date and that the representations and warranties will survive the
acquisition by the Subscriber of the Securities notwithstanding any subsequent
disposition by the Subscriber of such securities.
8. ACKNOWLEDGEMENT AND WAIVER
8.1 The Subscriber has acknowledged that the decision to acquire the Securities
was solely made on the basis of publicly available information. The Subscriber
hereby waives, to the fullest extent permitted by law, any rights of withdrawal,
rescission or compensation for damages to which the Subscriber might be entitled
in connection with the distribution of any of the Securities.
9. RESALE RESTRICTIONS
9.1 The Subscriber acknowledges that any resale of the Securities will be
subject to resale restrictions contained in the securities legislation
applicable to the Subscriber or proposed transferee. The Subscriber acknowledges
that none of the Securities have been registered under the 1933 Act or the
securities laws of any state of the United States. None of the Securities may be
offered or sold in the United States unless registered in accordance with United
States federal securities laws and all applicable state and provincial
securities laws or exemptions from such registration requirements are available.
10. LEGENDING AND REGISTRATION OF SUBJECT SECURITIES
10.1 The Subscriber hereby acknowledges that a legend may be placed on the
certificates representing the Securities to the effect that the Securities
represented by such certificates are subject to a hold period and may not be
traded until the expiry of such hold period except as permitted by applicable
securities legislation.
10.2 The Subscriber hereby acknowledges and agrees to the Company making a
notation on its records or giving instructions to the registrar and transfer
agent of the Company in order to implement the restrictions on transfer set
forth and described in this Agreement.
11. COLLECTION OF PERSONAL INFORMATION
11.1 The Subscriber acknowledges and consents to the fact that the Company is
collecting the Subscriber's personal information for the purpose of fulfilling
this Agreement and completing the transactions contemplated herein. The
Subscriber's personal information (and, if applicable, the personal information
of those on whose behalf the Subscriber is contracting hereunder) may be
disclosed by the Company to (a) stock exchanges or securities regulatory
authorities, (b) the Company's registrar and transfer agent, (c) tax
authorities, (d) any of the other parties involved in the transactions
contemplated herein, including legal counsel, and may be included in record
books in connection with the transactions contemplated herein. By executing this
Agreement, the Subscriber is deemed to be consenting to the foregoing
collection, use and disclosure of the Subscriber's personal information (and, if
applicable, the personal information of those on whose behalf the Subscriber is
contracting hereunder) and to the retention of such personal information for as
long as permitted or required by law or business practice. Notwithstanding that
the Subscriber may be purchasing Securities as agent on behalf of an undisclosed
principal, the Subscriber agrees to provide, on request, particulars as to the
identity of such undisclosed principal as may be required by the Company in
order to comply with the foregoing.
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11.2 Furthermore, the Subscriber is hereby notified that the Company may deliver
to a provincial securities commission and/or the SEC certain personal
information pertaining to the Subscriber, including such Subscriber's full name,
residential address and telephone number, the number of shares or other
securities of the Company owned by the Subscriber, the number of Securities
purchased by the Subscriber and the total purchase price paid for such
Securities, the prospectus exemption relied on by the Company and the date of
distribution of the Securities.
12. COSTS
12.1 Each party shall bear its own costs and expenses (including any fees and
disbursements of any counsel retained by such party) relating to the issuance of
the Securities and the other transactions contemplated by this Agreement.
13. GOVERNING LAW
13.1 This Subscription Agreement is governed by the laws of the State of Nevada.
14. SURVIVAL
14.1 This Agreement, including without limitation the representations,
warranties and covenants contained herein, shall survive and continue in full
force and effect and be binding upon the parties hereto notwithstanding the
completion of the purchase of the Securities by the Subscriber pursuant hereto.
15. ASSIGNMENT
15.1 This Agreement is not transferable or assignable.
16. SEVERABILITY
16.1 The invalidity or unenforceability of any particular provision of this
Agreement shall not affect or limit the validity or enforceability of the
remaining provisions of this Agreement.
17. ENTIRE AGREEMENT
17.1 Except as expressly provided in this Agreement and in the agreements,
instruments and other documents contemplated or provided for herein, this
Agreement contains the entire agreement between the parties with respect to the
sale of the Securities and there are no other terms, conditions, representations
or warranties, whether expressed, implied, oral or written, by statute or common
law, by the Company or by anyone else.
18. NOTICES
18.1 All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Subscriber shall be directed to the
address on the signature page of this Agreement and notices to the Company shall
be directed to it at Three Sugar Creek Center, Suite 100, Sugar Land, Texas
77478.
19. COUNTERPARTS AND ELECTRONIC MEANS
19.1 This Agreement may be executed in any number of counterparts, each of
which, when so executed and delivered, shall constitute an original and all of
which together shall constitute one instrument. Delivery of an executed copy of
this Agreement by electronic facsimile transmission or other means of electronic
communication capable of producing a printed copy will be deemed to be execution
and delivery of this Agreement as of the date hereinafter set forth.
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IN WITNESS WHEREOF the Subscriber has duly executed this Agreement as of the
date of acceptance by the Company.
Six Capital Limited
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(Name of Subscriber - Please type or print)
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(Signature and, if applicable, Office)
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(Address of Subscriber)
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(City, State or Province, Postal Code of Subscriber)
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(Country of Subscriber)
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(Email Address)
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(Telephone Number)
A C C E P T A N C E
The above-mentioned Agreement in respect of the Securities is hereby accepted by
Upstream Biosciences Inc.
DATED at ________________________, the _____ day of ____________________, 2013.
UPSTREAM BIOSCIENCES INC.
Per:
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Authorized Signatory