Exhibit 10.1
THIS CONSULTING AGREEMENT is effective as of the 12th day of March, 2014.
BETWEEN:
LIFE STEM GENETICS INC., with an office at 433 North Camden Drive,
Suite 400, Beverly Hills, California 90210.
(the "COMPANY")
AND:
VINO PADAYACHEE with an address at 819 Bayview Crescent, Saskatoon,
Saskatchewan S7V 1B7.
("PADAYACHEE")
This Agreement contains the terms and conditions of the appointment and service
of Padayachee, an independent contractor, as a Director and Chairman of the
Board of Directors of the Company (the "BOARD OF DIRECTORS"). Padayachee agrees
to serve as a Director and Chairman of the Board of Directors for a term of five
years commencing on March 12, 2014 (the "COMMENCEMENT DATE") and ending on March
12, 2019 (the "TERM") at the appointment of the Board of Directors and
(re-)election by shareholders of the Company, unless this Agreement is
terminated or the Term is extended in accordance with the provisions of this
Agreement.
1. DEFINITIONS
In this Agreement:
(a) "AFFILIATE" means a company that is affiliated with the Company, and
for the purposes of this Agreement, one company is affiliated with
another company if one of them is a subsidiary of the other, or both
are subsidiaries of the same company, or each of them is controlled by
the same Person.
(b) "AGREEMENT" means this agreement and schedules attached to this
agreement, as amended or supplemented from time to time.
(c) "APPROVED BY THE COMPANY" or words of similar import means approved by
an authorized representative of the Company other than Padayachee. (d)
"BOARD" means the board of directors of the Company.
(e) "BUSINESS OF THE COMPANY" means (i) the business of the Company; (ii)
the provision of related consulting services; and (iii) any other
material business carried on from time to time by the Company.
(f) "CAUSE" means:
(i) any willful failure by Padayachee in the performance of any of
the duties under this Agreement;
(ii) conviction of a crime (indictable level or penalized by
incarceration or a lesser crime involving moral turpitude), or
any act involving money or other property involving the Company
that would constitute a crime in the jurisdiction involved by
Padayachee;
(iii)any act of fraud, misappropriation, dishonesty, embezzlement or
similar conduct against the Company or customer of the Company;
(iv) the use of illegal drugs or the habitual and disabling use of
alcohol or drugs;
(v) any material breach of any of the terms of this Agreement which
remains uncured after the expiration of one month following the
delivery of written notice of such breach to Padayachee by the
Company;
(vi) any act which is materially injurious to the Business of the
Company; and
(vii)failure of Padayachee to devote adequate time to the Business of
the Company, or conduct by Padayachee amounting to
insubordination or inattention to, or substandard performance of
duties and responsibilities of Padayachee under this Agreement,
which remains uncured after the expiration of one month following
the delivery of written notice of such failure or conduct to
Padayachee by the Company.
(g) "COMPANY" means Life Stem Genetics Inc., a corporation incorporated
under the Nevada Revised Statutes.
(h) "CONFIDENTIAL INFORMATION" means all confidential or proprietary
facts, data, techniques, material and other information relating to
the Business of the Company or the Company's scientific interests
which may before or after the Commencement Date be disclosed to
Padayachee by the Company or which may otherwise come within knowledge
of Padayachee or which may be developed by Padayachee in the course of
service of Padayachee with the Company or from any other Confidential
Information. Confidential Information includes, without limiting the
generality of the foregoing, trade secrets, know-how, concepts,
techniques, processes, designs, cost data, software programs,
formulas, developmental or experimental work, work in progress,
information concerning business opportunities, including all ventures
considered by the Company whether or not pursued, customer
information, including customer names, addresses, markets and
knowledge of the Company's contracts with its customers and financial
information, including costs, sales, income, profits, salaries and
wages.
(i) "INTELLECTUAL PROPERTY RIGHTS" means all rights in respect of
intellectual property including without limitation, all patent,
industrial design, integrated circuit topography, know-how, trade
secret, privacy and trade-mark rights and copyright, to the extent
those rights may subsist anywhere in the universe.
(j) "PERSON" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with
or without share capital, unincorporated association, trust, trustee,
executor, administrator or other legal personal representative,
regulatory body or agency, government or governmental agency or entity
however designated or constituted.
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(k) "TERMINATION DATE" means and will be deemed to have occurred:
i. in the case of the resignation of Padayachee, on the date that
Padayachee provide written notice of the intention of Padayachee
to the Company; and
ii. in the case of the termination of Padayachee, on the date that
the Company delivers notice of termination of the services of
Padayachee as a Director and Chairman of the Board of the Company
under this Agreement (the "SERVICE").
(l) "WORKS" means copyrightable works of authorship including, without
limitation, any technical descriptions for products, user guides,
illustrations, advertising materials, computer programs (including the
contents of read only memories) and any contribution to such
materials.
2. SERVICE
The terms of the Service of Padayachee will be as follows:
(a) POSITION AND RESPONSIBILITIES: Padayachee will serve the Company in
the position of a Director and Chairman of the Board of Directors as
an independent contractor. Padayachee will perform or fulfill the
duties and responsibilities customary to a Director and Chairman of
the Board of the Company. Padayachee will also perform or fulfill the
duties and responsibilities that the Board may prescribe from time to
time or that are incidental to the position, subject to the constating
documents of the Company and the Nevada Revised Statutes. Padayachee
will provide the Board with such information regarding the affairs of
the Company as it may require, and at all times Padayachee will
conform to the reasonable instructions and directions of the Board.
Further, Padayachee will serve as a Director and Chief Executive
Officer of a subsidiary of the Company that is to be incorporated in
Canada. The Padayachee acknowledges it is an independent contractor,
not an employee, and as such is solely responsible for the payment or
remittance of all deductions, taxes and assessments relating to this
engagement, and agrees to save the Company harmless from, and
indemnify the Company for, any and all liability therefrom.
(b) SCOPE OF DUTIES: During the Term, Padayachee will devote as much time,
attention and abilities as necessary during normal business hours to
the duties hereby granted and accepted, and Padayachee will give the
Company the full benefit of the knowledge, expertise, technical skill
and ingenuity of Padayachee.
(c) COMPENSATION: The Company will compensate Padayachee with Shares (the
"COMPENSATION") payable in 1,000,000 unregistered restricted common
shares of the Company (the "SHARES") as consulting fees per year
during the Term. The 1,000,000 Shares to be issued to Padayachee under
this Agreement per year shall vest and be issued to Padayachee at the
start of each year of the Agreement. The first 1,000,000 Shares due as
compenstion under the agreement will be issued within 14 days of the
Effective Date of the Agreement. PADAYACHEE SHall not be entitled to
any Shares under this Agreement unless PadayacheE HAS COMPLEted
Schedule "A" attached herein and Schedule "A" has remained true and
correct as OF THE date of issuance of such Shares.
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Padayachee hereby acknowledges that upon the issuance thereof, and
until such time as the same is no longer required under the applicable
securities laws and regulations, the certificates representing the
Shares will bear a legend in substantially the following form:
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN OFFERED
IN AN OFFSHORE TRANSACTION TO A PERSON WHO IS NOT A
U.S. PERSON (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, MAY NOT
BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE
UNITED STATES (AS DEFINED HEREIN) OR TO U.S. PERSONS
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."
Padayachee 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.
(d) THE SHARES: If the Agreement is terminated prior to the Term or
extension thereof, any of the Shares that Padayachee is entitled to
receive in respect of such period shall be pro-rated to the day of
termination. Padayachee acknowledges and agrees that all other Shares
that have not vested and been issued will be subject to cancellation
in the event that this Agreement is terminated for any reason, and
that the Company's obligation to issue the balance of the Shares which
have not been fully vested and issued will terminate immediately upon
early termination of this Agreement.
No fractional Shares will be issued but Padayachee will be entitled to
receive one whole Share if, but for this section, Padayachee would
otherwise be entitled to receive a fractional Share.
The Padayachee acknowledges that any resale of the Shares will be
subject to resale restrictions contained in the securities legislation
applicable to Padayachee or proposed transferee. Padayachee
acknowledges that none of the Shares have been registered under the
1933 Act or the securities laws of any state of the United States.
None of the Shares may be offered or sold in the United States unless
registered in accordance with federal securities laws and all
applicable state securities laws or exemptions from such registration
requirements are available.
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(e) DIRECTOR: During the Term of this Agreement or any extension thereof,
Padayachee will act as a Director and Chairman of the Board of
Directors if so elected or appointed and subject to the constating
documents of the Company and the Nevada Revised Statutes.
Notwithstanding the foregoing, nothing in this Agreement binds
Padayachee to act as a Director and Chairman of the Board of
Directors. Subject to section 5 of this Agreement, Padayachee may
resign as a Director and Chairman of the Board of Directors, at the
sole discretion of Padayachee.
(f) EXPENSES: The Company will reimburse Padayachee, subject to the prior
approval by Board of Directors, for all reasonable out-of-pocket
expenses actually and properly incurred by Padayachee in connection
with duties and the Service of Padayachee under this Agreement
provided that Padayachee furnish statements and vouchers for all such
expenses to the Company.
(g) LOCATION: Padayachee will work on site at the offices of the Company,
or at such other places as the Company may from time to time
reasonably direct.
(h) EXTENSION OF TERM: If the Company does not, on or before the date that
is six months prior to the end of the Term of this Agreement or any
extension thereof, provide Padayachee with written notice that the
Company does not wish to extend the Term of this Agreement for an
additional one year period, the Term of this Agreement will subject to
the consent of Padayachee, be deemed to be extended for an additional
one year period on the same terms and conditions as provided for under
this Agreement.
3. ASSIGNMENT OF INTEREST IN INVENTIONS
As consideration for the Service with the Company, Padayachee covenants and
agrees as follows:
(a) DISCLOSURE: Padayachee will make prompt and full disclosure to the
Company of any work, know-how, biological material, research,
discovery, invention, development, production, process or improvement
relating to the Business of the Company produced, created, conceived,
made, improved upon or participated in by Padayachee, solely or
jointly, in the course of or relating to the Service (the
"INVENTIONS"). Padayachee will keep and maintain adequate and current
written records of all Inventions and make such records available to
the Company at all times. All records are and will remain the sole
property of the Company.
(b) ASSIGNMENT: The Company will hold all Intellectual Property Rights in
respect of the Inventions for the exclusive benefit of the Company and
Padayachee will not claim or apply for registration or challenge the
Company's registration of, any such Intellectual Property Rights.
Padayachee's acceptance of the terms of this Agreement constitutes the
absolute, unconditional and irrevocable assignment, transfer and
conveyance of all past, present and future right, title, benefit and
interest in and to all Intellectual Property Rights of Padayachee in
respect of the Inventions. Padayachee hereby waive in favour of the
Company all claims of any nature whatsoever that Padayachee now have
or hereafter may have for infringement of any Intellectual Property
Rights for the Inventions so assigned to the Company. To the extent
that copyright may subsist in the Inventions, Padayachee hereby waive
all past, present and future moral rights Padayachee may have.
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(c) INTELLECTUAL PROPERTY PROTECTION: The Inventions and all related
Intellectual Property Rights will be the absolute and exclusive
property of the Company. The Company may apply for patent, copyright
or other intellectual property protection in the Company's name or,
where such procedure is proper, in the name of Padayachee, anywhere in
the world. Padayachee will, at the Company's request, execute all
documents and do all such acts and things considered necessary by the
Company to obtain, confirm or enforce any Intellectual Property Rights
in respect of the Inventions. If the Company requires but is unable to
secure the signature of Padayachee for any such purpose in a timely
manner, Padayachee hereby appoint any duly authorized officer or agent
of the Company (the "ATTORNEY") to be the attorney of Padayachee, to
act for Padayachee and on the behalf of Padayachee and stead to
execute and deliver any such documents and instruments and to do all
other lawfully permitted acts, matters and things to carry out the
intent of this provision, with the same legal force and effect as if
executed or done by Padayachee.
(d) COPYRIGHTS IN WORKS: Any works created by Padayachee in the course of
the duties of Padayachee with the Company are subject to Section 13(3)
of the COPYRIGHT ACT (Canada) and to the "work for hire" provisions of
sections 101 and 201 of the United States Copyright Law, Title 17 of
the United States Code. All right, title and interest to copyrights in
all Works that have been or will be prepared by Padayachee within the
scope of the Service will be the property of the Company. Padayachee
acknowledge and agree that, to the extent the provisions of the
COPYRIGHT ACT (Canada) or the copyright laws of the United States do
not vest in the Company the copyrights to any Works, Padayachee hereby
irrevocably assign to the Company all right, title and interest to
copyrights which Padayachee may have in any Works. Padayachee will
disclose to the Company all Works, will execute and deliver all
applications, registrations and documents relating to the copyrights
in the Works and will provide assistance to secure the Company's title
to the copyrights in the Works. The company will be responsible for
all expenses incurred in connection with the registration of all
copyrights. Padayachee hereby waive any moral rights which Padayachee
may have under the COPYRIGHT ACT (Canada) or similar legislation
anywhere in the world or otherwise with respect to the Works. 4.
OBLIGATIONS OF SERVICE
Padayachee further covenants and agrees as follows:
(a) PERFORMANCE AND DUTY TO THE COMPANY: Throughout the service of
Padayachee under this Agreement, Padayachee will faithfully serve the
Company and use all reasonable endeavours to promote the interests of
the Company. Padayachee will act honestly, in good faith and in the
best interests of the Company. Padayachee will adhere to all
applicable policies of the Company.
(b) BUSINESS OF THE COMPANY: Padayachee will not, during the Service,
engage in any business, enterprise or activity that is contrary to or
detracts from the due performance of the Business of the Company.
(c) CONFIDENTIALITY: Padayachee will retain all Confidential Information
developed, utilized or received by the Company in the strictest
confidence and will not disclose or permit the disclosure of
Confidential Information in any manner other than in the course of the
Service with and for the benefit of the Company or as required by law
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or a regulatory authority having jurisdiction. Padayachee will not use
Confidential Information for the personal benefit of Padayachee or
permit it to be used for the benefit of any Person other than the
Company, either during the Service or thereafter. Padayachee will take
all reasonable precautions to prevent any Person from having
unauthorized access to Confidential Information or use of it. In
particular, Padayachee will not copy, modify or part with any
Confidential Information, in whole or in part, except with the written
approval of the Company or as may be required to carry out the duties
of Padayachee under this Agreement. All copies of Confidential
Information, and all documents and electronic or other records which
now or hereafter may contain Confidential Information, are and will
remain the exclusive and absolute property of the Company. Padayachee
agrees to hold all confidential or proprietary information received by
the Company from a third party to which the Company owes an obligation
of Confidentiality in the strictest confidence and that Padayachee
will not use such information for the benefit of anyone other than the
Company or the third party without the prior written consent of the
Company.
(d) EXCEPTIONS: Any obligations specified in subsection 4(c) hereof will
not apply to the following:
(i) any information that is presently in the public domain;
(ii) any information that subsequently becomes part of the public
domain through no fault of Padayachee;
(iii)any information obtained by Padayachee from a third party with a
valid right to disclose it, provided that said third party is not
under a confidentiality obligation to the Company and the Company
is not under a confidentiality obligation to said third party; or
(iv) any information that was independently developed by Padayachee or
was otherwise in the lawful possession of Padayachee prior to
receipt from the Company, other than through prior disclosure by
the Company, as evidenced by the business records of Padayachee.
(e) RESTRICTIONS: Padayachee agree to comply with all of the restrictions
set forth below at all times during the Service and for a period of
one year after the Termination Date:
(i) Padayachee will not, either directly or indirectly, on its own
behalf or on behalf of others, solicit, divert, or attempt to
solicit or divert any business opportunity of and from the
Company;
(ii) Padayachee will not, either directly or indirectly, on its own
behalf or on behalf of others, solicit, divert or hire away, or
attempt to solicit, divert, or hire away, any independent
contractor of or any person employed by the Company or persuade
or attempt to persuade any such individual to terminate his or
her contract or employment with the Company; and
(iii)Padayachee will not directly or indirectly impair or seek to
impair any relationship that the Company has with its employees,
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customers, suppliers, agents or other parties with which the
Company does business or has contractual relations.
(f) NO PERSON BENEFIT: Padayachee will not receive or accept for its own
benefits, either directly or indirectly, any commission, rebate,
discount, gratuity or profit from any Person having or proposing to
have one or more business transactions with the Company, without the
prior approval of the Board.
(g) CUSTOMER CONTACTS: During the Service, Padayachee will communicate and
channel to the Company all knowledge, business and customer contacts
and any other information that could concern or be in any way
beneficial to the Business of the Company. Any such information
communicated to the Company as aforesaid will be and remain the
property of the Company notwithstanding the subsequent termination of
the Service.
(h) RETURN OF COMPANY PROPERTY: Upon termination of the Service,
Padayachee will promptly return to the Company all Company property
including all written information, tapes, discs or memory devices and
copies thereof, and any other material on any medium in the possession
or control of Padayachee pertaining to the Business of the Company,
without retaining any copies or records of any Confidential
Information whatsoever. Padayachee will also return any keys, pass
cards, identification cards or other property belonging to the
Company.
(i) REPUTATION: At all times during the Service and thereafter, Padayachee
will not directly or indirectly impair or seek to impair the
reputation of the Company.
(j) PRIOR EMPLOYERS: The Company is not contracting Padayachee, as an
independent contractor, to obtain the confidential information or
business opportunities of any prior employer and Padayachee are hereby
requested and directed by the Company to comply with any obligations
to any prior employer.
5. TERMINATION
If for any reason Padayachee or the Company should wish to terminate this
Agreement prior to the expiry of the Term or any extension thereof, Padayachee
or the Company will provide the other party with 30 days' prior written notice
of such intention.
6. AGREEMENT VOLUNTARY AND EQUITABLE
The parties agree that they each have carefully considered and understand the
terms of the Service contained in this Agreement, that the terms are mutually
fair and equitable, and that they each have executed this Agreement voluntarily
and of their own free will.
7. IRREPARABLE HARM
Padayachee acknowledge and agree that any breach of section 3, subsections 4(c),
4(e), 4(h) or 4(i) of this Agreement by Padayachee will cause irreparable harm
to the Company and in addition to all of the remedies available to the Company
by law, the Company will be entitled to equitable relief including without
limitation, injunctive relief to ensure the compliance of Padayachee with
section 3 and subsections 4(c), 4(e), 4(h), and 4(i) of this Agreement.
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8. ASSIGNMENT AND ENUREMENT
Padayachee may not assign this Agreement, any part of this Agreement or any of
the rights of Padayachee under this Agreement without the prior written consent
of the Company. This Agreement enures to the benefit of and is binding upon
Padayachee and the Company and the respective heirs, executors, administrators,
successors and permitted assigns of Padayachee.
9. SEVERABILITY
If any provision or portion of this Agreement is determined to be invalid or
unenforceable for any reason, then that provision or portion will be severed
from this Agreement. The rest of this Agreement will remain in full force and
effect.
10. ENTIRE AGREEMENT
This Agreement contains the whole agreement between Padayachee and the Company
with respect to the Service, and there are no representations, warranties,
collateral terms or conditions, express or implied, other than as set forth in
this Agreement. This Agreement supersedes any written or oral agreement or
understanding between Padayachee and the Company. No change or modification of
this Agreement will be valid unless it is in written and initialed by all
parties.
11. NOTICE
Any notice required or permitted to be given hereunder must be in written and
will be sufficiently given or made if delivered or sent by registered mail to
the address of the parties set out on page 1 hereof. Any notice so given will be
deemed to have been given and to have been received on the day of delivery if it
is a business day and otherwise on the next succeeding business day or, if
mailed, on the third business day following the mailing thereof (excluding each
day during which there exists any interruption of postal services due to strike,
lockout or other cause). Addresses for notice may be changed by given notice in
accordance with this section.
12. NON-WAIVER
No failure or delay by Padayachee or the Company in exercising any power or
right under this Agreement will operate as a waiver of such power or right. Any
consent or waiver by Padayachee or by the Company to any breach or default under
this Agreement will be effective only in the specific instance and for the
specific purpose for which it was given.
13. SURVIVAL OF TERMS
The Provisions of sections 1, 3, 5 and 7 and of subsections 4(c), 4(e), 4(g),
4(h) and 4(i) of this Agreement
will survive the termination of the Service and this Agreement.
14. PERSONAL INFORMATION
Padayachee's personal information may be disclosed by the Company to (a) stock
exchanges or securities regulatory authorities, (b) the Company's registrar and
transfer agent, and (c) any of the other parties interested in this Agreement,
including legal counsel, and may be included in record books in connection with
this Agreement. By executing this Agreement, Padayachee is deemed to be
consenting to the foregoing collection, use and disclosure of Padayachee's
personal information (and, if applicable, the personal information of those on
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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.
15. FURTHER ASSISTANCE
The parties will execute and deliver any documents and perform any acts
necessary to carry out the intent of this
Agreement.
16. TIME
Time is of the essence of this Agreement.
17. GOVERNING LAWS
This Agreement will be governed by and construed in accordance with the laws of
the State of Nevada. Each party attorns to the exclusive jurisdiction of courts
of competent jurisdiction in the State of Nevada.
18. INDEPENDENT LEGAL ADVICE
Padayachee acknowledges that he has been given an opportunity to seek
independent legal advice with respect to the terms of this Agreement prior to
its execution and have been advised to do so by the Company or having been
advised to obtain independent legal advice and having elected not to do so and
that Padayachee understand the terms and rights and obligations under this
Agreement.
19. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which will
be deemed to be an original and all of which will constitute one Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
LIFE STEM GENETICS INC.
By:
--------------------------------
Name: Gloria Simov
Title: Director and President
Witnessed by: )
)
----------------------------------- ) -------------------------------------
) VINO PADAYACHEE
----------------------------------- )
)
----------------------------------- )
Address )
)
----------------------------------- )
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SCHEDULE "A"
DECLARATION OF REGULATION S ELIGIBILITY
Regulation S of the United States Securities Act of 1933, as amended
("SECURITIES ACT") is available for the use of non-U.S. Persons only. This
Declaration must be answered fully and returned to LIFE STEM GENETICS INC. (the
"COMPANY") to ensure the Company is in compliance with the Securities Act in
connection with the proposed acquisition of securities of the Company (the
"SECURITIES") by the Shareholder (as defined below). All information will be
held in the strictest confidence and used only to determine investor status. No
information will be disclosed other than as required by law or regulation, other
demand by proper legal process or in litigation involving the Company or its
affiliates, controlling persons, officers, directors, partners, employees,
shareholders, attorneys or agents.
I, Vino Padayachee (the "SHAREHOLDER"), HEREBY AFFIRM AND DECLARE THAT:
1. The Shareholder is not a "US Person," as such term is defined in Rule
902(k) of Regulation S which, without restricting the generality of such
definition, includes
(a) a natural person resident in the United States,
(b) a partnership or corporation organized or incorporated under the laws
of the United States,
(c) an estate of which any executor or administrator is a U.S. Person,
(d) a trust of which any trustee is a U.S. Person,
(e) a non-discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary for the benefit of a
U.S. Person,
(f) a discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States, and
(g) a partnership or corporation if
(i) organized or incorporated under the laws of any foreign
jurisdiction, and
(ii) formed by a U.S. Person principally for the purpose of investing
in securities not registered under the 1933 Act, unless it is
organized or incorporated, and owned, by `Accredited Investors'
who are not natural persons, estates or trusts..
2. The Shareholder is not purchasing the Securities for the benefit of a US
Person.
3. The Shareholder is not purchasing the Securities in the name of a company
incorporated in the United States of America or for the benefit of a
company incorporated in the United States of America.
4. The Shareholder is not purchasing the Securities in its capacity as trustee
for a U.S.-based trust.
5. The Shareholder is not purchasing the securities in its capacity as an
executor or administrator of the estate of a U.S. resident.
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6. The Shareholder is not a U.S. resident purchasing the Securities through a
brokerage account located outside of the United States of America, nor is
it using a non-U.S. brokerage account to purchase the Securities for the
benefit of individuals or corporate entities resident within the United
States of America.
7. The Shareholder is not purchasing the Securities as part of a transaction
or series of transactions that, although in technical compliance with the
provisions of Regulation S, is part of a plan or scheme to evade the
registration provisions of the Securities Act and will not engage in
hedging transactions involving the Securities unless such transactions are
in compliance with the Securities Act.
8. The Shareholder is purchasing the Securities as an investment and not with
a view towards resale.
9. It has been called to the Shareholder's attention that this investment
involves a high degree of risk, and no assurances are or have been made
regarding the economic advantages, if any, which may inure to its benefit.
The economic benefit from an investment in the Securities depends on the
ability of the Company to successfully conduct its business activities. The
accomplishment of such goals in turn depends on many factors beyond the
control of the Company or its management. Accordingly, the suitability for
any particular investor in the Securities will depend upon, among other
things, such investor's investment objectives and such investor's ability
to accept speculative risks, including the risk of a total loss of
investment in the Securities. The Shareholder's advisor(s), if any, and the
Shareholder have carefully reviewed and understand the risk of, and other
considerations relating to, an investment in the securities.
10. The Shareholder is able to bear the economic risks of this investment, is
able to hold the Securities for an indefinite period of time, and has
sufficient net worth to sustain a loss of the entire investment in the
Company in the event such loss should occur.
11. The Company has answered all inquiries that the Shareholder has made of it
concerning the Company or any other matters relating to the business and
proposed operation of the Company and the offer and sale of the Securities.
12. The Shareholder will offer, sell or otherwise transfer the Securities only
(A) pursuant to a registration statement that has been declared effective
under the Securities Act, (B) pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S in a
transaction meeting the requirements of Rule 904 (or other applicable Rule)
under the Securities Act, or (C) pursuant to another available exemption
from the registration requirements of the Securities Act, subject to the
Company's right prior to any offer, sale or transfer pursuant to clauses
(B) or (C) to require the delivery of an opinion of counsel, certificates
or other information reasonably satisfactory to the Company for the purpose
of determining the availability of an exemption.
13. To the Shareholder's knowledge, without having made any independent
investigation, neither the Company nor any person acting for the Company,
has conducted any "directed selling efforts" in the United States as the
term "directed selling efforts" is defined in Rule 902 of Regulation S,
which, in general, means any activity undertaken for the purpose of, or
that could reasonably be expected to have the effect of, conditioning the
marketing in the United States for any of the securities being offered.
Such activity includes, without limitation, the mailing of printed material
to investors residing in the United States, the holding of promotional
seminars in the United States, and the placement of advertisements with
radio or television stations broadcasting in the United States or in
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publications with a general circulation in the United States, which discuss
the offering of the securities. To the Shareholder's knowledge, without
having made any independent investigation, the securities were not offered
to it through, and the Shareholder is not aware of, any form of general
solicitation or general advertising, including without limitation, (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
and (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
14. The Shareholder is permitted to purchase the Securities under the laws of
its home jurisdiction.
15. The Shareholder has been independently advised as to the applicable holding
period imposed in respect of the Securities by securities legislation in
the jurisdiction in which it resides and confirms that no representation
has been made respecting the applicable holding periods for the Securities
in such jurisdiction and is aware of the risks and other characteristics of
the Securities and of the fact that holders of such Securities may not be
able to resell such Securities except in accordance with applicable
securities legislation and regulatory policy.
16. The Shareholder understands that if it knowingly and willingly makes false
statements as to eligibility to purchase or resell securities under
Regulation S, it may become subject to civil and criminal proceedings being
taken by the United States Securities and Exchange Commission.
17. The Shareholder has no present intention of becoming, a resident of the
United States (defined as being any natural person physically present
within the United States for at least 183 days in a 12-month consecutive
period or any entity who maintained an office in the United States at any
time during a 12-month consecutive period). The Shareholder understands
that the Company may rely upon the representations and warranty of this
paragraph as a basis for an exemption from registration of the securities
under the Securities Act, and the provisions of relevant state securities
laws.
DATED: March 12, 2014
Witnessed by: )
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) VINO PADAYACHEE
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Address )
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