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 10,000,000 common shares of the Company (the
"SECURITIES") at a conversion price of $0.0035 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.
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
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constating documents of, the Subscriber or of 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)
ACCEPTANCE
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
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