UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
10-K/A
(Amendment
No. 2)
| þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended August 31,
2014
OR
| ¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file
number: 000-54598
Stellar
Biotechnologies, Inc.
(Exact name of registrant as specified
in its charter)
British Columbia, Canada |
N/A |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
|
|
332 E. Scott Street
Port Hueneme, California |
93041 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number,
including area code: (805) 488-2800
Securities registered pursuant to Section 12(b)
of the Act: None
Securities registered pursuant to Section 12(g)
of the Act:
Common Shares, without par value
Indicate by check mark if the registrant
is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant
is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant
(1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant
has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted
and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such
shorter period that the registrant was required to submit and post such files). Yes ¨ No
¨
Indicate by check mark if disclosure of
delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will
not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference
in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large Accelerated Filer ¨ |
Accelerated Filer x |
Non-Accelerated Filer ¨ |
Smaller Reporting Company ¨ |
Indicate by check mark
whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No x
The aggregate market
value of the voting and non-voting common shares held by non-affiliates of the registrant, computed by reference to the closing
price of the registrant’s common shares on the OTCQB marketplace as of February 28, 2014, the last business day of the registrant’s
most recently completed second fiscal quarter, was approximately $85,585,181, based on 57,827,825 shares at $1.48 per share.
As
of September 1 2015, the registrant had 79,847,550 common shares issued and outstanding.
The registrant has
determined that it no longer qualified as a “foreign private issuer” under Rule 3b-4 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”). As of September 1, 2014, the beginning of the registrant’s fiscal
year, the registrant is now complying with Exchange Act reporting requirements applicable to a U.S. domestic issuer.
Explanatory Note
This Amendment No. 2 to the Annual Report on Form 10-K (the
“Amendment No. 2”) of Stellar Biotechnologies, Inc. (the “Company”) amends the Company’s Annual Report
on Form 10-K for the year ended August 31, 2014 which was filed with the Securities and Exchange
Commission on November 14, 2014 (the “Original Filing”) and amended by Amendment No.1 to the Original Filing on November
21, 2014 (the “Amendment No.1”). The Company is filing this Amendment No. 2 solely to provide Exhibit 4.1, Exhibit
4.2, Exhibit 4.3, Exhibit 4.4, Exhibit 4.5, Exhibit 4.6, Exhibit 4.7, Exhibit 4.8, Exhibit 4.9, Exhibit 4.10, Exhibit 4.11, Exhibit
4.12 and Exhibit 10.18 that were not included in the Original Filing and an updated Exhibit 31.1 and Exhibit 31.2.
This Amendment No. 2 is an exhibit-only filing. Except as described
above, this Amendment No.2 does not amend, modify or update any other information or disclosures set forth in the Original Filing.
Accordingly, this Amendment No. 2 does not reflect any events that occurred subsequent to the filing of the Original Filing and
therefore continues to speak only as of the date of the Original Filing.
PART
IV
| Item 15. | EXHIBITS, FINANCIAL STATEMENTS SCHEDULES. |
(b)
The exhibits listed on the accompanying
Exhibit Index are filed as part of this Amendment No. 2
EXHIBIT INDEX
Exhibit No. |
|
Description |
|
|
|
3.1 |
|
Certificate of Incorporation of the Company, dated June 12, 2007 (included as Exhibit 1(a) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein as referefernce). |
|
|
|
3.2 |
|
Certificate of Amendment, dated April 15, 2008 (included as Exhibit 1(b) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein as reference). |
|
|
|
3.3 |
|
Certificate of Continuation of the Company, dated November 25, 2009 (included as Exhibit 1(c) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
3.4 |
|
Certificate of Name Change of the Company, dated April 7, 2010 (included as Exhibit 1(f) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
3.5 |
|
Notice of Articles of the Company, dated April 7, 2010 (included as Exhibit 1(g) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated by reference). |
|
|
|
3.6 |
|
Articles of the Company, effective November 20, 2009 (included as Exhibit 1(h) to the Company’s Registration Statement on February 3, 2012, incorporated herein by reference.). |
|
|
|
4.1 |
|
Form of Warrant dated October 25, 2012 (filed herewith).
|
|
|
|
4.2 |
|
Form of Agent Option dated October 25, 2012 (filed
herewith).
|
|
|
|
4.3 |
|
Form of Subscription Agreement dated October 25, 2012 (filed herewith).
|
|
|
|
4.4 |
|
Form of Warrant dated January 2, 2013 (filed herewith).
|
|
|
|
4.5 |
|
Form of Agent Option dated January 2, 2013 (filed herewith).
|
|
|
|
4.6 |
|
Form
of Subscription Agreement dated January 2, 2013 (filed herewith).
|
|
|
|
4.7 |
|
Form of Warrant dated September 9, 2013 (filed
herewith).
|
|
|
|
4.8 |
|
Form of Broker Warrant dated September 9, 2013 (filed
herewith).
|
|
|
|
4.9 |
|
Form
of Warrant dated September 20, 2013 (filed herewith).
|
|
|
|
4.10 |
|
Form of Broker Warrant dated September 20, 2013 (filed
herewith).
|
|
|
|
4.11 |
|
Form of Non-brokered Subscription Agreement dated September 9, 2013 and September 20, 2013 (filed
herewith).
|
|
|
|
4.12 |
|
Form of Brokered Subscription Agreement dated September 9, 2013 and September 20, 2013 (filed
herewith).
|
|
|
|
10.1 |
|
Patent Assignment Agreement between the Company and Frank Oakes, dated August 14, 2002 (included as Exhibit 4(a) to the Company’s Registration Statement on From 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
10.2 |
|
Sublease Agreement between the Company and the Port Hueneme Surplus Property Authority, dated October 2, 2000 (included as Exhibit 4(j) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
10.3 |
|
Sublease Agreement between the Company and the Port Hueneme Surplus Property Authority, dated March 21,, 2005 (included as Exhibit 4(k) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, incorporated herein by reference). |
|
|
|
10.4 |
|
Lease Agreement between the Company and Beachport Center, dated March 29, 2011 (included as Exhibit 4(l) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
10.5 |
|
Supply Agreement between the Company and Neovacs S.A. for KLH raw material, effective January 1, 2008 (included as Exhibit 4(14) to the Company’s Amendment No. 2 to its Registration Statement on Form 20-F filed on July 5, 2012, and incorporated herein by reference). |
|
|
|
10.6 |
|
Supply Agreement between the Company and Neovacs S.A. for KLH raw material, effective January 1, 2008 (included as Exhibit 4(15) to the Company’s Amendment No.2 to its Registration Statement on Form 20-F filed on July 5, 2012, and incorporated herein by reference). |
|
|
|
10.7 |
|
Research Collaboration Agreement between the Company and Bayer Innovation GmbH, dated August 27, 2009 (included as Exhibit 4(16) to the Company’s Amendment No.2 to its Registration Statement on Form 20-F filed on July 5, 2012, and incorporated herein by reference). |
10.8 |
|
Agreement between the Company and Life Diagnostics, effective October 18, 2011 (included as Exhibit 4(18) to the Company’s Amendment No. 2 to its Registration Statement on Form 20-F filed on July 5, 2012, and incorporated herein by reference). |
|
|
|
10.9# |
|
License Agreement between the Company and University of Guelph, dated July 24, 2013 (included as Exhibit 99.1to the Company’s Report on Form 6-K filed on August 30, 2013, and incorporated herein by reference). |
|
|
|
10.10 |
|
Share Option Plan, as Amended, dated December 13, 2011 (included as Exhibit 10(b) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein as reference). |
|
|
|
10.11 |
|
Fixed Share Option Plan dated December 18, 2013 (included as Exhibit 10.11 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.12 |
|
Shareholder’s Rights Plan, as Amended, dated January 9, 2014 (included as Exhibit 10.12 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.13@ |
|
Performance Share Plan dated April 9, 2010 (included as Exhibit 10(d) to the Company’s Registration Statement on Form 20-F filed on February 3, 2012, and incorporated herein by reference). |
|
|
|
10.14 |
|
Advance Notice Policy, adopted October 31, 2013 (included as Exhibit 10.14 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.15 |
|
Amendment One to the Lease Agreement between the Company and Beachport Center, dated June 24, 2014 (included as Exhibit 10.15 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.16 |
|
Sublease Amendment No. 2 to Sublease Agreement between the Company and the Port Hueneme Surplus Property Authority, dated October 2, 2000 (included as Exhibit 10.16 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.17 |
|
Sublease Amendment No. 1 to Sublease between the Company and the Port Hueneme Surplus Property Authority, dated March 21, 2005 (included as Exhibit 10.17 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
10.18 |
|
Collaboration Agreement by and between Stellar Biotechnologies, Inc. and Amaran Biotechnology, Inc. dated
December 7, 2013 (filed herewith).
|
|
|
|
14.1 |
|
Code of Ethics and Business Conduct (included as Exhibit 99.4 to the Company’s Report on Form 6-K filed on August 14, 2014, and incorporated herein by reference). |
|
|
|
21 |
|
Subsidiaries of Stellar Biotechnologies, Inc. (included as Exhibit 21 to the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
31.1 |
|
Certification of the Chief Executive Officer pursuant to Rule 13a-14(a) under the Securities and Exchange
Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
|
|
|
|
31.2 |
|
Certification of the Chief Financial Officer pursuant to Rule 13a-14(a) under the Securities and Exchange
Act of 1934, as adopted pursuant to section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith).
|
|
|
|
32.1 |
|
Certificate of the Chief Executive Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section
906 of the Sarbanes-Oxley Act of 2002 (included as Exhibit 32.1 of the Company’s Annual Report on Form 10-K filed on November
14, 2014, and incorporated herein by reference).
|
|
|
|
32.2 |
|
Certificate of the Chief Financial Officer pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (included as Exhibit 32.2 of the Company’s Annual Report on Form 10-K filed on November 14, 2014, and incorporated herein by reference). |
|
|
|
101.INS |
|
XBRL Instance Document.* |
|
|
|
101.SCH |
|
XBRL Taxonomy Extension Schema Document.* |
|
|
|
101.CAL |
|
XBRL Taxonomy Calculation Linkbase Document.* |
|
|
|
101.DEF |
|
XBRL Taxonomy Extension Definition Linkbase Document.* |
|
|
|
101.LAB |
|
XBRL Taxonomy Label Linkbase Document.* |
|
|
|
101.PRE |
|
XBRL Taxonomy Presentation Linkbase Document.* |
| @ | Management contract or compensatory plan or arrangement |
| # | Confidential treatment has been granted for certain portions
of this exhibit. Original copies have been filed separately with the Securities and Exchange Commission pursuant to Rule 24B-2
of the Securities Exchange Act of 1934, as amended. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of
the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Date: September 9, 2015 |
|
STELLAR BIOTECHNOLOGIES, INC. |
|
|
|
|
|
By: |
/s/ Kathi Niffenegger |
|
|
Name: Kathi Niffenegger
Title: Chief Financial Officer |
Exhibit 4.1
UNLESS PERMITTED
UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY
BEFORE FEBRUARY 26, 2013.
WITHOUT PRIOR APPROVAL OF THE TSX VENTURE
EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON
OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL FEBRUARY
26, 2013.
THIS WARRANT CERTIFICATE IS VOID IF NOT
EXERCISED ON OR BEFORE 5:00 P.M. (PACIFIC TIME) ON OCTOBER 25, 2015.
WARRANT CERTIFICATE
(Relating to a Private
Placement Announced on October 15, 2012)
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws
of the Province of British Columbia)
WARRANT
CERTIFICATE NO. 2012-__ |
__________WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
THIS IS TO CERTIFY THAT
_____________ of ____________________________________ (hereinafter referred to as the "holder" or the "Warrantholder")
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific time) (the "Expiry Time") on October 25, 2015
(the “Expiry Date”), one fully paid and non-assessable common share ("Common Share") in the
capital of STELLAR BIOTECHNOLOGIES, INC. (the "Company").
These Warrants
may only be exercised at the business office of the Company at 332 E. Scott Street, Port Hueneme, California 93041.
These Warrants are issued
subject to the terms and conditions appended hereto as Schedule "A".
IN WITNESS WHEREOF, the
Company has caused this Warrant Certificate to be executed by a duly authorized director of the Company.
DATED for reference the
25th day of October, 2012.
|
STELLAR BIOTECHNOLOGIES, INC. |
|
|
|
Per: |
|
|
|
Scott Davis, Chief Financial Officer |
(See terms and conditions attached hereto)
SCHEDULE "A"
TERMS AND CONDITIONS FOR WARRANT
(Relating to a Private
Placement Announced on October 15, 2012)
Terms and Conditions attached to the Warrant issued by STELLAR
BIOTECHNOLOGIES, INC.. (the “Company”) and dated for reference the 25th day
of October, 2012.
ARTICLE
1
INTERPRETATION
In these Terms and Conditions, unless there
is something in the subject matter or context inconsistent therewith:
| (a) | "Common Shares" means the common shares in the capital of the Company to be issued pursuant to the exercise
of Warrants; |
| (b) | "Company" means STELLAR BIOTECHNOLOGIES, INC. unless and until a successor corporation shall have become
such in the manner prescribed in Article 6, and thereafter "Company" shall mean such successor corporation; |
| (c) | "Company's Auditors" means an independent firm of accountants duly appointed as auditors of the Company; |
| (d) | "Exchange" means the TSX Venture Exchange or such other stock exchange on which the Company's Common Shares
are listed and posted for trading; |
| (e) | “Exercise Date” has that meaning ascribed to that term in Section 3.2 of this Schedule “A”; |
| (f) | "Exercise Price" means the price of $0.40 per share if exercised on or before October 25, 2015; |
| (g) | "Expiry Time" means 5:00 p.m. (Pacific Time) on the Expiry Date; |
| (h) | “Expiry Date” means October 25, 2015. |
| (i) | "herein", "hereby" and similar expressions refer to these Terms and Conditions as the same
may be amended or modified from time to time; and the expression "Article" and "Section" followed by a number
refer to the specified Article or Section of these Terms and Conditions; |
| (j) | "Issue Date" means the issue date of the Warrant shown on the face page of the Warrant Certificate; |
| (k) | "person" means an individual, corporation, partnership, trustee or any unincorporated organization and words
importing persons have a similar meaning; |
| (l) | “Subscription Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”; |
| (m) | "Warrant" means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and |
| (n) | "Warrant Certificate" means the certificate to which these Terms and Conditions are attached. |
| 1.2 | Interpretation Not Affected by Headings |
| (a) | The division of these Terms and Conditions into Articles and Sections, and the insertion of headings
are for convenience of reference only and shall not affect the construction or interpretation thereof. |
| (b) | Words importing the singular number include the plural and vice versa and words importing the masculine
gender include the feminine and neuter genders. |
The terms hereof and
of the Warrant shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada.
ARTICLE 2
ISSUE OF WARRANT
That number of Warrants
set out on the Warrant Certificate are hereby created and authorized to be issued.
Subject to
any other written agreement between the Company and the Warrantholder, the Company may at any time and from time to time undertake
further equity or debt financing and may issue additional Common Shares, warrants or grant options or similar rights to purchase
Common Shares to any person.
| 2.3 | Issue in Substitution for Lost Warrants |
If the Warrant Certificate becomes
mutilated, lost, destroyed or stolen:
| (a) | the Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one
mutilated, lost, destroyed or stolen, in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed
or stolen Warrant Certificate; and |
| (b) | the holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case
of the loss, destruction or theft of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction,
or theft as shall be satisfactory to the Company in its discretion and the Company may also require the holder to furnish indemnity
in an amount and form satisfactory to the Company in its discretion, and shall pay the reasonable charges of the Company in connection
therewith. |
| 2.4 | Warrantholder Not a Shareholder |
The Warrant shall not
constitute the holder a shareholder of the Company, nor entitle it to any right or interest in respect thereof except as may be
expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE
WARRANT
| 3.1 | Method of Exercise of the Warrant |
The right to purchase
Common Shares conferred by the Warrant Certificate may be exercised, prior to the Expiry Time, by the holder surrendering this
Warrant Certificate, with a duly completed and executed subscription form substantially in the form attached hereto as Schedule
"B" (the “Subscription Form”) and a certified cheque, bank draft or a money order payable to or to
the order of the Company, for the Exercise Price applicable at the time of surrender in respect of the Common Shares subscribed
for in lawful money of Canada, to the Company.
| 3.2 | Effective Date of Exercise of the Warrant |
This Warrant Certificate
together with such Exercise Form, certified cheque, bank draft or money order will be deemed to be so surrendered and exercised
only upon actual receipt thereof by the Company as set out above (the “Exercise Date”).
| 3.3 | Effect of Exercise of the Warrant |
| (a) | Upon surrender and payment as aforesaid the Common Shares so subscribed for shall be issued as
fully paid and non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such
surrender and payment; and |
| (b) | Within five business days after surrender and payment as aforesaid, the Company shall forthwith
cause the issuance to the holder of a certificate for the Common Shares purchased as aforesaid. |
| 3.4 | Subscription for Less than Entitlement |
The holder may subscribe
for and purchase a number of Common Shares less than the number which it is entitled to purchase pursuant to the surrendered Warrant
Certificate. In the event of any purchase of a number of Common Shares less than the number which can be purchased pursuant to
the Warrant Certificate, the holder shall be entitled to receive a new Warrant Certificate with respect to the remaining balance
of the Common Shares purchasable under this Warrant Certificate.
| 3.5 | Expiration of the Warrant |
After the Expiry Time
all rights hereunder shall wholly cease and terminate and the Warrant shall be void and of no effect.
| 3.6 | Hold Periods and Legending of Share Certificate |
If any of the Warrants
are exercised prior to February 26, 2013, the certificates representing the Common Shares to be issued pursuant to such exercise
shall bear the following legends:
“Unless
permitted under securities legislation, the holder of the securities shall not trade the securities before February 26, 2013.”
“Without prior written
approval of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this
certificate may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange
or otherwise in Canada or to or for the benefit of a Canadian resident until February 26, 2013.”
ARTICLE 4
ADJUSTMENTS
The number of Common Shares purchasable upon
the exercise of each Warrant and the Exercise Price shall be subject to adjustment as follows:
| (a) | in the event the Company shall: |
| (i) | pay a dividend in Common Shares or make a distribution in Common Shares; |
| (ii) | subdivide its outstanding Common Shares; |
| (iii) | combine its outstanding Common Shares into a smaller number of Common Shares; or |
| (iv) | issue by reclassification of its Common Shares other securities of the Company (including any such
reclassification in connection with a consolidation, merger, amalgamation or other combination in which the Company is the surviving
corporation); |
the number
of Common Shares (or other securities) purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so
that the Warrantholder shall be entitled to receive the kind and number of Common Shares or other securities of the Company which
it would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant
been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant
to this subsection (a) shall become effective immediately after the effective date of such event retroactive to the record date,
if any, for such event.
| (b) | In case the Company shall issue rights, options or warrants to all or substantially all holders
of its outstanding Common Shares, without any charge to such holders, entitling them (for a period within 45 days after the record
date mentioned below) to subscribe for or purchase Common Shares at a price per share which is lower than 95% of the current market
price at the record date mentioned below than the then current market price per Common Share (as determined in accordance with
subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined
by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of which the denominator shall be the number of Common Shares
outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at the current market price per Common Share at such record
date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective immediately
after the record date for the determination of shareholders entitled to receive such rights, options or warrants. |
| (c) | In case the Company shall distribute to
all or substantially all holders of its Common Shares evidences of its indebtedness or assets (excluding cash dividends or distributions
payable out of consolidated earnings or earned surplus and dividends or distributions referred to in subsection (a) above
or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities containing the right to subscribe
for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in each case the number of Common Shares
thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of Common Shares theretofore
purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall be the then current market price per
Common Share (as determined in accordance with subsection (d) below) on the date of such distribution, and of which the denominator
shall be the then current market price per Common Share less the then fair value (as determined by the board of directors of the
Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights,
options or warrants, or of such convertible or exchangeable securities applicable to one Common Share. Such adjustment shall be
made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to the record date
for the determination of shareholders entitled to receive such distribution. |
In the event
of the distribution by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or
securities convertible or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable
upon the exercise of each Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company,
such subsidiary or both, as the Company shall reasonably determine, the shares or other securities to which such Warrantholder
would have been entitled if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment
as provided in this section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other
securities shall be made during the term of a Warrant or upon the exercise of a Warrant.
| (d) | For the purpose of any computation under subsections (b) and (c) of this section 4.1, the current
market price per Common Share at any date shall be the weighted average price per Common Share for twenty-five (25) consecutive
trading days, commencing not more than 45 trading days before such date on the stock exchange on which the Common Shares are then
traded; provided if the Common Shares are then traded on more than one stock exchange, then on the stock exchange on which the
largest volume of Common Shares were traded during such twenty-five (25) consecutive trading day period. The weighted average price
per Common Share shall be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market,
as the case may be, during the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes
of this subsection (d), trading day means, with respect to a stock exchange, a day on which such exchange is open for the transaction
of business. Should the Common Shares not be listed on any stock exchange the current market price per Common Share at any date
shall be determined by the board of directors of the Company, acting reasonably. |
| (e) | In any case in which this Article 4 shall require that any adjustment in the Exercise Price be
made effective immediately after a record date for a specified event, the Company may elect to defer until the occurrence of the
event the issuance, to the holder of any Warrant exercised after that record date, of the Common Shares and other shares of the
Company, if any, issuable upon the exercise of the Warrant over and above the Common Shares and other shares of the Company; provided,
however, that the Company shall deliver to the holder an appropriate instrument evidencing the holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment. |
| (f) | No adjustment in the number of Common Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by reason of this subsection (f) are not required to be
made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share. |
| (g) | Wherever the number of Common Shares purchasable upon the exercise of each Warrant is adjusted,
as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Common Shares purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Common Shares
purchasable immediately thereafter. |
| (h) | No adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need
be made under subsections (b) and (c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants,
or convertible or exchangeable securities, or evidences of indebtedness or assets referred to in those subsections which the Warrantholder
would have been entitled to receive had the Warrants been exercised prior to the happening of such event or the record date with
respect thereto. |
| (i) | In the event that at any time, as a result of an adjustment made pursuant to subsection (a) above,
the Warrantholder shall become entitled to purchase any securities of the Company other than Common Shares, thereafter the number
of such other shares so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares
contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this
Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities. |
| (j) | Upon the expiration of any rights, options, warrants or conversion or exchange privileges, if any
thereof shall not have been exercised, the Exercise Price and the number of Common Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if: |
| (i) | the only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversion or exchange rights; and |
| (ii) | such Common Shares, if any, were issued or sold for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any, actually received by the Company for the issuance, sale or
grant of all such rights, options, warrants or conversion or exchange rights whether or not exercised; |
provided further,
that no such readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable
upon the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange rights.
| 4.2 | Voluntary Adjustment by the Company |
Subject to requisite
Exchange approval, the Company may, at its option, at any time during the term of the Warrants, reduce the then current Exercise
Price to any amount deemed appropriate by the Board of Directors of the Company.
Whenever the number of
Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of such Common Shares is adjusted, as herein
provided, the Company shall promptly send to the Warrantholder by first class mail, postage prepaid, notice of such adjustment
or adjustments.
| 4.4 | No Adjustment for Dividends |
Except as provided in
section 4.1 of this Article 4, no adjustment in respect of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
| 4.5 | Preservation of Purchase Rights Upon Merger, Consolidation,
etc. |
In connection with any
consolidation of the Company with, or amalgamation or merger of the Company with or into, another corporation (including, without
limitation, pursuant to a "takeover bid", "tender offer" or other acquisition of all or substantially all of
the outstanding Common Shares) or in case of any sale, transfer or lease to another corporation of all or substantially all the
property of the Company, the Company or such successor or purchasing corporation, as the case may be, shall execute with the Warrantholder
an agreement that the Warrantholder shall have the right thereafter, upon payment of the Exercise Price in effect immediately prior
to such action, to purchase upon exercise of each Warrant the kind and amount of shares and other securities and property which
it would have owned or have been entitled to receive after the happening of such consolidation, amalgamation, merger, sale, transfer
or lease had such Warrant been exercised immediately prior to such action, and the Warrantholder shall be bound to accept such
shares and other securities and property in lieu of the Common Shares to which it was previously entitled; provided, however, that
no adjustment in respect of dividends, interest or other income on or from such shares or other securities and property shall be
made during the term of a Warrant or upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in this Schedule "A". The provisions of
this Article 4 shall similarly apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
| 4.6 | Determination of Adjustments |
If any questions shall
at any time arise with respect to the Exercise Price, such question shall be conclusively determined by the Company's Auditors,
or, if they decline to so act, any other firm of Chartered Accountants, in Toronto, Ontario, that the Company may designate and
the Warrantholder, acting reasonably, may approve, and who shall have access to all appropriate records and such determination
shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY
THE COMPANY
| 5.1 | Reservation of Common Shares |
The Company will reserve
and there will remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights of acquisition
provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
| 6.1 | Company May Consolidate, etc. on Certain Terms |
Nothing herein contained
shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations, or a
conveyance or transfer of all or substantially all the properties and estates of the Company as an entirety to any corporation
lawfully entitled to acquire and operate same, provided, however, that the corporation formed by such consolidation, amalgamation
or merger or which acquires by conveyance or transfer all or substantially all the properties and estates of the Company as an
entirety shall, simultaneously with such amalgamation, merger, conveyance or transfer, assume the due and punctual performance
and observance of all the covenants and conditions hereof to be performed or observed by the Company.
| 6.2 | Successor Company Substituted |
In case the Company,
pursuant to section 6.1 shall be consolidated, amalgamated or merged with or into any other corporation or corporations or shall
convey or transfer all or substantially all of its properties and estates as an entirety to any other corporation, the successor
corporation formed by such consolidation or amalgamation, or into which the Company shall have been consolidated, amalgamated or
merged or which shall have received a conveyance or transfer as aforesaid, shall succeed to and be substituted for the Company
hereunder and such changes in phraseology and form (but not in substance) may be made in the Warrant Certificate and herein as
may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
This Warrant Certificate may only be amended
by a written instrument signed by the parties hereto.
ARTICLE 8
MISCELLANEOUS
Time is of the essence of the terms
of this Warrant Certificate.
Any notice or other communication to be given
in connection with this Warrant Certificate must be in writing and given by personal delivery to the following addresses:
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For the Company: |
Stellar Biotechnologies, Inc.
332 E. Scott Street
Port Hueneme, California 93041 |
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For the Warrantholder: |
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Subject to applicable
securities legislation and the rules, policies, notices and orders issued by applicable securities regulatory authorities, including
the TSX Venture Exchange (or any other stock exchange on which the Common Shares are listed), the Warrants evidenced hereby (or
any portion thereof) may be assigned or transferred by the holder by duly completing and executing the transfer form attached hereto
as Schedule “C”. The rights and obligations of the parties hereunder shall be binding upon and enure to the benefit
of their successors and permitted assigns.
SCHEDULE "B"
SUBSCRIPTION FORM
(Private Placement Announced
October 15, 2012)
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
The undersigned Holder
of the within Warrants hereby subscribes for common
shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) pursuant
to the within Warrants at $0.40 per Common Share on the terms specified in the said Warrants. This subscription is accompanied
by a certified cheque or bank draft payable to or to the order of the Company for the whole amount of the purchase price of the
Common Shares.
In connection with this subscription:
(check one):
1. ¨ |
The undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
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2. ¨ |
The undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Company to the effect that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the U.S. Securities Act and applicable state securities laws or are exempt from registration thereunder. |
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3. ¨ |
The undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act) that purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account or the account of another Accredited Investor, (ii) it is exercising the Warrants for its own account or the account of such other Accredited Investor, (iii) it remains an Accredited Investor on the date of exercise of the Warrants, and (iv) if the Warrants are being exercised on behalf of another person, such person was an Accredited Investor on the date the undersigned purchased the Warrants from the Company for its account and remains an Accredited Investor on the date of exercise of the Warrants. |
Note: The Common Shares
will not be registered or delivered to a U.S. address unless the undersigned has checked box 2 or box 3 above and satisfied the
applicable requirements thereof. A legend will be placed on any Common Shares issued pursuant to box 2 or box 3 above to the effect
that the Common Shares may not be transferred except pursuant to an exemption from registration under the U.S. Securities Act and
all applicable state securities laws.
The undersigned hereby directs that the Common Shares
be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this
day of ,
20 .
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Warrant Certificate. |
| 2. | If there is more than one holder of the Warrants, all holders must sign. |
| 3. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE
"C"
TRANSFER FORM
(Private Placement Announced
October 15, 2012)
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name), of
(address),
Warrants of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) registered in the name of the undersigned on
the records of the Company represented by the within warrant certificate and irrevocably appoints the
attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.
The undersigned hereby certifies that the
transfer of these securities is not being made to, and the offer of these securities was not made to, and the person named above
is not, a person in the United States (as such term is defined in Regulation S under the United States Securities Act of 1933,
as amended).
DATED
this day
of,
, 20 _.
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(Witness) |
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(Signature of Registered Warrant Holder) |
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(Print name of Registered Warrant Holder) |
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Signature of transferor guaranteed by:
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* |
* Authorized Signature Number |
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NOTE: The signature of the Holder to this
assignment must correspond exactly with the name of the Holder as set forth on the face of this Warrant certificate in every particular,
without alteration or enlargement or any change whatsoever and the signature must be guaranteed by a Canadian chartered bank or
by a Canadian trust company or by a medallion signature guarantee from a member of a recognized Signature Medallion Guarantee Program.
Instructions:
| 1. | Signature of transferor must be the signature of the person appearing on the face of the Warrant
Certificate. |
| 2. | If there is more than one person appearing on the face of the Warrant Certificate, all must sign. |
| 3. | If the Transfer of Warrants is signed by a trustee, executor, administrator, curator, guardian,
attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied
by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of transfer are being forwarded by mail, registered mail must be employed. |
Exhibit 4.2
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE FEBRUARY 26, 2013.
WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX
VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE
IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL FEBRUARY 26, 2013.
THESE OPTIONS AND THE SECURITIES DELIVERABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION
S UNDER THE SECURITIES ACT.
____________
OPTIONS
OPTION CERTIFICATE
STELLAR BIOTECHNOLOGIES, INC.
332 E. Scott Street
Port Hueneme, California 93041
Tel: (805) 488-2800 / Fax: (805)
488-2889
THESE OPTIONS ARE NON-TRANSFERABLE.
THIS CERTIFIES that, for value received:
__________________________
__________________________
__________________________
(hereinafter referred to as the "Holder")
is the registered holder of that number of Options (collectively,
the "Options") of Stellar Biotechnologies, Inc. (the "Issuer") set forth above.
Underlying Securities and Exercise Terms
Subject to adjustment as herein provided,
each Option entitles the Holder to purchase one unit (collectively, the "Units") of the Issuer at a price of CDN$0.25
per Unit until 5:00 pm (Pacific Time) on October 25, 2015. Each Unit shall be comprised of one common share (collectively, the
"Shares") of the Issuer as constituted on October 25, 2012, and one non-transferable share purchase warrant (collectively,
the "Warrants"). Each Warrant shall entitle the holder thereof to purchase one common share (collectively, the "Warrant
Shares") of the Issuer as constituted on October 25, 2012, at a price of CDN$0.40 per Warrant Share if exercised on or before
5:00 pm (Pacific Time) on October 25, 2015. The form of certificate representing the Warrants shall be as attached hereto as Schedule
"B". The Options, Shares, Warrants and Warrant Shares are collectively referred to herein as the "Securities".
The Issuer covenants that the Shares, when
issued upon the due exercise of the Options, will be fully paid and non- assessable securities, and will be free and clear of all
liens, charges and encumbrances. The Issuer covenants that, until the expiry of the Options, it will have reserved a sufficient
number of common shares to provide for the exercise of the rights represented by the Options and the underlying Warrants issuable
on exercise thereof.
Options Exercise Procedure
The Options may be exercised at any time
prior to the expiry of the Options by surrendering to the Issuer:
| (a) | this Option Certificate; |
| (b) | the Subscription Form attached as Schedule "A" hereto, duly completed and executed; and |
| (c) | a certified cheque, bank draft, money order or wire transfer made payable to the Issuer in the aggregate amount of the exercise
price, |
at its head office stated above or such
other office or agency of the Issuer as it may designate by notice in writing delivered to the Holder at the Holder's address stated
above. Upon the due exercise of the Options, the Issuer shall issue or cause to be issued the requisite number of Units to be issued
to the Holder pursuant to said exercise, registered in the name of the Holder or such other person as may be specified in the Subscription
Form, and each such person shall be deemed the holder of such Units with effect from the date of such exercise. If Units are to
be issued to a person other than the Holder, the Holder's signature on the Subscription Form must be guaranteed by a Canadian chartered
bank, a Canadian trust company or a member firm of the TSX Venture Exchange. The Issuer will cause the certificates representing
such Shares and Warrants to be mailed to the Holder at the Holder's address stated above or such other address(es) as may be specified
in the Subscription Form, within five business days of the exercise of the Options.
Upon the due exercise of an Option, the
Option shall be deemed tendered for purposes thereof by the Holder without further notice or action by the Holder, and all rights
under such Option, other than the right to receive certificates representing the Shares and Warrants to which the Holder is entitled
on such exercise, shall wholly cease and terminate and such Option shall be void and of no further effect or value.
Partial Exercise, Exchange and
Replacement of Certificates
The Options represented by this Option
Certificate may be exercised in whole or in part from time to time. If the Options are exercised in part, the Issuer shall deliver,
with the Units issued pursuant to such exercise, a new Option Certificate representing the balance of the Options remaining unexercised.
This Option Certificate may be exchanged,
upon its surrender to the Issuer and payment of such administration fee, not exceeding CDN$10.00, as the Issuer may require, for
new Option Certificates of like tenor in denominations which in the aggregate represent the number of Options represented hereby.
If this Option Certificate is lost, stolen,
mutilated or destroyed, the Issuer may on such reasonable terms as it may in its discretion impose, including but not limited to
the payment of any administration fee, not exceeding CDN$10.00, and the provision of any indemnity by the Holder, issue and countersign
a new Option Certificate of like tenor, denomination and date as the Option Certificate so lost, stolen, mutilated or destroyed.
All Options shall rank pari passu, notwithstanding
the actual date of issue thereof.
Holding of Options
The Issuer may treat the Holder as the
absolute owner of the Options represented hereby for all purposes, and the Issuer shall not be affected by any notice or knowledge
to the contrary except where the Issuer is required to take notice by statute or by order of a court of competent jurisdiction.
Nothing in this Option Certificate or in
the holding of an Option evidenced hereby shall be construed as conferring upon the Holder any right or interest whatsoever as
a shareholder of the Issuer or entitle the Holder to any right or interest in respect of any Shares except as herein expressly
provided.
Resale Restrictions and Legending Of Certificates
The Options have been, and the Shares,
Warrants and Warrant Shares will be, issued pursuant to an exemption (an "Exemption ") from the registration and prospectus
requirements of applicable securities law. To the extent that the Issuer relies on such Exemption, the Shares, Warrants and Warrant
Shares may be subject to restrictions on resale and transferability contained in applicable securities laws.
In the event that any of the Securities
are subject to a hold period, or any other restrictions on resale and transferability, the Issuer may place a legend on the certificates
representing the Securities as may be required under applicable securities laws, or as it may otherwise deem necessary or advisable.
Capital Adjustments
If at any time after the date hereof and
prior to the expiry of the Options, and provided that any Options remain unexercised, there shall be:
| (a) | a reclassification of the Issuer's common shares, a change in the Issuer's common shares into other
shares or securities, a subdivision or consolidation of the Issuer's common shares into a greater or lesser number of common shares,
or any other capital reorganization, or |
| (b) | a consolidation, amalgamation or merger of the Issuer with or into any other corporation other
than a consolidation, amalgamation or merger which does not result in any reclassification of the Issuer's outstanding common shares
or a change of the Issuer's common shares into other shares or securities, |
(any of such events being called a "Capital
Reorganization") any Holders who shall thereafter acquire Securities pursuant to the Options shall be entitled to receive,
at no additional cost, and shall accept in lieu of the number of Securities to which such Holder was theretofore entitled to acquire
upon such exercise, the aggregate number of shares, other securities or other property which such Holder should have been entitled
to receive as a result of such Capital Reorganization if, on the effective date or record date thereof as the case may be, the
Holder had been the registered holder of the number of Securities to which such Holder was theretofore entitled to acquire upon
exercise of the Options. If determined appropriate by the Issuer acting reasonably, appropriate adjustments shall be made in the
application of the provisions set forth herein with respect to the rights and interests of the Holder relative to a Capital Reorganization,
to the end that the provisions set forth herein shall correspond as nearly as may be reasonably possible to the effect of the Capital
Reorganization in relation to any shares, other securities or other property thereafter deliverable upon the exercise of any Options.
In case the Issuer, after the date hereof,
shall take any action affecting any securities of the Issuer, other than as previously set out herein, which in the opinion of
the directors would materially affect the rights and interests of the Holder hereunder, the number of Securities or other securities
which shall be issuable on the exercise of the Options shall be adjusted in such manner, if any, and at such time as the directors,
in their sole discretion, may determine to be equitable in the circumstances, provided that no such adjustment will be made unless
all necessary regulatory approvals, if any, have been obtained. In the event of any question arising with respect to any adjustment
provided for herein, such question shall be conclusively determined by a firm of chartered accountants appointed by the Issuer
at its sole discretion (who may be the Issuer's auditors) and any such determination shall be binding upon the Issuer and the Holder.
No adjustment shall be made in respect
of any event described herein if the Holder is entitled to participate in such event on the same terms, without amendment, as if
the Holder had exercised the Options prior to or on the effective date or record date of such event. The adjustments provided for
herein are cumulative and such adjustments shall be made successively whenever an event referred to herein shall occur, subject
to the limitations provided for herein. No adjustment shall be made in the number or kind of Securities or other securities which
may be acquired on the exercise of an Option unless it would result in a change of at least one-tenth of a Security or other security.
Any adjustment which may by reason of this paragraph not be required to be made shall be carried forward and then taken into consideration
in any subsequent adjustment.
Notwithstanding any adjustments provided
for herein or otherwise, the Issuer shall not be required, upon the exercise of any Options, to issue fractional Securities or
other securities in satisfaction of its obligations hereunder and, except as provided for herein, any fractions shall be eliminated.
To the extent that the Holder would otherwise be entitled to acquire a fraction of a Security or other security, such right may
be exercised in respect of such fraction only in combination with other rights which in the aggregate entitle the Holder to acquire
a whole number of Securities or other securities. The Holder shall be entitled, upon the elimination of any fraction of a Security
or other security, to be paid in cash for the fair market value for the securities so eliminated. always provided that the Issuer
shall not be required to make any payment if for less than CDN$10.00.
Miscellaneous Provisions
Any delivery or surrender of documents
shall be valid and effective if delivered personally or if sent by registered letter postage prepaid. and any notice shall be valid
and effective if made in writing and transmitted as aforementioned or if transmitted by facsimile with confirmed receipt, in each
case addressed to:
Stellar Biotechnologies, Inc.
332 E. Scott Street
Port Hueneme, California 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
| (b) | if to the Holder, at its address appearing on page 1 of this Option Certificate, |
and such shall be deemed to have been effectively
made and received on the date of personal delivery, if delivered; on the fourth business day after the time of mailing or upon
actual receipt, whichever is sooner, if sent by registered letter (except the delivery of documents to exercise the Options, in
which case actual receipt is required); or on the first business day after the time of facsimile transmission. if sent by facsimile.
In the case of a disruption in postal services, any delivery or surrender of documents or notice sent by mail shall not be deemed
to have been effectively made or received until it is actually delivered. The Issuer and the Holder may from time to time change
their address for service hereunder by notice in writing delivered in one of the foregoing manners.
Except as herein provided, any and all
of the rights conferred upon the Holder herein may be enforced by the Holder through appropriate legal proceedings. No recourse
under or upon any covenant, obligation or agreement herein contained shall be had against any shareholder, officer or director
of the Issuer, either directly or through the Issuer, it being expressly agreed and declared that the obligations under the Options
are solely corporate obligations of the Issuer and no personal liability whatsoever shall attach to or be incurred by the shareholders,
officers or directors of the Issuer in respect thereof. This Option Certificate shall be binding upon the Issuer and its successors.
This Option Certificate shall be governed
in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The parties hereby attorn
to the jurisdiction of the courts of the Province of British Columbia in the event of any dispute hereunder. Time shall be of the
essence hereof.
IN WITNESS WHEREOF the Issuer has caused
this Option Certificate to be signed by its duly authorized officer on October 25, 2012.
STELLAR BIOTECHNOLOGIES, INC.
By: |
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Darrell Brookstein, Director |
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SCHEDULE ‘A’
SUBSCRIPTION FORM TO OPTION CERTIFICATE
(Private Placement Announced September 20,
2010)
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
The Undersigned, being the registered
holder of the attached Option Certificate of the Issuer, does hereby irrevocably exercise _____________________of the Options evidenced
thereby in accordance with the terms thereof, and accordingly hereby irrevocably subscribes for the Units (as described
therein) to be received thereon and irrevocably surrenders the Option Certificate to the Issuer for such purpose. This
subscription is accompanied by a certified cheque, bank draft or wire transfer payable to the Issuer for the whole amount of
the purchase price of the Units.
In connection with this subscription: (check
one):
| 1. ¨ | The
undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act
of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual
resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and
any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not
within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising
any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
| 2. ¨ | The
undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Issuer to the effect
that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the U.S. Securities Act
and applicable state securities laws or are exempt from registration thereunder. |
| 3. ¨ | The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities
Act) that purchased the Warrants represented by this Warrant Certificate directly from the Issuer for its own account or the account
of another Accredited Investor, (ii) it is exercising the Warrants for its own account or the account of such other Accredited
Investor, (iii) it remains an Accredited Investor on the date of exercise of the Warrants, and (iv) if the Warrants are being
exercised on behalf of another person, such person was an Accredited Investor on the date the undersigned purchased the Warrants
from the Issuer for its account and remains an Accredited Investor on the date of exercise of the Warrants. |
Note: The common shares and warrant certificates
comprising the Units will not be registered or delivered to a U.S. address unless the undersigned has checked box 2 or box 3 above
and satisfied the applicable requirements thereof. A legend will be placed on any Common Shares issued pursuant to box 2 or box
3 above to the effect that the Common Shares may not be transferred except pursuant to an exemption from registration under the
U.S. Securities Act and all applicable state securities laws.
The undersigned hereby directs that the Units be registered
as follows:
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DATED this ________ day of ________________________, 20 ___.
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Option Certificate. |
| 2. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Issuer. |
| 3. | If the Option Certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE ‘B’
WARRANT CERTIFICATE TO OPTION CERTIFICATE
(Private Placement Announced October 15,
2012)
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY BEFORE FEBRUARY 26, 2013.
WITHOUT PRIOR APPROVAL OF THE TSX VENTURE
EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON
OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL FEBRURY
26, 2013.
THIS WARRANT AND THE SECURITIES DELIVERABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A
U.S. PERSON UNLESS THIS WARRANT AND
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION
OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON"
ARE AS DEFINED BY REGULATION S UNDER THE SECURITIES ACT.
THIS WARRANT CERTIFICATE IS VOID IF
NOT EXERCISED ON OR BEFORE
5:00 P.M. (PACIFIC TIME) ON OCTOBER 25, 2015.
WARRANT CERTIFICATE
(Relating to a Private Placement Announced
on October 15, 2012)
STELLAR BIOTECHNOLOGIES, INC.
(Continued under the laws of the Province
of British Columbia)
WARRANT
CERTIFICATE
NO. 2012-t |
t WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
THIS IS TO CERTIFY THAT _____________________
of ___________________________________ (hereinafter referred to as the "holder" or the "Warrantholder")
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific Time) (the "Expiry Time") on October 25, 2015
(the “Expiry Date”), one fully paid and non-assessable common share ("Common Share") in the
capital of STELLAR BIOTECHNOLOGIES, INC. (the "Company").
These Warrants may only be exercised
at the head office of the Company at 332 E. Scott Street, Port Hueneme, California 93041.
These Warrants are issued subject to the
terms and conditions appended hereto as Schedule "A".
IN WITNESS WHEREOF, the Company has caused
this Warrant Certificate to be executed by a duly authorized director of the Company.
DATED for reference t.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Authorized Signatory |
(See terms and conditions attached hereto)
SCHEDULE "A"
TERMS AND CONDITIONS FOR WARRANT
(Relating to a Private Placement Announced
on October 15, 2012)
Terms
and Conditions attached to the Warrant issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”) and dated
for reference t.
ARTICLE 1
INTERPRETATION
In these Terms and Conditions, unless there
is something in the subject matter or context inconsistent therewith:
| (a) | "Common Shares" means the common shares in the capital of the Company to be issued pursuant to the exercise
of Warrants; |
| (b) | "Company" means STELLAR BIOTECHNOLOGIES, INC. unless and until a successor
corporation shall have become such in the manner prescribed in Article 6, and thereafter "Company" shall mean such successor
corporation; |
| (c) | "Company's Auditors" means an independent firm of accountants duly appointed as auditors of the Company; |
| (d) | "Exchange" means the TSX Venture Exchange or such other stock exchange on which the Company's Common Shares
are listed and posted for trading; |
| (e) | “Exercise Date” has that meaning ascribed to that term in Section 3.2 of this Schedule “A”; |
| (f) | "Exercise Price" means the price of CDN$0.40 per share if exercised on or before October 25, 2015; |
| (g) | "Expiry Time" means 5:00 p.m. (Pacific Time) on the Expiry Date; |
| (h) | “Expiry Date” means October 25, 2015. |
| (i) | "herein", "hereby" and similar expressions refer to these Terms
and Conditions as the same may be amended or modified from time to time; and the expression "Article" and "Section"
followed by a number refer to the specified Article or Section of these Terms and Conditions; |
| (j) | "Issue Date" means the issue date of the Warrant shown on the face page of the Warrant Certificate; |
| (k) | "person" means an individual, corporation, partnership, trustee or any unincorporated organization and words
importing persons have a similar meaning; |
| (l) | “Subscription Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”; |
| (m) | "Warrant" means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and |
| (n) | "Warrant Certificate" means the certificate to which these Terms and Conditions are attached. |
| 1.2 | Interpretation Not Affected by Headings |
| (a) | The division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation thereof. |
| (b) | Words importing the singular number include the plural and vice versa and words importing the masculine gender include the
feminine and neuter genders. |
The terms hereof and of the Warrant shall
be construed in accordance with the laws of the Province of British Columbia and the laws of Canada.
ARTICLE 2
ISSUE OF WARRANT
That number of Warrants set out on the Warrant
Certificate are hereby created and authorized to be issued.
Subject to
any other written agreement between the Company and the Warrantholder, the Company may at any time and from time to time undertake
further equity or debt financing and may issue additional Common Shares, warrants or grant options or similar rights to purchase
Common Shares to any person.
2.3 | Issue in Substitution for Lost Warrants |
If the Warrant Certificate becomes mutilated, lost,
destroyed or stolen:
(a) | the Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one
mutilated, lost, destroyed or stolen, in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed
or stolen Warrant Certificate; and |
(b) | the holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case
of the loss, destruction or theft of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction,
or theft as shall be satisfactory to the Company in its discretion and the Company may also require the holder to furnish indemnity
in an amount and form satisfactory to the Company in its discretion, and shall pay the reasonable charges of the Company in connection
therewith. |
2.4 | Warrantholder Not a Shareholder |
The Warrant
shall not constitute the holder a shareholder of the Company, nor entitle it to any right or interest in respect thereof except
as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 | Method of Exercise of the Warrant |
The right
to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior to the Expiry Time, by the holder surrendering
this Warrant Certificate, with a duly completed and executed subscription form substantially in the form attached hereto as Schedule
"B" (the “Subscription Form”) and a certified cheque, bank draft or a money order payable to or to
the order of the Company, for the Exercise Price applicable at the time of surrender in respect of the Common Shares subscribed
for in lawful money of Canada, to the Company.
3.2 | Effective Date of Exercise of the Warrant |
This Warrant Certificate
together with such Exercise Form, certified cheque, bank draft or money order will be deemed to be so surrendered and exercised
only upon actual receipt thereof by the Company as set out above (the “Exercise Date”).
3.3 | Effect of Exercise of the Warrant |
(a) | Upon surrender and payment as aforesaid the Common Shares so subscribed for shall be issued as
fully paid and non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such
surrender and payment; and |
(b) | Within five business days after surrender and payment as aforesaid, the Company shall forthwith cause the issuance to the holder
of a certificate for the Common Shares purchased as aforesaid. |
3.4 | Subscription for Less than Entitlement |
The holder may subscribe
for and purchase a number of Common Shares less than the number which it is entitled to purchase pursuant to the surrendered Warrant
Certificate. In the event of any purchase of a number of Common Shares less than the number which can be purchased pursuant to
the Warrant Certificate, the holder shall be entitled to either:
(a) | the return of the Warrant Certificate with a notation on the Grid attached hereto as Schedule
"C" showing the balance of the Common Shares which it is entitled to purchase pursuant to the Warrant Certificate
which were not then purchased; or |
(b) | to receive a new Warrant Certificate with respect to the remaining balance of the Common Shares purchasable under this Warrant
Certificate. |
3.5 | Expiration of the Warrant |
After the Expiry Time
all rights hereunder shall wholly cease and terminate and the Warrant shall be void and of no effect.
3.6 | Hold Periods and Legending of Share Certificate |
If any of the Warrants are exercised prior
to February 26, 2013, the certificates representing the Common Shares to be issued pursuant to such exercise shall bear the following
legends:
“Unless
permitted under securities legislation, the holder of the securities shall not trade the securities before February 26, 2013.”
“Without prior written
approval of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this
certificate may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange
or otherwise in Canada or to or for the benefit of a Canadian resident until February 26, 2013.”
ARTICLE 4
ADJUSTMENTS
The number of Common
Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) | in the event the Company shall: |
| (i) | pay a dividend in Common Shares or make a distribution in Common Shares; |
| (ii) | subdivide its outstanding Common Shares; |
| (iii) | combine its outstanding Common Shares into a smaller number of Common Shares; or |
| (iv) | issue by reclassification of its Common Shares other securities of the Company (including any such
reclassification in connection with a consolidation, merger, amalgamation or other combination in which the Company is the surviving
corporation); |
the number of Common Shares (or
other securities) purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Common Shares or other securities of the Company which it would have owned
or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately
prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
(b) | In case the Company shall issue rights, options or warrants to all or substantially all holders
of its outstanding Common Shares, without any charge to such holders, entitling them (for a period within 45 days after the record
date mentioned below) to subscribe for or purchase Common Shares at a price per share which is lower than 95% of the current market
price at the record date mentioned below than the then current market price per Common Share (as determined in accordance with
subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined
by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of which the denominator shall be the number of Common Shares
outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at the current market price per Common Share at such record
date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective immediately
after the record date for the determination of shareholders entitled to receive such rights, options or warrants. |
(c) | In case the Company shall distribute to all or substantially all holders of its Common Shares evidences
of its indebtedness or assets (excluding cash dividends or distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or
convertible or exchangeable securities containing the right to subscribe for or purchase Common Shares (excluding those referred
to in subsection (b) above)), then in each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction,
of which the numerator shall be the then current market price per Common Share (as determined in accordance with subsection (d)
below) on the date of such distribution, and of which the denominator shall be the then current market price per Common Share less
the then fair value (as determined by the board of directors of the Company, acting reasonably) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights, options or warrants, or of such convertible or exchangeable
securities applicable to one Common Share. Such adjustment shall be made whenever any such distribution is made, and shall become
effective on the date of distribution retroactive to the record date for the determination of shareholders entitled to receive
such distribution. |
In the event of the distribution
by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or securities convertible
or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable upon the exercise of each
Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company, such subsidiary or both,
as the Company shall reasonably determine, the shares or other securities to which such Warrantholder would have been entitled
if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment as provided in this
section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other securities shall
be made during the term of a Warrant or upon the exercise of a Warrant.
(d) | For the purpose of any computation under subsections (b) and (c) of this section 4.1, the current
market price per Common Share at any date shall be the weighted average price per Common Share for twenty- five (25) consecutive
trading days, commencing not more than 45 trading days before such date on the stock exchange on which the Common Shares are then
traded; provided if the Common Shares are then traded on more than one stock exchange, then on the stock exchange on which the
largest volume of Common Shares were traded during such twenty-five (25) consecutive trading day period. The weighted average price
per Common Share shall be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market,
as the case may be, during the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes
of this subsection (d), trading day means, with respect to a stock exchange, a day on which such exchange is open for the transaction
of business. Should the Common Shares not be listed on any stock exchange the current market price per Common Share at any date
shall be determined by the board of directors of the Company, acting reasonably. |
(e) | In any case in which this Article 4 shall require that any adjustment in the Exercise Price be
made effective immediately after a record date for a specified event, the Company may elect to defer until the occurrence of the
event the issuance, to the holder of any Warrant exercised after that record date, of the Common Shares and other shares of the
Company, if any, issuable upon the exercise of the Warrant over and above the Common Shares and other shares of the Company; provided,
however, that the Company shall deliver to the holder an appropriate instrument evidencing the holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment. |
(f) | No adjustment in the number of Common Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by reason of this subsection (f) are not required to be
made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share. |
(g) | Wherever the number of Common Shares purchasable upon the exercise of each Warrant is adjusted,
as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Common Shares purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Common Shares
purchasable immediately thereafter. |
(h) | No adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need
be made under subsections (b) and (c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants,
or convertible or exchangeable securities, or evidences of indebtedness or assets referred to in those subsections which the Warrantholder
would have been entitled to receive had the Warrants been exercised prior to the happening of such event or the record date with
respect thereto. |
(i) | In the event that at any time, as a result of an adjustment made pursuant to subsection (a) above,
the Warrantholder shall become entitled to purchase any securities of the Company other than Common Shares, thereafter the number
of such other shares so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares
contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this
Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities. |
(j) | Upon the expiration of any rights, options, warrants or conversion or exchange privileges, if any
thereof shall not have been exercised, the Exercise Price and the number of Common Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if: |
| (i) | the only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversion or exchange rights; and |
| (ii) | such Common Shares, if any, were issued or sold for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any, actually received by the Company for the issuance, sale or
grant of all such rights, options, warrants or conversion or exchange rights whether or not exercised; |
provided further, that no such
readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon
the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange rights.
4.2 | Voluntary Adjustment by the Company |
Subject to requisite
Exchange approval, the Company may, at its option, at any time during the term of the Warrants, reduce the then current Exercise
Price to any amount deemed appropriate by the Board of Directors of the Company.
Whenever the number of
Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of such Common Shares is adjusted, as herein
provided, the Company shall promptly send to the Warrantholder by first class mail, postage prepaid, notice of such adjustment
or adjustments.
4.4 | No Adjustment for Dividends |
Except as provided in
section 4.1 of this Article 4, no adjustment in respect of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
4.5 | Preservation of Purchase Rights Upon Merger, Consolidation, etc. |
In connection with any
consolidation of the Company with, or amalgamation or merger of the Company with or into, another corporation (including, without
limitation, pursuant to a "takeover bid", "tender offer" or other acquisition of all or substantially all of
the outstanding Common Shares) or in case of any sale, transfer or lease to another corporation of all or substantially all the
property of the Company, the Company or such successor or purchasing corporation, as the case may be, shall execute with the Warrantholder
an agreement that the Warrantholder shall have the right thereafter, upon payment of the Exercise Price in effect immediately prior
to such action, to purchase upon exercise of each Warrant the kind and amount of shares and other securities and property which
it would have owned or have been entitled to receive after the happening of such consolidation, amalgamation, merger, sale, transfer
or lease had such Warrant been exercised immediately prior to such action, and the Warrantholder shall be bound to accept such
shares and other securities and property in lieu of the Common Shares to which it was previously entitled; provided, however, that
no adjustment in respect of dividends, interest or other income on or from such shares or other securities and property shall be
made during the term of a Warrant or upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall
be as nearly equivalent as may be practicable to the adjustments provided for in this Schedule "A". The provisions of
this Article 4 shall similarly apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 | Determination of Adjustments |
If any questions shall
at any time arise with respect to the Exercise Price, such question shall be conclusively determined by the Company's Auditors,
or, if they decline to so act, any other firm of Chartered Accountants, in Toronto, Ontario, that the Company may designate and
the Warrantholder, acting reasonably, may approve, and who shall have access to all appropriate records and such determination
shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 | Reservation of Common Shares |
The Company will reserve
and there will remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights of acquisition
provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 | Company May Consolidate, etc. on Certain Terms |
Nothing herein contained
shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations, or a
conveyance or transfer of all or substantially all the properties and estates of the Company as an entirety to any corporation
lawfully entitled to acquire and operate same, provided, however, that the corporation formed by such consolidation, amalgamation
or merger or which acquires by conveyance or transfer all or substantially all the properties and estates of the Company as an
entirety shall, simultaneously with such amalgamation, merger, conveyance or transfer, assume the due and punctual performance
and observance of all the covenants and conditions hereof to be performed or observed by the Company.
6.2 | Successor Company Substituted |
In case the Company,
pursuant to section 6.1 shall be consolidated, amalgamated or merged with or into any other corporation or corporations or shall
convey or transfer all or substantially all of its properties and estates as an entirety to any other corporation, the successor
corporation formed by such consolidation or amalgamation, or into which the Company shall have been consolidated, amalgamated or
merged or which shall have received a conveyance or transfer as aforesaid, shall succeed to and be substituted for the Company
hereunder and such changes in phraseology and form (but not in substance) may be made in the Warrant Certificate and herein as
may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
This Warrant Certificate may only be amended
by a written instrument signed by the parties hereto.
ARTICLE 8
MISCELLANEOUS
Time is of the essence of the terms of this Warrant
Certificate.
Any notice or other communication to be given
in connection with this Warrant Certificate must be in writing and given by personal delivery to the following addresses:
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For the Company: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
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For the Warrantholder: |
__________________________
__________________________
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The Warrants evidenced hereby (or any portion thereof)
are not transferable.
SCHEDULE "B"
SUBSCRIPTION FORM
(Private Placement Announced October 25,
2010)
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
The undersigned Holder of the within Warrants hereby subscribes
for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES, INC. (the “Company”)
pursuant to the within Warrants at $0.40 per Common Share on the terms specified in the said Warrants. This subscription
is accompanied by a certified cheque or bank draft payable to or to the order of the Company for the whole amount of the purchase
price of the Common Shares.
In connection with this subscription: (check
one):
| 1.
¨ | The
undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act
of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual
resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and
any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not
within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising
any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
| 2. ¨ | The
undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Company to the
effect that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the U.S. Securities
Act and applicable state securities laws or are exempt from registration thereunder. |
| 3.
¨ | The undersigned hereby certifies that (i) it is an Accredited Investor
(as defined in Rule 501(a) under the U.S. Securities Act) that purchased the Warrants represented by this Warrant Certificate
directly from the Company for its own account or the account of another Accredited Investor, (ii) it is exercising the Warrants
for its own account or the account of such other Accredited Investor, (iii) it remains an Accredited Investor on the date of exercise
of the Warrants, and (iv) if the Warrants are being exercised on behalf of another person, such person was an Accredited Investor
on the date the undersigned purchased the Warrants from the Company for its account and remains an Accredited Investor on the
date of exercise of the Warrants. |
Note: The Common Shares will not be registered
or delivered to a U.S. address unless the undersigned has checked box 2 or box 3 above and satisfied the applicable requirements
thereof. A legend will be placed on any Common Shares issued pursuant to box 2 or box 3 above to the effect that the Common Shares
may not be transferred except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state
securities laws.
The undersigned hereby directs that the Common Shares be registered
as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this________ day of _______________________, 20 ____.
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Warrant Certificate. |
| 2. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Company. |
| 3. | If the Warrant certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE
"C"
WARRANT EXERCISE GRID
(Private Placement Announced October 15,
2012)
RELATING TO WARRANT CERTIFICATE NO. 2010-t
Common Shares Issued |
Common Shares Available |
Initials of Authorized Officer |
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Exhibit 4.3
STELLAR BIOTECHNOLOGIES, INC.
(the “Corporation”)
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(CDN $0.25 UNITS)
INSTRUCTIONS TO SUBSCRIBER
All Subscribers must sign and deliver
to Stellar Biotechnologies, Inc. at its Canadian office, 1868 King George Blvd., South Surrey, British Columbia, V4A 5A1 (Tel:
604-306-8854 / Fax: 604-535-4454):
All Subscribers:
| 1. | A completed and executed copy of this Agreement; |
| 2. | A Schedule II (TSX Personal Information Acknowledgement
and Consent); |
| 3. | A certified cheque,
bank draft or wire transfer payable to the Corporation; |
Each Subscriber Must Complete One of the Following:
| 4. | If the Subscriber is an “Accredited Investor”
resident anywhere, except the United States, a completed and signed Schedule III (Accredited Investor Certificate – Non-United
States Residents Only); |
| 5. | If the Subscriber is a resident of the United States and
is an “Accredited Investor” as that term is defined in Regulation D under the United States Securities Act of 1933,
a completed and signed Schedule IV (Accredited Investor Certificate - United States Residents Only); |
| 6. | If the Subscriber is not an “accredited investor”
but is a director, executive officer, control person of the Corporation, or of an affiliate of the Corporation or founder of the
Corporation, or a spouse, parent, grandparent, brother, sister, child, grandchild, close personal friend or close business associate
of a director, executive officer, control person or founder of the Corporation or a parent, grandparent, brother, sister, child
or grandchild of a spouse of a founder of the Corporation and is not resident in Ontario or Saskatchewan, a completed and
signed Schedule V (Family, Friends and Business Associates Certificate); |
| 7. | If the Subscriber is not an “accredited investor”
but is a founder or control person of the Corporation or a spouse, parent, grandparent, brother, sister, grandchild or child of
an executive officer, director or founder of the Corporation and a resident of Ontario, a completed Schedule VI (Founder, Control
Person and Family Certificate – Ontario Residents Only); |
| 8. | If the Subscriber is not an “accredited investor”,
but is a close personal friend or business associate of a founder, director, executive officer or control person of the issuer,
or of an affiliate of the Corporation and is a resident of Saskatchewan, then complete and sign Schedule VII (“Risk Acknowledgement
– Saskatchewan Residents Only”); |
| 9. | If the Subscriber is not an “accredited investor”,
but is buying securities having an aggregate cost of at least CDN$150,000 and is not a resident of the United States or offshore,
then complete and sign Schedule VIII (“Minimum Investment Amount Certificate – Non United States Residents or Offshore
Residents”); |
| 10. | If the Subscriber is not a resident of Canada or the United
States of America and did not sign this subscription agreement in Canada or the United States of America, a completed and signed
Schedule IX (Confirmation of Residence Outside of Canada and the United States of America – Non Resident Certificate); |
Each Subscriber Who Is Not an Individual
Must Complete the Following:
| 11. | If the Subscriber is a portfolio manager or is not an individual
(that is, the Subscriber is a corporation, partnership, trust or entity other than an individual), and does not have a current
accurate Form 4C - Corporate Placee Registration Form on file with the TSX Venture Exchange, a completed and signed Schedule X. |
SUBSCRIPTION AGREEMENT
| TO: | STELLAR BIOTECHNOLOGIES, INC. |
The undersigned (the
“Subscriber”) hereby irrevocably subscribes for and agrees to purchase from STELLAR BIOTECHNOLOGIES, INC.
(the “Corporation”) that number of units of the Corporation (the “Units”) set out below
at a price of CDN $0.25 per Unit. Each Unit consists of one common share in the capital of the Corporation (a “Share”)
and one transferable common share purchase warrant (a “Warrant”). Each Warrant shall entitle the holder
thereof to acquire one common share in the capital of the Corporation (a “Warrant Share”) at a price of CDN
$0.40 per Warrant Share until 5:00 p.m. (Vancouver time) on the date which is three years following the Closing Date (as defined
herein). The Subscriber agrees to be bound by the terms and conditions set forth in the attached “General Provisions”
including without limitation the representations, warranties and covenants set forth in the applicable schedules attached thereto.
The Subscriber further agrees, without limitation, that the Corporation may rely upon the Subscriber’s representations, warranties
and covenants contained in such documents.
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other than
signatures), as applicable, in the space provided below
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(Name of Subscriber) |
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Account Reference (if applicable): |
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By: |
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Authorized Signature |
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(Official Capacity or Title – if the Subscriber is not an individual) |
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(Name of individual whose signature appears above if different than the name of the subscriber printed above.) |
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(Subscriber’s Address, including Municipality and Province) |
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(Telephone Number) |
(Email Address) |
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Number of Units |
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x CDN $0.25 |
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= |
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Aggregate Subscription Price: ______________________ |
(the “Subscription Amount”) |
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Please
complete if
purchasing as agent or trustee for a principal
(beneficial purchaser) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully
managed by it. |
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(Name of Disclosed Principal) |
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(Address of Disclosed Principal) |
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(Account Reference, if applicable) |
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Share Certificate Registration Information: (indicate exactly how you want to be registered on the share and warrant certificate) |
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(Name) |
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(Address, including Postal Code) |
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Delivery Instructions as set forth below: |
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(Name) |
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(Account Reference, if applicable) |
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(Address) |
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(Contact Name) |
(Telephone Number) |
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Number and kind of securities of the Corporation held, directly or indirectly, if any: |
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1. |
State whether Subscriber is an Insider of the Corporation: |
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Yes ¨ No ¨ |
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2. |
State whether Subscriber is a member of the Pro Group: |
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Yes ¨ No ¨ |
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3. |
If applicable, the Subscriber has on file with the Exchange a current Form 4C |
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Yes ¨ No ¨ |
GENERAL PROVISIONS
1.1 In this Subscription Agreement (including
the first page (instruction page), page 2 (cover page), the General Provisions and Schedules incorporated by reference, the following
words have the following meanings unless otherwise indicated:
| (a) | “1933 Act” means the United States Securities Act of 1933, as amended; |
| (b) | “Applicable Legislation” means the Securities Legislation Applicable to the Corporation
and all legislation incorporated in the definition of this term in other parts of this Subscription Agreement, together with the
regulations and rules made and promulgated under that legislation and all administrative policy statements, blanket orders and
rulings, notices and other administrative directions issued by the Commissions; |
| (c) | “Closing” means the completion of the sale and purchase of the Purchased Securities; |
| (d) | “Closing Date” has the meaning assigned in the Term Sheet; |
| (e) | “Commissions” means the Commissions with Jurisdiction over the Corporation and the
securities commissions incorporated in the definition of this term in other parts of this Subscription Agreement; |
| (f) | “Exchange” has the meaning assigned in the Term Sheet; |
| (g) | “Final Closing” means the last closing under the Private Placement; |
| (h) | “General Provisions” means those portions of this Subscription Agreement headed “General
Provisions”; |
| (i) | “Private Placement” means the offering of the Purchased Securities in the General Provisions
of this Subscription Agreement; |
| (j) | “Public Record” means those documents filed in the website www.SEDAR.com; |
| (k) | “Purchased Securities” has the meaning assigned in the Term Sheet; |
| (l) | “Regulation S” means Regulation S promulgated under the 1933 Act; |
| (m) | “Regulatory Authorities” means the Commissions and the Exchange; |
| (n) | “Securities” has the meaning assigned in the Term Sheet; |
| (o) | “Subscription Agreement” means the instruction page, page 3 (cover page), the Term
Sheet, the General Provisions and other Schedules incorporated by reference; and |
| (p) | “Terms” means those portions of this Subscription Agreement headed “General Provisions”
and “Term Sheet”. |
1.2 In this Subscription Agreement,
the following terms have the meanings defined in Regulation S: “Directed Selling Efforts”, “Foreign Corporation”,
“Substantial U.S. Market Interest”, “U.S. Person” and “United States”.
1.3 In this Subscription Agreement, unless otherwise specified,
currencies are indicated in Canadian dollars.
1.4 In this Subscription Agreement, other words and phrases
that are capitalized have the meaning assigned in this Subscription Agreement.
| 2. | REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER |
2.1 Acknowledgements concerning offering
The Subscriber acknowledges that:
| (a) | no securities commission or similar regulatory authority has reviewed or passed on the merits of
the Securities; |
| (b) | there is no government or other insurance covering the Securities; |
| (c) | there are risks associated with the purchase of the Securities; |
| (d) | there are restrictions on the Subscriber’s ability to resell the Securities and it is the
responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Securities; |
| (e) | the Corporation has advised the Subscriber that the Corporation is relying on an exemption from
the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities
under the Applicable Legislation and, as a consequence of acquiring securities pursuant to this exemption, certain protections,
rights and remedies provided by the Applicable Legislation, including statutory rights of rescission or damages, will not be available
to the Subscriber; |
| (f) | no prospectus has been filed by the Corporation with the Commissions in connection with the issuance
of the Purchased Securities, the issuance is exempted from the prospectus and registration requirements of the Applicable Legislation
and: |
| (i) | the Subscriber is restricted from using most of the civil remedies available under the Applicable
Legislation; |
| (ii) | the Subscriber may not receive information that would otherwise be required to be provided to the
Subscriber under the Applicable Legislation; and |
| (iii) | the Corporation is relieved from certain obligations that would otherwise apply under the Applicable
Legislation; and |
| (g) | the Subscriber acknowledges that the Securities have not been registered under the 1933 Act and
may not be offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable
states of the United States or an exemption from such registration requirements is available, and that the Corporation has no obligation
or present intention of filing a registration statement under the 1933 Act in respect of the Purchased Securities or any of the
Securities. |
| 2.2 | Representations by all Subscribers |
The Subscriber represents and warrants to
the Corporation that, as at the Agreement Date and at the Closing:
| (a) | if the Subscriber is purchasing the Securities as principal for its own account, the Subscriber
is purchasing them for investment only and not for the benefit of any other person or for resale, distribution or other disposition
of the Securities; |
| (b) | to the best of the Subscriber’s knowledge, the Securities were not advertised; |
| (c) | no person has made to the Subscriber any written or oral representations: |
| (i) | that any person will resell or repurchase the Securities; |
| (ii) | that any person will refund the purchase price of the Purchased 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 a stock exchange or that application
has been made to list and post any of the Securities for trading on any stock exchange, other than the Shares and Warrant
Shares on the Exchange; |
| (d) | this subscription has not been solicited in any other manner contrary to the Applicable Legislation
or the 1933 Act; |
| (e) | the Subscriber (or others for whom it is contracting hereunder) has been advised to consult its
own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or others for whom it
is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation; |
| (f) | the Subscriber has no knowledge of a “material fact” or “material change”
(as those terms are defined in the Applicable Legislation) in the affairs of the Corporation that has not been generally disclosed
to the public, except knowledge of this particular transaction; |
| (g) | the offer made by this subscription is irrevocable (subject to the Subscriber’s right to
withdraw the subscription and to terminate the obligations as set out in this Subscription Agreement) and requires acceptance by
the Corporation and approval of the Exchange; |
| (h) | the Subscriber has the legal capacity and competence to enter into and execute this Subscription
Agreement and to take all actions required pursuant to this Subscription Agreement and, if the Subscriber is a corporation, it
is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by
its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Subscriber; |
| (i) | the Subscriber is not a “control person” of the Corporation as defined in the Applicable
Legislation, will not become a “control person” by virtue of this purchase of any of the Securities, and does not intend
to act in concert with any other person to form a control group of the Corporation; |
| (j) | unless the Subscriber has completed and signed Schedule “IV”, the offer was not made
to the Subscriber when the Subscriber was in the United States and, at the time the Subscriber’s buy order was made to the
Corporation, the Subscriber was outside the United States; |
| (k) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
a U.S. Person; |
| (l) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
and will not be purchasing Purchased Securities for the account or benefit of any U.S. Person; |
| (m) | the entering into of this Subscription Agreement and the transactions contemplated hereby will
not result in the violation of any of the terms and provisions of any law applicable to, or the 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; |
| (n) | this Subscription Agreement has been duly executed and delivered by the Subscriber and constitutes
a legal, valid and binding agreement of the Subscriber enforceable against the Subscriber; |
| (o) | the Subscriber has been independently advised as to the applicable hold period imposed in respect
of the Securities by securities legislation in the jurisdiction in which the Subscriber resides and confirms that no representation
has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of
the Securities and of the fact that the Subscriber may not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policies; |
| (p) | the Subscriber is capable of assessing the proposed investment as a result of the Subscriber’s
financial and business experience or as a result of advice received from a registered person other than the Corporation or any
affiliates of the Corporation; |
| (q) | if required by applicable securities legislation, policy or order or by any securities commission,
stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in
filing, such reports, undertakings and other documents with respect to the issue of the Securities as may be required; |
| (r) | it has relied solely upon publicly available information relating to the Issuer and not upon any
verbal or written representation as to fact or otherwise made by or behalf of the Corporation or the Corporation; and |
| (s) | the funds representing the funds representing the aggregate purchase price which will be advanced
by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and the Subscriber acknowledges that the
Corporation may in future be required by law to disclose the Subscriber’s name and other information relating to this Subscription
Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its
knowledge, none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to
any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii)
are being tendered on behalf of a person or entity who has not been identified to the Subscriber. The Subscriber shall promptly
notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation
with appropriate information in connection therewith. |
2.3 Representations by residents of the United States:
The Subscriber represents and warrants to
the Corporation that, as at the Agreement Date and at the Closing:
| (a) | the Subscriber is resident of the United States of America, or is otherwise subject to the securities
laws thereof; |
| (b) | understands the Securities have not and will not be registered under the 1933 Act or the securities
laws of any state of the United States of America in which the Subscriber is resident and the sale contemplated hereby is being
made in reliance on private placement exemptions to the Subscriber pursuant to Rule 506 of the 1933 Act; |
| (c) | the Subscriber, is an Accredited Investor as set out in the completed Schedule IV - U.S. Accredited
Investor Certificate, delivered with this Agreement; and |
| (d) | has made the representations, warranties and covenants (which representations, warranties and covenants
shall survive the Closing) to the Corporation (and acknowledges that the Corporation is relying thereon). |
2.4 Representations by residents outside
of Canada and the United States:
The Subscriber represents
and warrants to the Corporation that, as of the Agreement Date and at the Closing:
| (a) | is knowledgeable of, or has been independently advised as to the applicable securities laws and
the applicable rules of any securities regulatory authorities having application in the jurisdiction in which the Subscriber is
resident (the “International Jurisdiction”) which would apply to the acquisition of the Subscriber’s Units, if
any; |
| (b) | is purchasing the Units pursuant to exemptions from the prospectus and registration requirements
under the applicable securities laws of the International Jurisdiction or, if such is not applicable, the Subscriber is permitted
to purchase the Units under the applicable securities laws of the International Jurisdiction without the need to rely on any exemption; |
| (c) | the applicable securities laws of the International Jurisdiction do not require the Corporation
to make any filings or seek any approvals of any nature whosoever from any regulatory authority of any kind whatsoever in the International
Jurisdiction in connection with the issue and sale or resale of the Units; and |
| (d) | is complying with the requirements of all applicable securities legislation in the jurisdiction
of its residence and will provide such evidence of compliance with all such matters as the Corporation may request. |
2.5 Reliance, indemnity and notification
of changes
The representations and
warranties in this Subscription Agreement (including the Term Sheet, the General Provisions and the other schedules and appendices
incorporated by reference) are made by the Subscriber with the intent that they be relied upon by the Corporation in determining
its suitability as a Subscriber of Purchased Securities, and the Subscriber hereby agrees to indemnify the Corporation against
all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon.
The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information
relating to the Subscriber set forth in this Subscription Agreement (including the Term Sheet, the General Provisions and the other
schedules and appendices incorporated by reference) which takes place prior to the Closing.
2.6 Survival of representations and
warranties
The representations and
warranties contained in this Section will survive the Closing.
| 3. | REPRESENTATIONS AND WARRANTIES OF THE CORPORATION |
3.1 The Corporation represents and warrants to the Subscriber
that, as of the date of this Agreement and at the Closing:
| (a) | the Corporation and its subsidiaries, if any, are valid and subsisting corporations duly incorporated,
continued or amalgamated and in good standing under the laws of the jurisdictions in which they are incorporated, continued or
amalgamated with respect to all acts necessary to maintain their corporate existence; |
| (b) | the Corporation is the beneficial owner of the properties, business and assets or the interests
in the properties, business and assets referred to in the Public Record, except as disclosed in the Public Record all agreements
by which the Corporation holds an interest in a property, business or asset are in good standing according to their terms, and
there has not been any breach of the applicable laws of the jurisdictions in which such properties, business and assets are situated
which would have a material adverse effect on such properties, business and assets; |
| (c) | the Financial Statements accurately reflect the financial position of the Corporation as at the
date thereof and have been properly prepared in accordance with Canadian Generally Accepted Accounting Principles (GAAP) (up to
and including audited financial statements for the year ended August 31, 2011) and International Financial Reports Standards (interim
financial statements subsequent to August 31, 2011); |
| (d) | no adverse material changes in the financial position of the Corporation have taken place since
the date of the latest balance sheet contained in the Financial Statements, except as has been publicly disclosed; |
| (e) | except for as provided in the Public Record, the Corporation and its subsidiaries are not currently
a party to any actions, suits or proceedings which could materially affect the Corporation’s business or financial condition; |
| (f) | except as disclosed in the Public Record and for options granted in the ordinary course under the
Corporation’s stock option plan, there are no outstanding options, warrants or other securities exercisable to purchase or
convertible or exchangeable into common shares of the Corporation; |
| (g) | the Corporation has complied and will comply with all applicable corporate and securities laws
and regulations in connection with the offer, sale and issuance of the Units; |
| (h) | the issuance and sale of the Units by the Corporation does not and will not conflict with and does
not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement
or instrument to which the Corporation is a party; |
| (i) | this Agreement has been duly authorized by all necessary corporate action on the part of the Corporation
and, subject to acceptance by the Corporation, constitutes a valid obligation of the Corporation legally binding upon it and enforceable
in accordance with its terms; |
| (j) | the issuance of the Securities, at the time of their issue, will have been approved by all requisite
corporate action and any shares comprising part of the Securities, upon issue and delivery, will be validly issued as fully paid
and non-assessable; |
| (k) | the Corporation is a reporting issuer under the BC Act and Alberta Act, its common shares are listed
for trading on the Exchange; and |
| (l) | all consents, approvals, authorizations, orders or agreements of any stock exchanges, securities
commissions or similar authorities in Canada, governmental agencies or regulators, courts or any other persons which may be required
for the issuance of the Securities and the delivery of certificates representing the Securities to the Subscriber, shall be obtained
and in effect prior to or on the date of delivery of such certificates. |
3.2 Survival of representations and warranties
The representations and warranties contained
in this Section will survive the Closing.
4.1 The Subscriber acknowledges that,
although Purchased Securities may be issued to other purchasers under the private placement concurrently with the Closing, there
may be other sales of Purchased Securities under the private placement, some or all of which may close before or after the Closing.
4.2 On or before the end of the fifth
business day before the Closing Date, the Subscriber will deliver to the Corporation this Subscription Agreement and all applicable
schedules and required forms, duly executed, and payment in full for the total purchase price of the Purchased Securities to be
purchased by the Subscriber by certified cheque, bank draft or wire transfer in Canadian dollars payable to “STELLAR BIOTECHNOLOGIES,
INC.”.
4.3 At Closing or as soon as reasonably
possible thereafter, the Corporation will deliver to the Subscriber the certificates representing the Purchased Securities purchased
by the Subscriber registered in the name of the Subscriber or its nominee, or as directed by the Subscriber.
5.1 The Subscriber agrees to sell, assign
or transfer the Securities only in accordance with the requirements of applicable securities laws and any legends placed on the
Securities as contemplated by this Subscription Agreement.
5.2 The Subscriber hereby authorizes
the Corporation to correct any minor errors in, or complete any minor information missing from any part of this Subscription Agreement
and any other schedules, forms, certificates or documents executed by the Subscriber and delivered to the Corporation in connection
with the Private Placement.
5.3 The Corporation may rely on delivery
by fax machine of an executed copy of this subscription, and acceptance by the Corporation of such faxed copy will be equally effective
to create a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms of this Subscription
Agreement.
5.4 Without limitation, this subscription
and the transactions contemplated by this Subscription Agreement are conditional upon and subject to the Corporation’s having
obtained such regulatory approval of this subscription and the transactions contemplated by this Subscription Agreement as the
Corporation considers necessary.
5.5 This Subscription Agreement is not
assignable or transferable by the parties hereto without the express written consent of the other party to this Subscription Agreement.
5.6 Time is of the essence of this Subscription
Agreement and will be calculated in accordance with the provisions of the Interpretation Act (British Columbia).
5.7 Except as expressly provided in
this Subscription Agreement and in the agreements, instruments and other documents contemplated or provided for in this Subscription
Agreement, this Subscription Agreement contains the entire agreement between the parties with respect to the Securities and there
are no other terms, conditions, representations or warranties whether expressed, implied, oral or written, by statute, by common
law, by the Corporation, or by anyone else.
5.8 The parties to this Subscription
Agreement may amend this Subscription Agreement only in writing.
5.9 This Subscription Agreement enures
to the benefit of and is binding upon the parties to this Subscription Agreement and their successors and permitted assigns.
5.10 A party to this Subscription Agreement
will give all notices to or other written communications with the other party to this Subscription Agreement concerning this Subscription
Agreement by hand or by registered mail addressed to the address given on page 2.
5.11 This Subscription Agreement is
to be read with all changes in gender or number as required by the context.
5.12 This Subscription Agreement will
be governed by and construed in accordance with the internal laws of British Columbia (without reference to its rules governing
the choice or conflict of laws), and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts
of British Columbia with respect to any dispute related to this Subscription Agreement.
The Corporation hereby
accepts the subscription for Units as set forth on the face page of this Subscription Agreement on the terms and conditions contained
in the Subscription Agreement (including all applicable schedules) this day of , 2012.
|
STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Authorized Signatory |
SCHEDULE “I”
TERM SHEET
STELLAR BIOTECHNOLOGIES, INC.
(Capitalized terms have the meanings assigned
in the Subscription Agreement.)
THE CORPORATION |
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Stellar Biotechnologies, Inc. |
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MINIMNUM/MAXIMUM OFFERING |
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There is no Minimum Offering. The Maximum Offering consists of 4,000,000 Units. |
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PURCHASED SECURITIES |
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The “Purchased Securities” are Units. Each Unit consists of one previously unissued common share, as presently constituted (a “Share”) and one transferable share purchase warrant (a “Warrant”) of the Corporation. Each Warrant will entitle the holder, on exercise, to purchase one additional common share of the Corporation (a “Warrant Share”), at a price of CDN $0.40 per Warrant Share until the close of business on the day which is three years from the date of the issue of the Warrants. |
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TOTAL AMOUNT |
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CDN $1,000,000 |
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PRICE |
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CDN $0.25 per Unit. |
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WARRANTS |
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The Warrants will be transferable, subject to compliance with applicable securities legislation. |
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The certificates representing the Warrants will, among other things, include provisions for the appropriate adjustment in the class, number and price of the Warrant Shares issued upon exercise of the Warrants upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the Corporation’s common shares, the payment of stock dividends and the amalgamation of the Corporation. |
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The issue of the Warrants will not restrict or prevent the Corporation from obtaining any other financing, or from issuing additional securities or rights, during the period within which the Warrants may be exercised. |
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SELLING JURISDICTIONS |
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The Units may be sold to eligible purchasers in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, the Yukon, Nunavut, Northwest Territories, the Maritimes, the United States and in certain “offshore” jurisdictions outside Canada and the United States, subject to receipt of all necessary regulatory approvals and compliance with applicable laws (the “Selling Jurisdictions”). |
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FINDER’S FEE |
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The Corporation may pay a finder’s fee to certain arm’s length parties at up to the maximum rates allowed by the Exchange. Such amounts will be paid either in cash or, at the discretion of the Issuer, the issuance of securities of the Corporation. |
EXEMPTIONS |
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The offering will be made in accordance with the following exemptions
from the prospectus requirements:
(a) the “accredited
investor” exemption (section 2.3 of National Instrument 45-106);
(b) the United States “accredited
investor exemption” (section 2.3 of National Instrument 45-106 and Rule 506 of Regulation D);
(c) the British Columbia,
Alberta, Manitoba, Quebec, Yukon, Nunavut, Northwest Territories and Maritime “family, friends and business associates”
exemption (section 2.5 of National Instrument 45-106);
(d) the Saskatchewan “family,
friends and business associates” exemption (section 2.6 of National Instrument 45-106);
(e) the
Ontario “founder, control person and family exemption” (section 2.7 of National Instrument 45-106);
(f) the “minimum amount
investment” exemption (section 2.10 of National Instrument 45-106); and
(g) the “offshore exemption”
(BC Instrument 72-503). |
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RESALE RESTRICTIONS AND LEGENDS |
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The Purchased Securities will be subject to a four month and one day hold period that commences on Closing. |
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The Subscriber acknowledges that the certificates representing the Purchased Securities may bear the following legends: |
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“UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT THE DATE THAT IS FOUR MONTHS AND A DAY AFTER THE DISTRIBUTION DATE.]” |
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“WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [DATE THAT IS FOUR MONTHS AND A DAY AFTER THE CLOSING].” |
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If the Subscriber is a resident of the United States, then the Subscriber acknowledges that the certificates representing the Purchased Securities will bear the additional following legend or such other legend as legal counsel for the Corporation may advise: |
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“THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF
AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.” |
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The Corporation agrees that the Purchased Securities will bear no legends other than those set out here. Subscribers are advised to consult with their own legal counsel or advisors to determine the resale restrictions that may be applicable to them. |
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CLOSING DATE |
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Payment for the Units is required as soon as possible, and the delivery of the Units is scheduled to occur following receipt of the required approval of the Exchange or on such date as may be designated by the Corporation (the “Closing Date”). Subsequent closings may take place from time to time at later dates as may be determined by the Corporation. |
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ADDITIONAL DEFINITIONS |
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In this Subscription Agreement, the following words have the
following meanings unless otherwise indicated:
(a) “Purchased Securities”
means the Units purchased under this Subscription Agreement;
(b) “Securities”
means the Shares, the Warrants and the Warrant Shares;
(c) “Warrants”
includes the certificates representing the Warrants. |
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REGULATORY APPROVAL: |
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The completion of the Offering is subject to regulatory approval by the TSX Venture Exchange. |
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JURISDICTION OF ORGANIZATION |
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The Corporation is a validly existing company under the laws of the British Columbia Business Corporations Act. |
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STOCK EXCHANGE LISTING |
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Shares of the Corporation are listed on the TSX Venture Exchange. (the “Exchange”). |
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SECURITIES LEGISLATION APPLICABLE TO THE CORPORATION |
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The “Securities Legislation Applicable to the Corporation” is the Securities Act (British Columbia) and the Securities Act (Alberta). |
SCHEDULE II
PERSONAL INFORMATION ACKNOWLEDGEMENT
AND CONSENT
IN THE MATTER OF PERSONAL INFORMATION
PROVIDED TO
STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
TO BE COMPLETED BY ALL SUBSCRIBERS
“Personal Information” means any information about
the undersigned and includes information obtained from the undersigned through written or verbal means between the undersigned
and the Corporation, its agents or representatives.
ACKNOWLEDGEMENT AND CONSENT:
I, the undersigned, have read and understand the TSX Personal
Information Acknowledgement set out below.
I hereby consent to:
| (1) | the disclosure of my Personal Information to the TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
as requested from the Exchange; |
| (2) | the collection, use and disclosure of my Personal Information by the Exchange for the purposes
described below under “TSX Personal Information Acknowledgement” or as otherwise identified by the Exchange, from time
to time; |
| (3) | the disclosure of my Personal Information to the British Columbia Securities Commission and to
any other applicable regulatory authority (collectively referred to as the “Regulatory Authorities”) as requested from
the Regulatory Authorities; and |
| (4) | the collection, use and disclosure of my Personal Information by the Regulatory Authorities for
such purposes as are identified by the Regulatory Authorities from time to time. |
DATED the____________day of______________________________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
TSX PERSONAL INFORMATION ACKNOWLEDGEMENT
TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
collect Personal Information in certain Forms that are submitted by the individual and/or by an Issuer
or Applicant and use it for the following purposes:
| • | to conduct background checks, |
| • | to verify the Personal Information that has been provided about each individual, |
| • | to consider the suitability of the individual to act as an officer, director, insider, promoter,
investor relations provider or, as applicable, an employee or consultant, of the Issuer or Applicant, |
| • | to consider the eligibility of the Issuer or Applicant to list on
the Exchange, |
| • | to provide disclosure to market participants as to the security holdings of directors, officers,
other insiders and promoters of the Issuer, or its associates or affiliates, and includes information as to such individual’s
involvement with any other reporting issuers, issuers subject to a cease trade order or bankruptcy, as well as information respecting
penalties, sanctions or personal bankruptcies, to which such individual has been subject, as well as any conflicts of interest
that the individual may have with the Issuer, |
| • | to detect and prevent fraud, |
| • | to conduct enforcement proceedings, and |
| • | to perform other investigations as required by and to ensure compliance
with all applicable rules, policies, rulings and regulations of the Exchange, securities legislation
and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada. |
As part of
this process, the Exchange also collects additional Personal Information from other sources, including but not limited to, securities
regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services
providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above
can be accomplished.
The Personal Information the Exchange collects
may* also be disclosed:
| (a) | to the agencies and organizations in the preceding paragraph, or as otherwise permitted or required
by law, and they may use it in their own investigations for the purposes described above; and |
| (b) | on the Exchange’s website or through printed materials published by or pursuant to the directions
of the Exchange. |
The Exchange may from time
to time use third parties to process information and/or provide other administrative services. In this regard, the Exchange may
share the information with such third party service providers.
SCHEDULE III
ACCREDITED INVESTOR CERTIFICATE
(Non-United States Residents Only)
(Capitalized terms not
specifically defined in this Schedule have the meaning ascribed to them in the Subscription Agreement of which this Schedule forms
part.)
In connection with the
execution of the Subscription Agreement to which this Schedule is attached, the undersigned (the “Subscriber”)
represents and warrants to the Corporation that the Subscriber satisfies one or more of the categories indicated below (please
place an “X” on the appropriate lines):
(Please initial or place an X or a check
mark next to as applicable)
| __ (a) | a Canadian financial institution, or a Schedule III bank, |
| __ (b) | the Business Development Bank of Canada incorporated under the Business Development Bank of Canada
Act (Canada), |
| __ (c) | a subsidiary of any person referred to in paragraphs (a) or (b), if the person owns all of the
voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary, |
| __ (d) | a person registered under the securities legislation of a jurisdiction of Canada as an adviser
or dealer, other than a person registered solely as a limited market dealer registered under one or both of the Securities Act
(Ontario) or the Securities Act (Newfoundland and Labrador), |
| __ (e) | an individual registered or formerly registered under the securities legislation of a jurisdiction
of Canada as a representative of a person referred to in paragraph (d), |
| __ (f) | the Government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly
owned entity of the Government of Canada or a jurisdiction of Canada, |
| __ (g) | a municipality, public board or commission in Canada
and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île de Montréal
or an intermunicipal management board in Québec, |
| __ (h) | any national, federal, state, provincial, territorial or municipal government of or in any foreign
jurisdiction, or any agency of that government, |
| __ (i) | a pension fund that is regulated by the Office of the Superintendent of Financial Institutions
(Canada), a pension commission or similar regulatory authority of a jurisdiction of Canada, |
| __ (j) | an individual who, either alone or with a spouse, beneficially owns financial assets having an
aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000, |
| __ (k) | an individual whose net income before taxes exceeded $200,000 in each of the two most recent calendar
years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent calendar
years and who, in either case, reasonably expects to exceed that net income level in the current calendar year, |
| __ (l) | an individual who, either alone or with a spouse, has net assets of at least $5,000,000, |
| __ (m) | a person, other than an individual or investment fund, that has net assets of at least $5,000,000,
as shown on its most recently prepared financial statements, |
| __ (n) | an investment fund that distributes its securities only to |
| (i) | a person that is or was an accredited investor at the time of distribution, |
| (ii) | a person that acquires or acquired securities in the circumstances referred to in sections 2.10
[Minimum amount investment], and 2.19 [Additional investment in investment funds], or |
| (iii) | a person described in paragraph (i) or (ii) that acquires or acquired securities under section
2.18 [Investment fund reinvestment], |
| __ (o) | an investment fund that distributes or has distributed
securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory
authority, has issued a receipt, |
| __ (p) | a trust company or trust corporation registered or authorized to carry on business under the Trust
and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on
behalf of a fully managed account managed by the trust company or trust corporation, as the case may be, |
| __ (q) | a person acting on behalf of a fully managed account managed by that person, if that person |
| (i) | is registered or authorized to carry on business as an adviser or the equivalent under the securities
legislation of a jurisdiction of Canada or a foreign jurisdiction, and |
| (ii) | in Ontario, is purchasing a security that is not a security of an investment fund; |
| __ (r) | a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained
advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered
charity to give advice on the securities being traded, |
| __ (s) | an entity organized in a foreign jurisdiction that is analogous to any of the entities referred
to in paragraphs (a) to (d) or paragraph (i) in form and function, |
| __ (t) | a person or company in respect of which all of the owners of interests, direct, indirect or beneficial,
except the voting securities required by law to be owned by directors, are persons that are accredited investors, |
| __ (u) | an investment fund that is advised by a person registered as an adviser or a person that is exempt
from registration as an adviser, or |
| __ (v) | a person that is recognized or designated by the securities
regulatory authority or, except in Ontario and Québec, the regulator as an accredited investor. |
For the purposes of the foregoing terms in
bold, the following definitions apply:
“bank” means a bank named in Schedule I or
II of the Bank Act (Canada).
“Canadian financial institution” means
| (a) | an association governed by the Cooperative Credit Associations Act (Canada) or a central
cooperative credit society for which an order has been made under section 473(1) of that Act, or |
| (b) | a bank, loan corporation, trust company, trust corporation, insurance company, treasury
branch, credit union, caisse populaire, financial services cooperative, or league that, in each case, is authorized by an enactment
of Canada or a jurisdiction of Canada to carry on business in Canada or a jurisdiction of Canada. |
“control person” means
any person that holds or is one of a combination of persons, acting in concert by virtue of an agreement, arrangement,
commitment or understanding, that holds
| (a) | a sufficient number of any of the securities of a company so as to affect materially the control
of the company, or |
| (b) | more than 20% of the outstanding voting securities of a company except where there is evidence
showing that the holding of those securities does not affect materially the control of the company. |
“director” means
| (a) | a member of the board of directors of a company or an individual who performs similar functions
for a company, and |
| (b) | with respect to a person that is not a company, an individual who performs functions
similar to those of a director of a company. |
“eligibility adviser” means
| (a) | a person that is registered as an investment dealer and authorized to give advice with respect
to the type of security being distributed, and |
| (b) | in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with
a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association
of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided
that the lawyer or public accountant must not |
| (i) | have a professional, business or personal relationship
with the Corporation, or any of its directors, executive officers, founders, or control persons, and |
| (ii) | have acted for or been retained personally or otherwise as an employee, executive officer,
director, associate or partner of a person that has acted for or been retained by the Corporation or any of its directors,
executive officers, founders or control persons within the previous 12 months. |
“eligible investor” means
| (i) | net assets, alone or with a spouse, in the case of an individual, exceed $400 000, |
| (ii) | net income before taxes exceeded $75,000 in each of the 2 most recent calendar years and who reasonably
expects to exceed that income level in the current calendar year, or |
| (iii) | net income before taxes, alone or with a spouse, in the case of an individual, exceeded $125 000 in each of the 2 most
recent calendar years and who reasonably expects to exceed that income level in the current calendar year, |
| (b) | a person of which a majority of the voting securities are beneficially owned by eligible investors
or a majority of the directors are eligible investors, |
| (c) | a general partnership of which all of the partners are eligible investors, |
| (d) | a limited partnership of which the majority of the general partners are eligible investors, |
| (e) | a trust or estate in which all of the beneficiaries or a majority of the trustees or executors
are eligible investors, |
| (f) | an accredited investor, |
| (g) | a person described in section 2.5 [Family, friends and business associates] of National
Instrument 45-106, or |
| (h) | a person that has obtained advice regarding the suitability of the investment and, if the person
is resident in a jurisdiction of Canada, that advice has been obtained from an eligibility adviser; |
“executive officer”
means, for an Corporation, an individual who is
| (a) | a chair, vice-chair or president, |
| (b) | a vice-president in charge of a principal business unit, division or function including sales,
finance or production, or |
| (d) | performing a policy-making function in respect of the Corporation; |
“financial assets”
means
| (c) | a contract of insurance, deposit or an evidence of a deposit that is not a security for the purposes
of securities legislation. |
“founder” means, in
respect of a Corporation, a person who,
| (a) | acting alone, in conjunction, or in concert with one or more persons, directly or indirectly,
takes the initiative in founding, organizing or substantially reorganizing the business of the Corporation, and |
| (b) | at the time of the trade is actively involved in the business of the Corporation; |
“fully managed
account” means an account for of a client for which a person makes the investment decisions if that person
has full discretion to trade in securities for the account without requiring the client’s express consent to a transaction;
“investment fund” has
the same meaning as in National Instrument 81-106 Investment Fund Continuous Disclosure;
“marketplace” has the same meaning as in
National Instrument 21-101 Marketplace Operation;
“MD&A” has the same meaning as in National
Instrument 51-102 Continuous Disclosure Obligations;
“non-redeemable investment fund” has the
same meaning as in National Instrument 81-106 Investment Fund Continuous Disclosure;
“person” includes
| (c) | a partnership, trust, fund, and an association, syndicate, organization or other organized group of persons, whether incorporated
or not, and |
| (d) | an individual or other person in that person’s capacity as a trustee, executor, administrator or personal or other
legal representative. |
“related liabilities” means:
| (a) | liabilities incurred or assumed for the purpose of financing
the acquisition or ownership of financial assets; or |
| (b) | liabilities that are secured by financial assets; |
“Schedule III bank” means an authorized foreign
bank named in Schedule III of the Bank Act (Canada); “spouse” means an individual who
| (a) | is married to another individual and is not living separate
and apart within the meaning of the Divorce Act (Canada), from the other individual, |
| (b) | is living with another individual in a marriage-like relationship, including a marriage-like relationship between individuals
of the same gender, or |
| (c) | in Alberta, is an individual referred to in paragraph (a) or (b), or is an adult interdependent partner within the meaning
of the Adult Interdependent Relationships Act (Alberta). |
“subsidiary” means an issuer
that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary.
For the purposes of paragraph (t) of the definition
of “accredited investor” in the second paragraph of this Schedule III, in British Columbia, an indirect interest means
an economic interest in the person referred to in that paragraph.
For the purpose of this Schedule III, an issuer
is an affiliate of another issuer if
| (a) | one of them is the subsidiary of the other, or |
| (b) | each of them is controlled by the same person. |
Except for the “Employee, Executive Officer, Director
and Consultant Exemptions”, a person (first person) is considered to control another person (second person) if
| (a) | the first person beneficially owns or directly or indirectly exercises control or direction over securities of the second person
carrying votes which, if exercised, would entitle the first person to elect a majority of the directors
of the second person, unless that first person holds the voting securities only to secure an obligation, |
| (b) | the second person is a partnership, other than a limited partnership, and the first person holds more than 50% of the interests
of the partnership, or |
| (c) | the second person is a limited partnership and the general partner of the limited partnership is the first person. |
The foregoing representations
and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such
representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice
of such fact to the Corporation.
The undersigned has executed
this Certificate as of the_________day of______________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IV
ACCREDITED INVESTOR CERTIFICATE
(United States Residents Only)
The Subscriber understands and agrees
that the Units, the Shares, the Warrants and the Warrant Shares (collectively, the “Securities”) have not been and
will not be registered under the United States Securities Act of 1933, as amended (the “1933 Act”), or applicable
state securities laws, and the Units are being offered and sold by the Corporation to the Subscriber in reliance upon Rule 506
of Regulation D under the 1933 Act.
The undersigned represents, warrants
and covenants (which representations, warranties and covenants shall survive the Closing) to the Corporation (and acknowledges
that the Corporation is relying thereon) that:
| (a) | it is purchasing the Units either for its own account for investment purposes only or for the account
of a beneficial purchaser for which it is exercising sole investment discretion and that is purchasing the Units for its own account
for investment purposes only and, in any case, not with a view to resale or distribution and, in particular, it has no intention
to distribute either directly or indirectly any of the Securities in the United States; provided, however, that the Subscriber
may sell or otherwise dispose of any of the Securities pursuant to registration thereof pursuant to the 1933 Act and any applicable
state securities laws or under an exemption from such registration requirements; |
| (b) | it has such knowledge and experience in financial business matters as to be capable of evaluating
the merits and risks of an investment in the Securities and it is able to bear the economic risk of loss of its entire investment; |
| (c) | the Corporation has provided to it the opportunity to ask questions and receive answers concerning
the terms and conditions of the offering and it has had access to such information concerning the Corporation as it has considered
necessary or appropriate in connection with its investment decision to acquire the Securities; |
| (d) | it, and each beneficial purchaser for whom it is acting, if any, satisfies one or more of the categories
of “accredited investor” as defined in Rule 501(a) of Regulation D of the 1933 Act indicated below (the Subscriber
must initial or place an X or a check mark on the appropriate line(s) for itself and for each beneficial purchaser on behalf of
whom it is purchasing, if any): |
| _______Category 1. | A bank, as defined in Section 3(a)(2) of the 1933 Act,
whether acting in its individual or fiduciary capacity; or |
| _______Category 2. | A savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the 1933 Act, whether acting in its individual or fiduciary capacity; or |
| _______Category 3. | A broker or dealer registered pursuant to Section 15 of
the United States Securities Exchange Act of 1934; or |
| _______Category 4. | An insurance company as defined in Section 2(13) of the
1933 Act; or |
| _______Category
5. | An
investment company registered under the United States Investment Company Act of 1940; or |
| _______Category
6. | A
business development company as defined in Section 2(a)(48) of the United States Investment Company Act of 1940; or |
| _______Category 7. | A small business investment company licensed by the U.S.
Small Business Administration under Section 301 (c) or (d) of the United States Small Business Investment Act of 1958;
or |
| _______Category 8. | A plan established and maintained by a state, its political
subdivisions or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with
total assets in excess of US $5,000,000; or |
| _______Category 9. | An employee benefit plan within the meaning of the United
States Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as
defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment
adviser, or an employee benefit plan with total assets in excess of US$5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons who are accredited investors; or |
| _______Category
10. | A
private business development company as defined in Section 202(a)(22) of the United States Investment Advisers Act of 1940;
or |
| _______Category 11. | An organization described in Section 501(c)(3) of the United
States Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for
the specific purpose of acquiring the securities offered, with total assets in excess of US $5,000,000; or |
| _______Category 12. | Any director or executive officer of the Corporation; or |
| _______Category 13. | A natural person whose individual net worth, or joint net
worth with that person’s spouse, at the date hereof exceeds US $1,000,000; or |
| _______Category 14. | A natural person who had an individual income in excess
of US $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of US $300,000 in
each of those years and has a reasonable expectation of reaching the same income level in the current year; or |
| _______Category 15. | A trust, with total assets in excess of US $5,000,000,
not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person
as described in Rule 506(b)(2)(ii) under the 1933 Act; or |
| _______Category 16. | Any entity in which all of the equity owners meet the requirements
of at least one of the above categories; |
| (e) | it understands that if it decides to offer, sell or otherwise transfer the Securities, it will
not offer, sell or otherwise transfer any of such securities directly or indirectly, unless: |
| (i) | the transfer is to the Corporation; |
| (ii) | the transfer is made outside the United States in a transaction meeting the requirements of Rule
904 of Regulation S under the 1933 Act and in compliance with applicable local laws and regulations; |
| (iii) | the transfer is made in compliance with the exemption from the registration requirements under
the 1933 Act provided by Rule 144 or Rule 144A thereunder, if available, and in accordance with applicable state securities laws;
or |
| (iv) | the Securities are transferred in a transaction that does not require registration under the 1933
Act or any applicable state laws and regulations governing the offer and sale of securities; |
and it has prior to such sale furnished
to the Corporation an opinion of counsel of recognized standing or other evidence of exemption, in either case reasonably satisfactory
to the Corporation;
| (f) | it understands that upon the issuance thereof, and until such time as the same is no longer required
under the applicable requirements of the 1933 Act or applicable U.S. state laws and regulations, the certificates representing
the Securities, and all securities issued in exchange therefor or in substitution thereof, will bear a legend in substantially
the following form, or such other legend, as may be advised by legal counsel for the Corporation: |
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY,
(B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE
STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION,
IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY”
IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
provided, that
if any of the Securities are being sold under clause (B) above, at a time when the Corporation is a “foreign Corporation”
as defined in Rule 902 under the 1933 Act, the legend set forth above may be removed by providing a declaration to the Corporation
and its transfer agent in such form as the Corporation may from time to time prescribe, together with such other evidence, including
an opinion of counsel in form satisfactory to the Corporation and its transfer agent, as the Corporation and its transfer agent
may from time to time prescribe, to the effect that the sale of such securities is being made in compliance with Rule 904 of Regulation
S under the 1933 Act;
provided further,
that if any of the Securities are being sold pursuant to Rule 144 of the 1933 Act, the legend may be removed by delivery to the
Corporation’s transfer agent of an opinion satisfactory to the Corporation to the effect that the legend is no longer required
under applicable requirements of the 1933 Act or state securities laws;
| (g) | it consents to the Corporation making a notation on its records or giving instruction to the registrar
and transfer agent of the Corporation in order to implement the restrictions on transfer set forth and described herein; |
| (h) | it understands and acknowledges that the Warrants may not be exercised in the United States or
by or on behalf of a U.S. Person unless an exemption is available from the registration requirements of the 1933 Act and the securities
laws of all applicable states and the holder has furnished an opinion of counsel of recognized standing in form and substance satisfactory
to the Corporation to such effect; provided that a Subscriber who purchased Units pursuant to the Offering will not be required
to deliver an opinion of counsel in connection with the due exercise of the Warrants that comprise part of the Units if the Subscriber
delivers to the Corporation a warrant exercise form containing representations, warranties and agreements substantially as included
in this U.S. Accredited Investor Certificate; |
| (i) | it understands and acknowledges that the Corporation has no obligation or present intention of
filing with the United States Securities and Exchange Commission or with any state securities administrator any registration statement
in respect of resales of the Securities in the United States; |
| (j) | the office or other address of the Subscriber at which the Subscriber received and accepted the
offer to purchase the Units is the address listed as the “Subscriber’s Address” on the signature page of the
Subscription Agreement; |
| (k) | it acknowledges that it has not purchased the Securities as a result of any form of general solicitation
or general advertising (as such terms are used in Regulation D under the 1933 Act), including, but not limited to, any 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; |
| (l) | it understands and agrees that there may be material tax consequences to the Subscriber of an acquisition,
holding, exercise or disposition of the Securities. The Corporation does not give any opinion or makes any representation with
respect to the tax consequences to the Subscriber under United States, state, local or foreign tax law of the Subscriber’s
acquisition, holding, exercise or disposition of such securities, and the Subscriber acknowledges that the undersigned is solely
responsible for determining the tax consequences to its investment. In particular, no determination has been made whether the Corporation
will be a “passive foreign investment company” within the meaning of Section 1297 of the United States Internal Revenue
Code; |
| (m) | it understands and acknowledges that the Corporation is not obligated to remain a “foreign
Corporation” (as such is defined in Rule 405 promulgated under the 1933 Act); |
| (n) | it understands and agrees that the financial statements of the Corporation have been prepared in
accordance with Canadian generally accepted accounting principles, which differ in some respects from United States generally accepted
accounting principles, and thus may not be comparable to financial statements of United States companies; and |
| (o) | it understands and agrees that the certificates representing the Warrants, and all certificates
issued in exchange therefor or in substitution thereof, shall bear the following legend, or such other legend, as may be advised
by legal counsel for the Corporation: |
“THIS
WARRANT AND THE SECURITIES DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY
NOT BE EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT
AND SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION
OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. “UNITED STATES” AND “U.S.
PERSON” ARE AS DEFINED BY REGULATION S UNDER THE SECURITIES ACT.”
The capitalized terms not defined in this
Schedule shall have the meanings ascribed to them in the Subscription Agreement.
The foregoing representations
and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such
representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice
of such fact to the Corporation.
The undersigned has executed
this Certificate as of the_______day of____________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE V
CONFIRMATION OF RELATIONSHIP
FAMILY, FRIENDS AND BUSINESS ASSOCIATES
CERTIFICATE
(British Columbia, Alberta, Manitoba,
Quebec, Yukon, Nunavut, Northwest Territories and
Maritime Residents Only)
The Subscriber represents and warrants
to the Corporation that the Subscriber is buying the Securities as principal and that the Subscriber has read the following definitions
from National Instrument 45-106 Prospectus and Registration Exemptions and certifies that the Subscriber has the relationship(s)
to the Corporation or its directors, executive officers, control persons or founders by virtue of the
Subscriber being:
(Please initial or place an X or a place
a check mark next to one or more as applicable)
_______ |
(a) |
I am a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(b) |
I am a spouse, parent, grandparent, brother, sister, child or grandchild of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(c) |
I am a parent, grandparent, brother, sister, child or grandchild of the spouse of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(d) |
I am a close personal friend of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(e) |
I am a close business associate of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(f) |
I am a founder of the Corporation or a spouse, parent, grandparent, brother, sister, child, grandchild or close personal close business associate of a founder of the Corporation. |
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(g) |
I am a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the Corporation. |
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(h) |
I am a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in the categories (a) to (g) above. |
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(i) |
I am a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in the categories (a) to (g) above. |
and if any of (b) through (i) is initialled or marked, the name
of the director, executive officer, control person or
founder is:
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(Print name of director, executive officer, control person or founder) |
For the purposes of the
foregoing terms in bold, the definitions in Schedule III and the following guidance apply:
“close business associate”
is an individual who has had sufficient prior business dealings with the director, executive officer, founder
or control person of the Corporation to be in a position to assess their capabilities and trustworthiness.
An individual is not
a close business associate solely because the individual is (a) a member of the same organization, association or religious group,
or (b) a client, customer, former client or former customer.
The relationship between the individual
and the director, executive officer, founder or control person must be direct. For example, the exemption
is not available for a close business associate of a close business associate of a director, executive officer, founder
or control person.
“close personal
friend” is an individual who known the director, executive officer, founder or control person
well enough and has known them for a sufficient period of time to be in a position to assess their capabilities and trustworthiness.
The term “close personal friend” can include a family member who is not already specifically identified in the exemption
above.
An individual is not
a close personal friend solely because the individual is a relative, a member of the same organization, association or religious
group or a current or former client or customer.
The relationship between the individual
and the director, executive officer, founder or control person must be direct. For example, the exemption
is not available for a close personal friend of a close personal friend of the director, executive officer, founder
or control person.
The foregoing representations
and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such
representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice
of such fact to the Corporation.
The undersigned has executed
this Certificate as of the_________day of_______________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE VI
CONFIRMATION OF RELATIONSHIP
FOUNDER, CONTROL PERSON AND FAMILY CERTIFICATE
(Ontario Residents Only)
The Subscriber represents and warrants
to the Corporation that the Subscriber has read the following definitions from National Instrument 45-106 Prospectus and Registration
Exemptions and certifies that the Subscriber has the relationship(s) to the Corporation or its directors, executive
officers, control persons or founders by virtue of the Subscriber being:
(initial or place an X or place a check
mark next to one or more as applicable)
| __(a) | a founder of the Corporation; |
| __(b) | an affiliate of a founder of the Corporation; |
| __(c) | a spouse, parent, brother, sister, grandparent, grandchild or child of an executive officer,
director or founder of the Corporation; or |
| __(d) | a control person of the Corporation. |
and if (c) is initialled or marked, the director, executive
officer or founder is:
_________________________________________________________
(Print name of director, executive officer or founder)
For the purposes of the
foregoing terms in bold, the definitions in Schedule III apply.
The foregoing representations
and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such
representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice
of such fact to the Corporation.
The undersigned has executed
this Certificate as of the_________day of_____________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE VII
RISK ACKNOWLEDGEMENT
SASKATCHEWAN CLOSE PERSONAL FRIENDS AND
CLOSE BUSINESS ASSOCIATES
(Saskatchewan Residents Only)
WARNING
I acknowledge that this is a risky
investment:
| · | I am investing entirely at my own risk. |
| · | No securities regulatory authority or regulator has evaluated or endorsed the merits of these securities. |
| · | The person selling me these securities is not registered with a securities regulatory authority
or regulator and has no duty to tell me whether this investment is suitable for me. [Instruction: Delete if sold by registrant] |
| · | I will not be able to sell these securities for 4 months. |
| · | I could lose all the money I invest. |
| · | I do not have a 2-day right to cancel my purchase of these securities or the statutory rights of
action for misrepresentation I would have if I were purchasing the securities under a prospectus. I do have a 2- day right to cancel
my purchase of these securities if I receive an amended offering document. |
I am investing $____________[total
consideration] in total; this includes any amount I am obliged to pay in future.
I am a close
personal friend or close business associate of__________________________[state name], who is a_____________________[state
title - founder, director, executive officer or control person] of Stellar Biotechnologies, Inc.
I acknowledge that I am purchasing
based on my close relationship with ____________________________ [state name of founder, director, executive officer or control
person] whom I know well enough and for a sufficient period of time to be able to assess her/his capabilities and trustworthiness.
I acknowledge that this is a risky investment
and that I could lose all the money I invest.
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Signature of Subscriber |
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Print name of Subscriber |
Sign 2 copies of this document. Keep
one copy for your records.
You are buying Exempt Market Securities
They are called exempt market securities because two
parts of securities law do not apply to them. If an issuer wants to sell exempt market securities to you:
| · | the issuer does not have to give you a prospectus (a document that describes the investment in
detail and gives you some legal protections), and |
| · | the securities do not have to be sold by an investment dealer registered with a securities regulatory
authority or regulator. |
There are restrictions on your ability to
resell exempt market securities. Exempt market securities are more risky than other securities.
You may not receive any written information about the issuer
or its business
If you have any questions about the issuer
or its business, ask for written clarification before you purchase the securities. You should consult your own professional advisers
before investing in the securities.
You will not receive advice [Instruction: Delete if
sold by registrant]
Unless you consult your own professional advisers,
you will not get professional advice about whether the investment is suitable for you.
For more information on the exempt market,
refer to the Saskatchewan Financial Services Commission’s website at http://www.sfsc.gov.sk.ca.
[Instruction: The Subscriber must sign 2 copies of this form.
The Subscriber and the issuer must each receive a signed copy.]
SCHEDULE VIII
MINIMUM INVESTMENT AMOUNT CERTIFICATE
(Non United States Residents or Offshore
Residents)
The Subscriber represents
and warrants to the Corporation that:
| (a) | the Subscriber is buying the Securities as principal; |
| (b) | the Securities have an acquisition cost to the Subscriber of not less than CDN$150,000 paid in
cash at the time of the distribution; and |
| (c) | the distribution is of a security of a single issuer. |
The foregoing representations
and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such
representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice
of such fact to the Corporation.
The undersigned has executed
this Certificate as of the________day of___________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IX
CONFIRMATION OF RESIDENCE OUTSIDE
CANADA
AND THE UNITED STATES OF AMERICA
NON RESIDENT CERTIFICATE
The Subscriber represents and warrants and
certifies to the Corporation that the Subscriber:
| (a) | is not a resident of Canada; |
| (b) | did not sign this Subscription Agreement in Canada; |
| (c) | is not a resident of the United States of America; |
| (d) | is not U.S. Person, at that term is defined in Regulation
S under the United States Securities Act of 1933; |
| (e) | did not sign this Subscription Agreement in the United
States of America; |
| (f) | has fully read this Subscription Agreement, and without
restricting the foregoing, has read Section 2 of the General Provisions to this Subscription Agreement. |
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the______________day of________________________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE X
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
This Form will remain on file with
the Exchange and must be completed if required under section 4(b) of Part II of Form 4B. The corporation, trust, portfolio manager
or other entity (the “Placee”) need only file it on one time basis, and it will be referenced for all subsequent Private
Placements in which it participates. If any of the information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed Issuers. If as a result of the Private Placement, the Placee
becomes an Insider of the Issuer, Insiders of the Placee are reminded that they must file a Personal Information Form (2A) or,
if applicable, Declarations, with the Exchange.
| (b) | Complete Address: _________________________________________________________________ |
| (c) | Jurisdiction
of Incorporation or Creation: _________________________________________________ |
2. |
(a) |
Is the Placee purchasing securities as a portfolio manager: (Yes/No)? _______________ |
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(b) |
Is the Placee carrying on business as a portfolio manager outside of Canada: (Yes/No)? ________ |
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3. |
If the answer to 2(b) above was “Yes”, the undersigned certifies that: |
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(a) |
it is purchasing securities of an Issuer on behalf of managed accounts for which it is making the investment decision to purchase the securities and has full discretion to purchase or sell securities for such accounts without requiring the client’s express consent to a transaction; |
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(b) |
it carries on the business of managing the investment portfolios of clients through discretionary authority granted by those clients (a “portfolio manager” business) in _________________[jurisdiction], and it is permitted by law to carry on a portfolio manager business in that jurisdiction; |
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(c) |
it was not created solely or primarily for the purpose of purchasing securities of the Issuer; |
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(d) |
the total asset value of the investment portfolios it manages on behalf of clients is not less than $20,000,000; and |
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(e) |
it has no reasonable grounds to believe, that any of the directors, senior officers and other insiders of the Issuer, and the persons that carry on investor relations activities for the Issuer has a beneficial interest in any of the managed accounts for which it is purchasing. |
4. |
If the answer to 2(a). above was “No”, please provide the names and addresses of Control Persons of the Placee: |
Name * |
City |
Province or State |
Country |
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* If the Control Person is not an individual, provide the name of the individual that makes the investment decisions on behalf of the Control Person. |
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5. |
Acknowledgement - Personal Information and Securities Laws |
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(a) |
“Personal Information” means any information about an identifiable individual, and includes information contained in sections 1, 2 and 4, as applicable, of this Form. |
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The undersigned hereby acknowledges and agrees that it has obtained the express written consent of each individual to: |
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(i) |
the disclosure of Personal Information by the undersigned to the Exchange (as defined in Appendix 6B) pursuant to this Form; and |
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(ii) |
the collection, use and disclosure of Personal Information by the Exchange for the purposes described in Appendix 6B or as otherwise identified by the Exchange, from time to time. |
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(b) |
The undersigned acknowledges that it is bound by the provisions of applicable Securities Law, including provisions concerning the filing of insider reports and reports of acquisitions. |
Dated and certified (if applicable), acknowledged and agreed,
at _______________________________ on________________________, 2012.
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(Name of Subscriber - please print) |
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(Authorized Signature) |
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(Official Capacity - please print) |
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(Please print name of individual whose signature appears above) |
THIS IS NOT A PUBLIC DOCUMENT
Exhibit 4.4
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE
SECURITY BEFORE MAY 3, 2013.
THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION
S UNDER THE SECURITIES ACT.
THIS
WARRANT CERTIFICATE IS VOID IF NOT EXERCISED ON OR BEFORE 5:00 P.M. (PACIFIC TIME) ON JANUARY 4, 2016.
WARRANT CERTIFICATE
(Relating
to a Private Placement Announced on November 15, 2012)
STELLAR
BIOTECHNOLOGIES, INC.
(Continued
under the laws of the Province of British Columbia)
WARRANT
CERTIFICATE NO. 2012-___ |
_______WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
THIS IS
TO CERTIFY THAT _____________ of __________________________________ (hereinafter referred to as the "holder" or
the "Warrantholder") is entitled to acquire for each Warrant represented hereby, in the manner and subject to
the restrictions and adjustments set forth herein, at any time and from time to time until 5:00 p.m. (Pacific time) (the "Expiry
Time") on January 4, 2016 (the “Expiry Date”), one fully paid and non-assessable common share ("Common
Share") in the capital of STELLAR BIOTECHNOLOGIES, INC. (the "Company").
These
Warrants may only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041,
or the registered office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5.
These Warrants
are issued subject to the terms and conditions appended hereto as Schedule "A".
IN WITNESS
WHEREOF, the Company has caused this Warrant Certificate to be executed by a duly authorized director of the Company.
DATED for
reference the 2nd day of January, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Scott Davis, Chief Financial Officer |
(See terms and conditions attached hereto)
SCHEDULE "A"
TERMS AND CONDITIONS FOR WARRANT
(Relating to a Private
Placement Announced on November 15, 2012)
Terms and Conditions attached to the Warrant issued
by STELLAR BIOTECHNOLOGIES, INC.. (the “Company”) and dated for reference the 2nd
day of January, 2013.
ARTICLE 1
INTERPRETATION
In these Terms and Conditions,
unless there is something in the subject matter or context inconsistent therewith:
| (a) | "Common Shares" means the common shares in the capital of the Company to be issued pursuant to the exercise
of Warrants; |
| (b) | "Company" means STELLAR BIOTECHNOLOGIES, INC. unless and until a successor corporation shall have become
such in the manner prescribed in Article 6, and thereafter "Company" shall mean such successor corporation; |
| (c) | "Company's Auditors" means an independent firm of accountants duly appointed as auditors of the Company; |
| (d) | "Exchange" means the TSX Venture Exchange or such other stock exchange on which the Company's Common Shares
are listed and posted for trading; |
| (e) | “Exercise Date” has that meaning ascribed to that term in Section 3.2 of this Schedule “A”; |
| (f) | "Exercise Price" means the price of $0.40 per share if exercised on or before January 4, 2016; |
| (g) | "Expiry Time" means 5:00 p.m. (Pacific Time) on the Expiry Date; |
| (h) | “Expiry Date” means January 4, 2016. |
| (i) | "herein", "hereby" and similar expressions refer to these Terms and Conditions as the same
may be amended or modified from time to time; and the expression "Article" and "Section" followed by a number
refer to the specified Article or Section of these Terms and Conditions; |
| (j) | "Issue Date" means the issue date of the Warrant shown on the face page of the Warrant Certificate; |
| (k) | "person" means an individual, corporation, partnership, trustee or any unincorporated organization and words
importing persons have a similar meaning; |
| (l) | “Subscription Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”; |
| (m) | "Warrant" means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and |
| (n) | "Warrant Certificate" means the certificate to which these Terms and Conditions are attached. |
| 1.2 | Interpretation Not Affected by Headings |
| (a) | The division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation thereof. |
| (b) | Words importing the singular number include the plural and vice versa and words importing the masculine gender include the
feminine and neuter genders. |
The terms
hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada.
ARTICLE 2
ISSUE OF WARRANT
That number
of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
Subject to
any other written agreement between the Company and the Warrantholder, the Company may at any time and from time to time undertake
further equity or debt financing and may issue additional Common Shares, warrants or grant options or similar rights to purchase
Common Shares to any person.
| 2.3 | Issue in Substitution for Lost Warrants |
If the Warrant Certificate becomes
mutilated, lost, destroyed or stolen:
| (a) | the Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed
or stolen, in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate;
and |
| (b) | the holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction
or theft of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith. |
| 2.4 | Warrantholder Not a Shareholder |
The Warrant
shall not constitute the holder a shareholder of the Company, nor entitle it to any right or interest in respect thereof except
as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
| 3.1 | Method of Exercise of the Warrant |
The right
to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior to the Expiry Time, by the holder surrendering
this Warrant Certificate, with a duly completed and executed subscription form substantially in the form attached hereto as Schedule
"B" (the “Subscription Form”) and a certified cheque, bank draft or a money order payable to or to
the order of the Company, for the Exercise Price applicable at the time of surrender in respect of the Common Shares subscribed
for in lawful money of Canada, to the Company.
| 3.2 | Effective Date of Exercise of the Warrant |
This Warrant
Certificate together with such Exercise Form, certified cheque, bank draft or money order will be deemed to be so surrendered and
exercised only upon actual receipt thereof by the Company as set out above (the “Exercise Date”).
| 3.3 | Effect of Exercise of the Warrant |
| (a) | Upon surrender and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and non-assessable
shares and the holder shall become the holder of record of such Common Shares on the date of such surrender and payment; and |
| (b) | Within five business days after surrender and payment as aforesaid, the Company shall forthwith cause the issuance to the holder
of a certificate for the Common Shares purchased as aforesaid. |
| 3.4 | Subscription for Less than Entitlement |
The holder
may subscribe for and purchase a number of Common Shares less than the number which it is entitled to purchase pursuant to the
surrendered Warrant Certificate. In the event of any purchase of a number of Common Shares less than the number which can be purchased
pursuant to the Warrant Certificate, the holder shall be entitled to receive a new Warrant Certificate with respect to the remaining
balance of the Common Shares purchasable under this Warrant Certificate.
| 3.5 | Expiration of the Warrant |
After the
Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and of no effect.
| 3.6 | Hold Periods and Legending of Share Certificate |
If any of
the Warrants are exercised prior to May 3, 2013, the certificates representing the Common Shares to be issued pursuant to such
exercise shall bear the following legends:
“Unless
permitted under securities legislation, the holder of the securities shall not trade the securities before May 3, 2013.”
ARTICLE 4
ADJUSTMENTS
The number of Common Shares purchasable
upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment as follows:
| (a) | in the event the Company shall: |
| (i) | pay a dividend in Common Shares or make a distribution in Common Shares; |
| (ii) | subdivide its outstanding Common Shares; |
| (iii) | combine its outstanding Common Shares into a smaller number of Common Shares; or |
| (iv) | issue by reclassification of its Common Shares other securities of the Company (including any such
reclassification in connection with a consolidation, merger, amalgamation or other combination in which the Company is the surviving
corporation); |
the number
of Common Shares (or other securities) purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so
that the Warrantholder shall be entitled to receive the kind and number of Common Shares or other securities of the Company which
it would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant
been exercised immediately prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant
to this subsection (a) shall become effective immediately after the effective date of such event retroactive to the record date,
if any, for such event.
| (b) | In case the Company shall issue rights, options or warrants to all or substantially all holders
of its outstanding Common Shares, without any charge to such holders, entitling them (for a period within 45 days after the record
date mentioned below) to subscribe for or purchase Common Shares at a price per share which is lower than 95% of the current market
price at the record date mentioned below than the then current market price per Common Share (as determined in accordance with
subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined
by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of which the denominator shall be the number of Common Shares
outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at the current market price per Common Share at such record
date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective immediately
after the record date for the determination of shareholders entitled to receive such rights, options or warrants. |
| (c) | In case the Company shall distribute to all or substantially
all holders of its Common Shares evidences of its indebtedness or assets (excluding cash dividends or distributions payable out
of consolidated earnings or earned surplus and dividends or distributions referred to in subsection(a) above or in subsection
(d) below or rights, options or warrants, or convertible or exchangeable securities containing the right to subscribe for or purchase
Common Shares (excluding those referred to in subsection (b) above)), then in each case the number of Common Shares thereafter
purchasable upon the exercise of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable
upon the exercise of each Warrant by a fraction, of which the numerator shall be the then current market price per Common Share
(as determined in accordance with subsection (d) below) on the date of such distribution, and of which the denominator shall be
the then current market price per Common Share less the then fair value (as determined by the board of directors of the Company,
acting reasonably) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights, options
or warrants, or of such convertible or exchangeable securities applicable to one Common Share. Such adjustment shall be made whenever
any such distribution is made, and shall become effective on the date of distribution retroactive to the record date for the determination
of shareholders entitled to receive such distribution. |
In the event
of the distribution by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or
securities convertible or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable
upon the exercise of each Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company,
such subsidiary or both, as the Company shall reasonably determine, the shares or other securities to which such Warrantholder
would have been entitled if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment
as provided in this section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other
securities shall be made during the term of a Warrant or upon the exercise of a Warrant.
| (d) | For the purpose of any computation under subsections (b) and (c) of this section 4.1, the current
market price per Common Share at any date shall be the weighted average price per Common Share for twenty-five (25) consecutive
trading days, commencing not more than 45 trading days before such date on the stock exchange on which the Common Shares are then
traded; provided if the Common Shares are then traded on more than one stock exchange, then on the stock exchange on which the
largest volume of Common Shares were traded during such twenty-five (25) consecutive trading day period. The weighted average price
per Common Share shall be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market,
as the case may be, during the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes
of this subsection (d), trading day means, with respect to a stock exchange, a day on which such exchange is open for the transaction
of business. Should the Common Shares not be listed on any stock exchange the current market price per Common Share at any date
shall be determined by the board of directors of the Company, acting reasonably. |
| (e) | In any case in which this Article 4 shall require that any adjustment in the Exercise Price be
made effective immediately after a record date for a specified event, the Company may elect to defer until the occurrence of the
event the issuance, to the holder of any Warrant exercised after that record date, of the Common Shares and other shares of the
Company, if any, issuable upon the exercise of the Warrant over and above the Common Shares and other shares of the Company; provided,
however, that the Company shall deliver to the holder an appropriate instrument evidencing the holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment. |
| (f) | No adjustment in the number of Common Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by reason of this subsection (f) are not required to be
made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share. |
| (g) | Wherever the number of Common Shares purchasable upon the exercise of each Warrant is adjusted,
as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Common Shares purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Common Shares
purchasable immediately thereafter. |
| (h) | No adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need
be made under subsections (b) and (c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants,
or convertible or exchangeable securities, or evidences of indebtedness or assets referred to in those subsections which the Warrantholder
would have been entitled to receive had the Warrants been exercised prior to the happening of such event or the record date with
respect thereto. |
| (i) | In the event that at any time, as a result of an adjustment made pursuant to subsection (a) above,
the Warrantholder shall become entitled to purchase any securities of the Company other than Common Shares, thereafter the number
of such other shares so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares
contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this
Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities. |
| (j) | Upon the expiration of any rights, options, warrants or conversion or exchange privileges, if any
thereof shall not have been exercised, the Exercise Price and the number of Common Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if: |
| (i) | the only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the
exercise of such rights, options, warrants or conversion or exchange rights; and |
| (ii) | such Common Shares, if any, were issued or sold for the consideration actually received by the
Company upon such exercise plus the aggregate consideration, if any, actually received by the Company for the issuance, sale or
grant of all such rights, options, warrants or conversion or exchange rights whether or not exercised; |
provided
further, that no such readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares
purchasable upon the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect
to the issuance, sale or grant of such rights, options, warrants or conversion or exchange rights.
| 4.2 | Voluntary Adjustment by the Company |
Subject to
requisite Exchange approval, the Company may, at its option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
Whenever the
number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of such Common Shares is adjusted,
as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage prepaid, notice of such adjustment
or adjustments.
| 4.4 | No Adjustment for Dividends |
Except as provided
in section 4.1 of this Article 4, no adjustment in respect of any dividends shall be made during the term of a Warrant or upon
the exercise of a Warrant.
| 4.5 | Preservation of Purchase Rights Upon Merger, Consolidation, etc. |
In connection
with any consolidation of the Company with, or amalgamation or merger of the Company with or into, another corporation (including,
without limitation, pursuant to a "takeover bid", "tender offer" or other acquisition of all or substantially
all of the outstanding Common Shares) or in case of any sale, transfer or lease to another corporation of all or substantially
all the property of the Company, the Company or such successor or purchasing corporation, as the case may be, shall execute with
the Warrantholder an agreement that the Warrantholder shall have the right thereafter, upon payment of the Exercise Price in effect
immediately prior to such action, to purchase upon exercise of each Warrant the kind and amount of shares and other securities
and property which it would have owned or have been entitled to receive after the happening of such consolidation, amalgamation,
merger, sale, transfer or lease had such Warrant been exercised immediately prior to such action, and the Warrantholder shall be
bound to accept such shares and other securities and property in lieu of the Common Shares to which it was previously entitled;
provided, however, that no adjustment in respect of dividends, interest or other income on or from such shares or other securities
and property shall be made during the term of a Warrant or upon the exercise of a Warrant. Any such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Schedule "A".
The provisions of this Article 4 shall similarly apply to successive consolidations, mergers, amalgamation, sales, transfers or
leases.
| 4.6 | Determination of Adjustments |
If any questions
shall at any time arise with respect to the Exercise Price, such question shall be conclusively determined by the Company's Auditors,
or, if they decline to so act, any other firm of Chartered Accountants, in Toronto, Ontario, that the Company may designate and
the Warrantholder, acting reasonably, may approve, and who shall have access to all appropriate records and such determination
shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE
COMPANY
| 5.1 | Reservation of Common Shares |
The Company
will reserve and there will remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights
of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
| 6.1 | Company May Consolidate, etc. on Certain Terms |
Nothing herein
contained shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations,
or a conveyance or transfer of all or substantially all the properties and estates of the Company as an entirety to any corporation
lawfully entitled to acquire and operate same, provided, however, that the corporation formed by such consolidation, amalgamation
or merger or which acquires by conveyance or transfer all or substantially all the properties and estates of the Company as an
entirety shall, simultaneously with such amalgamation, merger, conveyance or transfer, assume the due and punctual performance
and observance of all the covenants and conditions hereof to be performed or observed by the Company.
| 6.2 | Successor Company Substituted |
In case the
Company, pursuant to section 6.1 shall be consolidated, amalgamated or merged with or into any other corporation or corporations
or shall convey or transfer all or substantially all of its properties and estates as an entirety to any other corporation, the
successor corporation formed by such consolidation or amalgamation, or into which the Company shall have been consolidated, amalgamated
or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed to and be substituted for the Company
hereunder and such changes in phraseology and form (but not in substance) may be made in the Warrant Certificate and herein as
may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
This Warrant Certificate may only
be amended by a written instrument signed by the parties hereto.
ARTICLE 8
MISCELLANEOUS
Time is of the essence of the terms
of this Warrant Certificate.
Any notice
or other communication to be given in connection with this Warrant Certificate must be in writing and given by personal delivery
to the addresses listed on the cover page of this Warrant Certificate.
Subject to
applicable securities legislation and the rules, policies, notices and orders issued by applicable securities regulatory authorities,
including the TSX Venture Exchange (or any other stock exchange on which the Common Shares are listed), the Warrants evidenced
hereby (or any portion thereof) may be assigned or transferred by the holder by duly completing and executing the transfer form
attached hereto as Schedule “C”. The rights and obligations of the parties hereunder shall be binding upon and enure
to the benefit of their successors and permitted assigns.
SCHEDULE "B"
SUBSCRIPTION FORM
(Private Placement Announced
November 15, 2012)
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
The undersigned
Holder of the within Warrants hereby subscribes for____________common shares (the “Common Shares”) of STELLAR
BIOTECHNOLOGIES, INC. (the “Company”) pursuant to the within Warrants at $0.40 per Common Share on
the terms specified in the said Warrants. This subscription is accompanied by a certified cheque or bank draft payable to or to
the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription:
(check one):
1. ¨ The
undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities
Act of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any
individual resident in the United States, any partnership or corporation organized or incorporated under the laws of the
United States, and any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of
exercise it is not within the United States and it did not execute and deliver this subscription form in the United States,
and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S.
Person or person within the United States.
2. ¨ The
undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Company to
the effect that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the
U.S. Securities Act and applicable state securities laws or are exempt from registration thereunder.
3. ¨ The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act)
that purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account or the
account of another Accredited Investor, (ii) it is exercising the Warrants for its own account or the account of such other
Accredited Investor, (iii)it remains an Accredited Investor on the date of exercise of
the Warrants, and (iv) if the Warrants are being exercised on behalf of another person, such person was an Accredited
Investor on the date the undersigned purchased the Warrants from the Company for its account and remains an Accredited
Investor on the date of exercise of the Warrants.
Note: The Common
Shares will not be registered or delivered to a U.S. address unless the undersigned has checked box 2 or box 3 above and satisfied
the applicable requirements thereof. A legend will be placed on any Common Shares issued pursuant to box 2 or box 3 above to the
effect that the Common Shares may not be transferred except pursuant to an exemption from registration under the U.S. Securities
Act and all applicable state securities laws.
The undersigned hereby directs that
the Common Shares be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
|
|
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|
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|
|
|
|
|
|
|
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DATED this_______day of __________________, 20 ___.
Name of Holder:
|
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Signature of Holder |
|
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Mailing Address: |
|
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Instructions:
1. | The signature to the subscription must be the signature of the person appearing on the face of the Warrant Certificate. |
2. | If there is more than one holder of the Warrants, all holders must sign. |
3. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation
or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to
sign satisfactory to the Company. |
4. | If the Warrant certificate and the form of subscription are being forwarded by mail, registered mail must be employed. |
SCHEDULE "C"
TRANSFER FORM
(Private Placement Announced
November 15, 2012)
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ____________________________________(name), of ________________________________________
(address), ___________________________ Warrants of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) registered
in the name of the undersigned on the records of the Company represented by the within warrant certificate and irrevocably appoints_______________________________the
attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.
The undersigned hereby certifies
that the transfer of these securities is not being made to, and the offer of these securities was not made to, and the person named
above is not, a person in the United States (as such term is defined in Regulation S under the United States Securities Act of
1933, as amended).
DATED this ______day of,_____________,
20 __.
|
|
|
(Witness) |
|
(Signature of Registered Warrant Holder) |
|
|
|
|
|
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|
|
(Print name of Registered Warrant Holder) |
Signature of transferor guaranteed
by:
|
* |
|
* Authorized Signature Number |
|
|
NOTE: The signature of the
Holder to this assignment must correspond exactly with the name of the Holder as set forth on the face of this Warrant certificate
in every particular, without alteration or enlargement or any change whatsoever and the signature must be guaranteed by a Canadian
chartered bank or by a Canadian trust company or by a medallion signature guarantee from a member of a recognized Signature Medallion
Guarantee Program.
Instructions:
1. | Signature of transferor must be the signature of the person appearing on the face of the Warrant Certificate. |
2. | If there is more than one person appearing on the face of the Warrant Certificate, all must sign. |
3. | If the Transfer of Warrants is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation
or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to
sign satisfactory to the Company. |
4. | If the Warrant certificate and the form of transfer are being forwarded by mail, registered mail must be employed. |
Exhibit 4.5
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE MAY 3, 2013.
THESE OPTIONS AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY REGULATION
S UNDER THE SECURITIES ACT.
______________
OPTIONS
OPTION CERTIFICATE
STELLAR BIOTECHNOLOGIES, INC.
332 E. Scott Street
Port Hueneme, California 93041
Tel: (805) 488-2800 / Fax:
(805) 488-2889
THESE OPTIONS ARE NON-TRANSFERABLE.
THIS CERTIFIES that, for value received:
__________________________
__________________________
__________________________
(hereinafter referred to as the "Holder")
is the registered holder of that number of Options
(collectively, the "Options") of Stellar Biotechnologies, Inc. (the "Issuer") set forth above.
Underlying Securities and Exercise Terms
Subject to adjustment as herein
provided, each Option entitles the Holder to purchase one unit (collectively, the "Units") of the Issuer at a price of
CDN$0.25 per Unit until 5:00 pm (Pacific Time) on January 4, 2016. Each Unit shall be comprised of one common share (collectively,
the "Shares") of the Issuer as constituted on January 2, 2013, and one non-transferable share purchase warrant (collectively,
the "Warrants"). Each Warrant shall entitle the holder thereof to purchase one common share (collectively, the "Warrant
Shares") of the Issuer as constituted on January 2, 2013, at a price of CDN$0.40 per Warrant Share if exercised on or before
5:00 pm (Pacific Time) on January 4, 2016. The form of certificate representing the Warrants shall be as attached hereto as Schedule
"B". The Options, Shares, Warrants and Warrant Shares are collectively referred to herein as the "Securities".
The Issuer covenants that the
Shares, when issued upon the due exercise of the Options, will be fully paid and non- assessable securities, and will be free and
clear of all liens, charges and encumbrances. The Issuer covenants that, until the expiry of the Options, it will have reserved
a sufficient number of common shares to provide for the exercise of the rights represented by the Options and the underlying Warrants
issuable on exercise thereof.
Options Exercise Procedure
The Options may be exercised at
any time prior to the expiry of the Options by surrendering to the Issuer:
| (a) | this Option Certificate; |
| (b) | the Subscription Form attached as Schedule "A" hereto, duly completed and executed; and |
| (c) | a certified cheque, bank draft, money order or wire transfer made payable to the Issuer in the aggregate amount of the exercise
price, |
at its head office stated above
or such other office or agency of the Issuer as it may designate by notice in writing delivered to the Holder at the Holder's address
stated above. Upon the due exercise of the Options, the Issuer shall issue or cause to be issued the requisite number of Units
to be issued to the Holder pursuant to said exercise, registered in the name of the Holder or such other person as may be specified
in the Subscription Form, and each such person shall be deemed the holder of such Units with effect from the date of such exercise.
If Units are to be issued to a person other than the Holder, the Holder's signature on the Subscription Form must be guaranteed
by a Canadian chartered bank, a Canadian trust company or a member firm of the TSX Venture Exchange. The Issuer will cause the
certificates representing such Shares and Warrants to be mailed to the Holder at the Holder's address stated above or such other
address(es) as may be specified in the Subscription Form, within five business days of the exercise of the Options.
Upon the due exercise of an
Option, the Option shall be deemed tendered for purposes thereof by the Holder without further notice or action by the Holder,
and all rights under such Option, other than the right to receive certificates representing the Shares and Warrants to which the
Holder is entitled on such exercise, shall wholly cease and terminate and such Option shall be void and of no further effect or
value.
Partial Exercise, Exchange
and Replacement of Certificates
The Options represented by this
Option Certificate may be exercised in whole or in part from time to time. If the Options are exercised in part, the Issuer shall
deliver, with the Units issued pursuant to such exercise, a new Option Certificate representing the balance of the Options remaining
unexercised.
This Option Certificate may be
exchanged, upon its surrender to the Issuer and payment of such administration fee, not exceeding CDN$10.00, as the Issuer may
require, for new Option Certificates of like tenor in denominations which in the aggregate represent the number of Options represented
hereby.
If this Option Certificate is
lost, stolen, mutilated or destroyed, the Issuer may on such reasonable terms as it may in its discretion impose, including but
not limited to the payment of any administration fee, not exceeding CDN$10.00, and the provision of any indemnity by the Holder,
issue and countersign a new Option Certificate of like tenor, denomination and date as the Option Certificate so lost, stolen,
mutilated or destroyed.
All Options shall rank pari
passu, notwithstanding the actual date of issue thereof.
Holding of Options
The Issuer may treat the Holder
as the absolute owner of the Options represented hereby for all purposes, and the Issuer shall not be affected by any notice or
knowledge to the contrary except where the Issuer is required to take notice by statute or by order of a court of competent jurisdiction.
Nothing in this Option Certificate
or in the holding of an Option evidenced hereby shall be construed as conferring upon the Holder any right or interest whatsoever
as a shareholder of the Issuer or entitle the Holder to any right or interest in respect of any Shares except as herein expressly
provided.
Resale Restrictions and Legending Of Certificates
The Options have been, and the
Shares, Warrants and Warrant Shares will be, issued pursuant to an exemption (an "Exemption ") from the registration
and prospectus requirements of applicable securities law. To the extent that the Issuer relies on such Exemption, the Shares, Warrants
and Warrant Shares may be subject to restrictions on resale and transferability contained in applicable securities laws.
In the event that any of the
Securities are subject to a hold period, or any other restrictions on resale and transferability, the Issuer may place a legend
on the certificates representing the Securities as may be required under applicable securities laws, or as it may otherwise deem
necessary or advisable.
Capital Adjustments
If at any time after the date hereof
and prior to the expiry of the Options, and provided that any Options remain unexercised, there shall be:
| (a) | a reclassification of the Issuer's common shares, a change in the Issuer's common shares into other
shares or securities, a subdivision or consolidation of the Issuer's common shares into a greater or lesser number of common shares,
or any other capital reorganization, or |
| (b) | a consolidation, amalgamation or merger of the Issuer with or into any other corporation other
than a consolidation, amalgamation or merger which does not result in any reclassification of the Issuer's outstanding common shares
or a change of the Issuer's common shares into other shares or securities, |
(any of such events being called
a "Capital Reorganization") any Holders who shall thereafter acquire Securities pursuant to the Options shall be entitled
to receive, at no additional cost, and shall accept in lieu of the number of Securities to which such Holder was theretofore entitled
to acquire upon such exercise, the aggregate number of shares, other securities or other property which such Holder should have
been entitled to receive as a result of such Capital Reorganization if, on the effective date or record date thereof as the case
may be, the Holder had been the registered holder of the number of Securities to which such Holder was theretofore entitled to
acquire upon exercise of the Options. If determined appropriate by the Issuer acting reasonably, appropriate adjustments shall
be made in the application of the provisions set forth herein with respect to the rights and interests of the Holder relative to
a Capital Reorganization, to the end that the provisions set forth herein shall correspond as nearly as may be reasonably possible
to the effect of the Capital Reorganization in relation to any shares, other securities or other property thereafter deliverable
upon the exercise of any Options.
In case the Issuer, after the
date hereof, shall take any action affecting any securities of the Issuer, other than as previously set out herein, which in the
opinion of the directors would materially affect the rights and interests of the Holder hereunder, the number of Securities or
other securities which shall be issuable on the exercise of the Options shall be adjusted in such manner, if any, and at such time
as the directors, in their sole discretion, may determine to be equitable in the circumstances, provided that no such adjustment
will be made unless all necessary regulatory approvals, if any, have been obtained. In the event of any question arising with respect
to any adjustment provided for herein, such question shall be conclusively determined by a firm of chartered accountants appointed
by the Issuer at its sole discretion (who may be the Issuer's auditors) and any such determination shall be binding upon the Issuer
and the Holder.
No adjustment shall be made
in respect of any event described herein if the Holder is entitled to participate in such event on the same terms, without amendment,
as if the Holder had exercised the Options prior to or on the effective date or record date of such event. The adjustments provided
for herein are cumulative and such adjustments shall be made successively whenever an event referred to herein shall occur, subject
to the limitations provided for herein. No adjustment shall be made in the number or kind of Securities or other securities which
may be acquired on the exercise of an Option unless it would result in a change of at least one-tenth of a Security or other security.
Any adjustment which may by reason of this paragraph not be required to be made shall be carried forward and then taken into consideration
in any subsequent adjustment.
Notwithstanding any adjustments
provided for herein or otherwise, the Issuer shall not be required, upon the exercise of any Options, to issue fractional Securities
or other securities in satisfaction of its obligations hereunder and, except as provided for herein, any fractions shall be eliminated.
To the extent that the Holder would otherwise be entitled to acquire a fraction of a Security or other security, such right may
be exercised in respect of such fraction only in combination with other rights which in the aggregate entitle the Holder to acquire
a whole number of Securities or other securities. The Holder shall be entitled, upon the elimination of any fraction of a Security
or other security, to be paid in cash for the fair market value for the securities so eliminated. always provided that the Issuer
shall not be required to make any payment if for less than CDN$10.00.
Miscellaneous Provisions
Any delivery or surrender of documents
shall be valid and effective if delivered personally or if sent by registered letter postage prepaid. and any notice shall be valid
and effective if made in writing and transmitted as aforementioned or if transmitted by facsimile with confirmed receipt, in each
case addressed to:
Stellar Biotechnologies, Inc.
332 E. Scott Street
Port Hueneme, California 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
| (b) | if to the Holder, at its address appearing on page 1 of this Option Certificate, |
and such shall be deemed to
have been effectively made and received on the date of personal delivery, if delivered; on the fourth business day after the time
of mailing or upon actual receipt, whichever is sooner, if sent by registered letter (except the delivery of documents to exercise
the Options, in which case actual receipt is required); or on the first business day after the time of facsimile transmission.
if sent by facsimile. In the case of a disruption in postal services, any delivery or surrender of documents or notice sent by
mail shall not be deemed to have been effectively made or received until it is actually delivered. The Issuer and the Holder may
from time to time change their address for service hereunder by notice in writing delivered in one of the foregoing manners.
Except as herein provided, any
and all of the rights conferred upon the Holder herein may be enforced by the Holder through appropriate legal proceedings. No
recourse under or upon any covenant, obligation or agreement herein contained shall be had against any shareholder, officer or
director of the Issuer, either directly or through the Issuer, it being expressly agreed and declared that the obligations under
the Options are solely corporate obligations of the Issuer and no personal liability whatsoever shall attach to or be incurred
by the shareholders, officers or directors of the Issuer in respect thereof. This Option Certificate shall be binding upon the
Issuer and its successors.
This Option Certificate shall
be governed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The parties
hereby attorn to the jurisdiction of the courts of the Province of British Columbia in the event of any dispute hereunder. Time
shall be of the essence hereof.
IN WITNESS WHEREOF the Issuer
has caused this Option Certificate to be signed by its duly authorized director on January 2, 2013.
STELLAR BIOTECHNOLOGIES,
INC.
By: |
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Darrell Brookstein, Director |
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SCHEDULE ‘A’
SUBSCRIPTION FORM TO OPTION CERTIFICATE
(Private Placement Announced November 15,
2012)
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
The Undersigned, being the registered
holder of the attached Option Certificate of the Issuer, does hereby irrevocably exercise________________________of the Options evidenced thereby in accordance
with the terms thereof, and accordingly hereby irrevocably subscribes for the Units (as described therein) to be received thereon
and irrevocably surrenders the Option Certificate to the Issuer for such purpose. This subscription is accompanied by a certified
cheque, bank draft or wire transfer payable to the Issuer for the whole amount of the purchase price of the Units.
In connection with this subscription:
(check one):
1. ¨ The undersigned hereby certifies that (i) it is not a U.S.
Person (as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”),
the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation
organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or
trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this
subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate
for or on behalf of any U.S. Person or person within the United States.
2. ¨ The
undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Issuer to the
effect that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the U.S.
Securities Act and applicable state securities laws or are exempt from registration thereunder.
3. ¨ The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act)
that purchased the Warrants represented by this Warrant Certificate directly from the Issuer for its own account or the
account of another Accredited Investor, (ii) it is exercising the Warrants for its own account or the account of such other
Accredited Investor, (iii) it remains an Accredited Investor on the date of exercise of the Warrants, and (iv) if the
Warrants are being exercised on behalf of another person, such person was an Accredited Investor on the date the undersigned
purchased the Warrants from the Issuer for its account and remains an Accredited Investor on the date of exercise of the
Warrants.
Note: The common shares and warrant
certificates comprising the Units will not be registered or delivered to a U.S. address unless the undersigned has checked box
2 or box 3 above and satisfied the applicable requirements thereof. A legend will be placed on any Common Shares issued pursuant
to box 2 or box 3 above to the effect that the Common Shares may not be transferred except pursuant to an exemption from registration
under the U.S. Securities Act and all applicable state securities laws.
The undersigned hereby directs that the Units be registered
as follows:
Name(s) in full |
Address |
Number of Units |
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DATED this ______day of _____________________, 20 _____.
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Option Certificate. |
| 2. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Issuer. |
| 3. | If the Option Certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE ‘B’
WARRANT CERTIFICATE TO OPTION
CERTIFICATE
(Private Placement Announced November
15, 2012)
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY BEFORE MAY 3, 2013.
THIS WARRANT AND THE
SECURITIES DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE
EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND
SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES
LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND
"U.S. PERSON" ARE AS DEFINED BY REGULATION S UNDER THE SECURITIES ACT.
THIS WARRANT CERTIFICATE IS
VOID IF NOT EXERCISED ON OR BEFORE 5:00 P.M. (PACIFIC TIME) ON JANUARY 4, 2016.
WARRANT CERTIFICATE
(Relating to a Private Placement
Announced on November 15, 2012)
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws of
the Province of British Columbia)
WARRANT
CERTIFICATE NO. u |
|
t WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
THIS IS TO CERTIFY THAT ________________
of ___________________________________________ (hereinafter referred to as the "holder" or the "Warrantholder")
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific Time) (the "Expiry Time") on January 4, 2016
(the “Expiry Date”), one fully paid and non-assessable common share ("Common Share") in the
capital of STELLAR BIOTECHNOLOGIES, INC. (the "Company").
These Warrants may only be
exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041, or the registered
office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5.
These Warrants are issued subject
to the terms and conditions appended hereto as Schedule "A".
IN WITNESS WHEREOF, the Company
has caused this Warrant Certificate to be executed by a duly authorized director of the Company.
DATED for reference t.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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u Authorized Signatory |
(See terms and conditions attached hereto)
SCHEDULE "A"
TERMS AND CONDITIONS FOR
WARRANT
(Relating to a Private Placement
Announced on November 15, 2012)
Terms
and Conditions attached to the Warrant issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”) and dated
for reference t.
ARTICLE
1
INTERPRETATION
In these Terms and Conditions,
unless there is something in the subject matter or context inconsistent therewith:
| (a) | "Common Shares" means the common shares in the capital of the Company to be issued pursuant to the exercise
of Warrants; |
| (b) | "Company" means STELLAR BIOTECHNOLOGIES, INC. unless and until a successor
corporation shall have become such in the manner prescribed in Article 6, and thereafter "Company" shall mean such successor
corporation; |
| (c) | "Company's Auditors" means an independent firm of accountants duly appointed as auditors of the Company; |
| (d) | "Exchange" means the TSX Venture Exchange or such other stock exchange on which the Company's Common Shares
are listed and posted for trading; |
| (e) | “Exercise Date” has that meaning ascribed to that term in Section 3.2 of this Schedule “A”; |
| (f) | "Exercise Price" means the price of CDN$0.40 per share if exercised on or before January 4, 2016; |
| (g) | "Expiry Time" means 5:00 p.m. (Pacific Time) on the Expiry Date; |
| (h) | “Expiry Date” means January 4, 2016. |
| (i) | "herein", "hereby" and similar expressions refer to these Terms
and Conditions as the same may be amended or modified from time to time; and the expression "Article" and "Section"
followed by a number refer to the specified Article or Section of these Terms and Conditions; |
| (j) | "Issue Date" means the issue date of the Warrant shown on the face page of the Warrant Certificate; |
| (k) | "person" means an individual, corporation, partnership, trustee or any unincorporated organization and words
importing persons have a similar meaning; |
| (l) | “Subscription Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”; |
| (m) | "Warrant" means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and |
| (n) | "Warrant Certificate" means the certificate to which these Terms and Conditions are attached. |
| 1.2 | Interpretation Not Affected by Headings |
| (a) | The division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation thereof. |
| (b) | Words importing the singular number include the plural and vice versa and words importing the masculine gender include the
feminine and neuter genders. |
The terms hereof and of the Warrant
shall be construed in accordance with the laws of the Province of British Columbia and the laws of Canada.
ARTICLE 2
ISSUE OF WARRANT
That number of Warrants set out on the Warrant Certificate
are hereby created and authorized to be issued.
Subject to
any other written agreement between the Company and the Warrantholder, the Company may at any time and from time to time undertake
further equity or debt financing and may issue additional Common Shares, warrants or grant options or similar rights to purchase
Common Shares to any person.
| 2.3 | Issue in Substitution for Lost Warrants |
If the Warrant Certificate becomes mutilated, lost,
destroyed or stolen:
| (a) | the Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one
mutilated, lost, destroyed or stolen, in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed
or stolen Warrant Certificate; and |
| (b) | the holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case
of the loss, destruction or theft of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction,
or theft as shall be satisfactory to the Company in its discretion and the Company may also require the holder to furnish indemnity
in an amount and form satisfactory to the Company in its discretion, and shall pay the reasonable charges of the Company in connection
therewith. |
| 2.4 | Warrantholder Not a Shareholder |
The Warrant shall
not constitute the holder a shareholder of the Company, nor entitle it to any right or interest in respect thereof except as may
be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF
THE WARRANT
| 3.1 | Method of Exercise of the Warrant |
The right to
purchase Common Shares conferred by the Warrant Certificate may be exercised, prior to the Expiry Time, by the holder surrendering
this Warrant Certificate, with a duly completed and executed subscription form substantially in the form attached hereto as Schedule
"B" (the “Subscription Form”) and a certified cheque, bank draft or a money order payable to or to
the order of the Company, for the Exercise Price applicable at the time of surrender in respect of the Common Shares subscribed
for in lawful money of Canada, to the Company.
| 3.2 | Effective Date of Exercise of the Warrant |
This Warrant
Certificate together with such Exercise Form, certified cheque, bank draft or money order will be deemed to be so surrendered and
exercised only upon actual receipt thereof by the Company as set out above (the “Exercise Date”).
| 3.3 | Effect of Exercise of the Warrant |
| (a) | Upon surrender and payment as aforesaid the Common Shares so subscribed for shall be issued as
fully paid and non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such
surrender and payment; and |
| (b) | Within five business days after surrender and payment as aforesaid, the Company shall forthwith cause the issuance to the holder
of a certificate for the Common Shares purchased as aforesaid. |
| 3.4 | Subscription for Less than Entitlement |
The holder
may subscribe for and purchase a number of Common Shares less than the number which it is entitled to purchase pursuant to the
surrendered Warrant Certificate. In the event of any purchase of a number of Common Shares less than the number which can be purchased
pursuant to the Warrant Certificate, the holder shall be entitled to either:
| (a) | the return of the Warrant Certificate with a notation on the Grid attached hereto as Schedule
"C" showing the balance of the Common Shares which it is entitled to purchase pursuant to the Warrant Certificate
which were not then purchased; or |
| (b) | to receive a new Warrant Certificate with respect to the remaining balance of the Common Shares purchasable under this Warrant
Certificate. |
| 3.5 | Expiration of the Warrant |
After the
Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and of no effect.
| 3.6 | Hold Periods and Legending of Share Certificate |
If any of the Warrants are exercised
prior to May 3, 2013, the certificates representing the Common Shares to be issued pursuant to such exercise shall bear the following
legend:
“Unless
permitted under securities legislation, the holder of the securities shall not trade the securities before May 3, 2013.”
ARTICLE
4
ADJUSTMENTS
The number
of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment as follows:
| (a) | in the event the Company shall: |
| (i) | pay a dividend in Common Shares or make a distribution in Common Shares; |
| (ii) | subdivide its outstanding Common Shares; |
| (iii) | combine its outstanding Common Shares into a smaller number of Common Shares; or |
| (iv) | issue by reclassification of its Common Shares other securities of the Company (including any such
reclassification in connection with a consolidation, merger, amalgamation or other combination in which the Company is the surviving
corporation); |
the number of Common Shares (or
other securities) purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Common Shares or other securities of the Company which it would have owned
or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately
prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
| (b) | In case the Company shall issue rights, options or warrants to all or substantially all holders
of its outstanding Common Shares, without any charge to such holders, entitling them (for a period within 45 days after the record
date mentioned below) to subscribe for or purchase Common Shares at a price per share which is lower than 95% of the current market
price at the record date mentioned below than the then current market price per Common Share (as determined in accordance with
subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined
by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
additional Common Shares offered for subscription or purchase, and of which the denominator shall be the number of Common Shares
outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering
price of the total number of Common Shares so offered would purchase at the current market price per Common Share at such record
date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective immediately
after the record date for the determination of shareholders entitled to receive such rights, options or warrants. |
| (c) | In case the Company shall distribute to all or substantially all holders of its Common Shares evidences
of its indebtedness or assets (excluding cash dividends or distributions payable out of consolidated earnings or earned surplus
and dividends or distributions referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or
convertible or exchangeable securities containing the right to subscribe for or purchase Common Shares (excluding those referred
to in subsection (b) above)), then in each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant
shall be determined by multiplying the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction,
of which the numerator shall be the then current market price per Common Share (as determined in accordance with subsection (d)
below) on the date of such distribution, and of which the denominator shall be the then current market price per Common Share less
the then fair value (as determined by the board of directors of the Company, acting reasonably) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights, options or warrants, or of such convertible or exchangeable
securities applicable to one Common Share. Such adjustment shall be made whenever any such distribution is made, and shall become
effective on the date of distribution retroactive to the record date for the determination of shareholders entitled to receive
such distribution. |
In the event of the distribution
by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or securities convertible
or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable upon the exercise of each
Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company, such subsidiary or both,
as the Company shall reasonably determine, the shares or other securities to which such Warrantholder would have been entitled
if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment as provided in this
section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other securities shall
be made during the term of a Warrant or upon the exercise of a Warrant.
| (d) | For the purpose of any computation under subsections (b) and (c) of this section 4.1, the
current market price per Common Share at any date shall be the weighted average price per Common Share for twenty- five (25)
consecutive trading days, commencing not more than 45 trading days before such date on the stock exchange on which the Common
Shares are then traded; provided if the Common Shares are then traded on more than one stock exchange, then on the stock
exchange on which the largest volume of Common Shares were traded during such twenty-five (25) consecutive trading day
period. The weighted average price per Common Share shall be determined by dividing the aggregate sale price of all Common
Shares sold on such exchange or market, as the case may be, during the said twenty-five (25) consecutive trading days by the
total number of shares so sold. For purposes of this subsection (d), trading day means, with respect to a stock exchange, a
day on which such exchange is open for the transaction of business. Should the Common Shares not be listed on any stock
exchange the current market price per Common Share at any date shall be determined by the board of directors of the Company,
acting reasonably. |
| (e) | In any case in which this Article 4 shall require that any adjustment in the Exercise Price be
made effective immediately after a record date for a specified event, the Company may elect to defer until the occurrence of the
event the issuance, to the holder of any Warrant exercised after that record date, of the Common Shares and other shares of the
Company, if any, issuable upon the exercise of the Warrant over and above the Common Shares and other shares of the Company; provided,
however, that the Company shall deliver to the holder an appropriate instrument evidencing the holder's right to receive such additional
shares upon the occurrence of the event requiring such adjustment. |
| (f) | No adjustment in the number of Common Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the
exercise of each Warrant; provided, however, that any adjustments which by reason of this subsection (f) are not required to be
made shall be carried forward and taken into account in any subsequent adjustment. All calculations shall be made to the nearest
one-hundredth of a share. |
| (g) | Wherever the number of Common Shares purchasable upon the exercise of each Warrant is adjusted,
as herein provided, the Exercise Price payable upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, of which the numerator shall be the number of Common Shares purchasable upon
the exercise of such Warrant immediately prior to such adjustment, and of which the denominator shall be the number of Common Shares
purchasable immediately thereafter. |
| (h) | No adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need
be made under subsections (b) and (c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants,
or convertible or exchangeable securities, or evidences of indebtedness or assets referred to in those subsections which the Warrantholder
would have been entitled to receive had the Warrants been exercised prior to the happening of such event or the record date with
respect thereto. |
| (i) | In the event that at any time, as a result of an adjustment made pursuant to subsection (a) above,
the Warrantholder shall become entitled to purchase any securities of the Company other than Common Shares, thereafter the number
of such other shares so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares
contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this
Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities. |
| (j) | Upon the expiration of any rights, options, warrants or conversion or exchange privileges, if any
thereof shall not have been exercised, the Exercise Price and the number of Common Shares purchasable upon the exercise of each
Warrant shall, upon such expiration, be readjusted and shall thereafter be such as it would have been had it been originally adjusted
(or had the original adjustment not been required, as the case may be) as if: |
| (i) | the only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights,
options, warrants or conversion or exchange rights; and |
| (ii) | such Common Shares, if any, were
issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate consideration, if
any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised; |
provided further, that no such
readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon
the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange rights.
| 4.2 | Voluntary Adjustment by the Company |
Subject to
requisite Exchange approval, the Company may, at its option, at any time during the term of the Warrants, reduce the then current
Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
Whenever the
number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of such Common Shares is adjusted,
as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage prepaid, notice of such adjustment
or adjustments.
| 4.4 | No Adjustment for Dividends |
Except as provided
in section 4.1 of this Article 4, no adjustment in respect of any dividends shall be made during the term of a Warrant or upon
the exercise of a Warrant.
| 4.5 | Preservation of Purchase Rights Upon Merger, Consolidation, etc. |
In connection
with any consolidation of the Company with, or amalgamation or merger of the Company with or into, another corporation (including,
without limitation, pursuant to a "takeover bid", "tender offer" or other acquisition of all or substantially
all of the outstanding Common Shares) or in case of any sale, transfer or lease to another corporation of all or substantially
all the property of the Company, the Company or such successor or purchasing corporation, as the case may be, shall execute with
the Warrantholder an agreement that the Warrantholder shall have the right thereafter, upon payment of the Exercise Price in effect
immediately prior to such action, to purchase upon exercise of each Warrant the kind and amount of shares and other securities
and property which it would have owned or have been entitled to receive after the happening of such consolidation, amalgamation,
merger, sale, transfer or lease had such Warrant been exercised immediately prior to such action, and the Warrantholder shall be
bound to accept such shares and other securities and property in lieu of the Common Shares to which it was previously entitled;
provided, however, that no adjustment in respect of dividends, interest or other income on or from such shares or other securities
and property shall be made during the term of a Warrant or upon the exercise of a Warrant. Any such agreement shall provide for
adjustments, which shall be as nearly equivalent as may be practicable to the adjustments provided for in this Schedule "A".
The provisions of this Article 4 shall similarly apply to successive consolidations, mergers, amalgamation, sales, transfers or
leases.
| 4.6 | Determination of Adjustments |
If any questions
shall at any time arise with respect to the Exercise Price, such question shall be conclusively determined by the Company's Auditors,
or, if they decline to so act, any other firm of Chartered Accountants, in Toronto, Ontario, that the Company may designate and
the Warrantholder, acting reasonably, may approve, and who shall have access to all appropriate records and such determination
shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
| 5.1 | Reservation of Common Shares |
The Company
will reserve and there will remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights
of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
| 6.1 | Company May Consolidate, etc. on Certain Terms |
Nothing herein
contained shall prevent any consolidation, amalgamation or merger of the Company with or into any other corporation or corporations,
or a conveyance or transfer of all or substantially all the properties and estates of the Company as an entirety to any corporation
lawfully entitled to acquire and operate same, provided, however, that the corporation formed by such consolidation, amalgamation
or merger or which acquires by conveyance or transfer all or substantially all the properties and estates of the Company as an
entirety shall, simultaneously with such amalgamation, merger, conveyance or transfer, assume the due and punctual performance
and observance of all the covenants and conditions hereof to be performed or observed by the Company.
| 6.2 | Successor Company Substituted |
In case the
Company, pursuant to section 6.1 shall be consolidated, amalgamated or merged with or into any other corporation or corporations
or shall convey or transfer all or substantially all of its properties and estates as an entirety to any other corporation, the
successor corporation formed by such consolidation or amalgamation, or into which the Company shall have been consolidated, amalgamated
or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed to and be substituted for the Company
hereunder and such changes in phraseology and form (but not in substance) may be made in the Warrant Certificate and herein as
may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
hereto.This Warrant Certificate may only be amended
by a written instrument signed by the parties
ARTICLE 8
MISCELLANEOUS
Time is of the essence of the terms of this Warrant
Certificate.
Any notice or other communication
to be given in connection with this Warrant Certificate must be in writing and given by personal delivery to the addresses listed
on the cover page of this Warrant Certificate.
The Warrants evidenced hereby (or any portion thereof)
are not transferable.
SCHEDULE "B"
SUBSCRIPTION FORM
(Private Placement Announced
November 15, 2012)
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
The undersigned Holder of the within Warrants hereby
subscribes for _____________common shares (the“Common Shares”) of STELLAR BIOTECHNOLOGIES, INC. (the
“Company”) pursuant to the within Warrants at $0.40 per Common Share on the terms specified in the said
Warrants. This subscription is accompanied by a certified cheque or bank draft payable to or to the order of the Company for the
whole amount of the purchase price of the Common Shares.
In connection with this subscription:
(check one):
1. ¨ The undersigned hereby certifies that (i) it is not a U.S.
Person (as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”),
the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation
organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or
trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this
subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate
for or on behalf of any U.S. Person or person within the United States.
2. ¨ The undersigned is delivering herewith a written opinion of U.S. counsel in form and substance satisfactory to the Company to
the effect that the Warrants and the Common Shares to be delivered upon exercise hereof have been registered under the U.S.
Securities Act and applicable state securities laws or are exempt from registration thereunder.
3. ¨ The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S.
Securities Act) that purchased the Warrants represented by this Warrant Certificate directly from the Company for its own
account or the account of another Accredited Investor, (ii) it is exercising the Warrants for its own account or the account
of such other Accredited Investor, (iii) it remains an Accredited Investor on the date of exercise of the Warrants, and (iv)
if the Warrants are being exercised on behalf of another person, such person was an Accredited Investor on the date the
undersigned purchased the Warrants from the Company for its account and remains an Accredited Investor on the date of
exercise of the Warrants.
Note: The Common Shares will not
be registered or delivered to a U.S. address unless the undersigned has checked box 2 or box 3 above and satisfied the applicable
requirements thereof. A legend will be placed on any Common Shares issued pursuant to box 2 or box 3 above to the effect that the
Common Shares may not be transferred except pursuant to an exemption from registration under the U.S. Securities Act and all applicable
state securities laws.
The undersigned hereby directs that the Common Shares
be registered as follows:
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DATED this ______day of________________, 20___.
Name of Holder: |
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Warrant Certificate. |
| 2. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Company. |
| 3. | If the Warrant certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE "C"
WARRANT EXERCISE GRID
(Private Placement Announced
November 15, 2012)
RELATING TO WARRANT CERTIFICATE NO. t
Common Shares Issued |
Common Shares Available |
Initials of Authorized Officer |
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Exhibit 4.6
STELLAR BIOTECHNOLOGIES, INC.
(the “Corporation”)
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(CDN $0.25 UNITS)
INSTRUCTIONS TO SUBSCRIBER
All Subscribers must sign and deliver to Stellar
Biotechnologies, Inc. at its Canadian office, 1868 King George Blvd., South Surrey, British Columbia, V4A 5A1 (Tel: 604-306-8854
/ Fax: 604-535-4454):
All Subscribers:
| 1. | A completed and executed copy of this Agreement; |
| 2. | A Schedule II (TSX Personal Information Acknowledgement and Consent); |
| 3. | A certified cheque, bank draft or wire transfer payable to the Corporation; Each Subscriber Must Complete |
One of the Following:
| 4. | If the Subscriber is an “Accredited Investor” resident anywhere, except the United States, a completed and signed
Schedule III (Accredited Investor Certificate – Non-United States Residents Only); |
| 5. | If the Subscriber is a resident of the United States and is an “Accredited Investor” as that term is defined in
Regulation D under the United States Securities Act of 1933, a completed and signed Schedule IV (Accredited Investor Certificate
- United States Residents Only); |
| 6. | If the Subscriber is not an “accredited investor” but is a director, executive officer, control person of the Corporation,
or of an affiliate of the Corporation or founder of the Corporation, or a spouse, parent, grandparent, brother, sister, child,
grandchild, close personal friend or close business associate of a director, executive officer, control person or founder of the
Corporation or a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the Corporation and is not
resident in Ontario or Saskatchewan, a completed and signed Schedule V (Family, Friends and Business Associates Certificate); |
| 7. | If the Subscriber is not an “accredited investor” but is a founder or control person of the Corporation or a spouse,
parent, grandparent, brother, sister, grandchild or child of an executive officer, director or founder of the Corporation and a
resident of Ontario, a completed Schedule VI (Founder, Control Person and Family Certificate – Ontario Residents Only); |
| 8. | If the Subscriber is not an “accredited investor”, but is a close personal friend or business associate of a founder,
director, executive officer or control person of the issuer, or of an affiliate of the Corporation and is a resident of Saskatchewan,
then complete and sign Schedule VII (“Risk Acknowledgement – Saskatchewan Residents Only”); |
| 9. | If the Subscriber is not an “accredited investor”, but is buying securities having an aggregate cost of at least
CDN$150,000 and is not a resident of the United States or offshore, then complete and sign Schedule VIII (“Minimum Investment
Amount Certificate – Non United States Residents or Offshore Residents”); |
| 10. | If the Subscriber is not a resident of Canada or the United States of America and did not sign this subscription agreement
in Canada or the United States of America, a completed and signed Schedule IX (Confirmation of Residence Outside of Canada and
the United States of America – Non Resident Certificate); |
Each Subscriber Who Is Not an Individual
Must Complete the Following:
| 11. | If the Subscriber is a portfolio manager or is not an individual (that is, the Subscriber is a corporation, partnership, trust
or entity other than an individual), and does not have a current accurate Form 4C - Corporate Placee Registration Form on file
with the TSX Venture Exchange, a completed and signed Schedule X. |
SUBSCRIPTION AGREEMENT
TO: STELLAR BIOTECHNOLOGIES, INC.
The undersigned (the
“Subscriber”) hereby irrevocably subscribes for and agrees to purchase from STELLAR BIOTECHNOLOGIES, INC.
(the “Corporation”) that number of units of the Corporation (the “Units”) set out below
at a price of CDN $0.25 per Unit. Each Unit consists of one common share in the capital of the Corporation (a “Share”)
and one transferable common share purchase warrant (a “Warrant”). Each Warrant shall entitle the holder
thereof to acquire one common share in the capital of the Corporation (a “Warrant Share”) at a price of CDN
$0.40 per Warrant Share until 5:00 p.m. (Vancouver time) on the date which is three years following the Closing Date (as defined
herein). The Subscriber agrees to be bound by the terms and conditions set forth in the attached “General Provisions”
including without limitation the representations, warranties and covenants set forth in the applicable schedules attached thereto.
The Subscriber further agrees, without limitation, that the Corporation may rely upon the Subscriber’s representations, warranties
and covenants contained in such documents.
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other than
signatures), as applicable, in the space provided below
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(Name of Subscriber) |
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Account Reference (if applicable): |
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By: |
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Authorized Signature |
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(Official Capacity or Title – if the Subscriber is not an individual) |
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(Name of individual whose signature appears above if different than the name of the subscriber printed above.) |
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(Subscriber’s Address, including Municipality and Province) |
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(Telephone Number) |
(Email Address) |
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Number of Units |
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x CDN $0.25 |
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= |
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Aggregate Subscription Price: ______________________ |
(the “Subscription Amount”) |
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Please
complete if
purchasing as agent or trustee for a principal
(beneficial purchaser) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully
managed by it. |
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(Name of Disclosed Principal) |
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(Address of Disclosed Principal) |
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(Account Reference, if applicable) |
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Share Certificate Registration Information: (indicate exactly how you want to be registered on the share and warrant certificate) |
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(Name) |
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(Address, including Postal Code) |
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Delivery Instructions as set forth below: |
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(Name) |
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(Account Reference, if applicable) |
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(Address) |
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(Contact Name) |
(Telephone Number) |
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Number and kind of securities of the Corporation held, directly or indirectly, if any: |
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1. |
State whether Subscriber is an Insider of the Corporation: |
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Yes ¨ No ¨ |
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2. |
State whether Subscriber is a member of the Pro Group: |
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Yes ¨ No ¨ |
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3. |
If applicable, the Subscriber has on file with the Exchange a current Form 4C |
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Yes ¨ No ¨ |
GENERAL PROVISIONS
1.1 In
this Subscription Agreement (including the first page (instruction page), page 2 (cover page), the General Provisions and Schedules
incorporated by reference, the following words have the following meanings unless otherwise indicated:
| (a) | “1933 Act” means the United States Securities Act of 1933, as amended; |
| (b) | “Applicable Legislation” means the Securities Legislation Applicable to the Corporation and all legislation incorporated
in the definition of this term in other parts of this Subscription Agreement, together with the regulations and rules made and
promulgated under that legislation and all administrative policy statements, blanket orders and rulings, notices and other administrative
directions issued by the Commissions; |
| (c) | “Closing” means the completion of the sale and purchase of the Purchased Securities; |
| (d) | “Closing Date” has the meaning assigned in the Term Sheet; |
| (e) | “Commissions” means the Commissions with Jurisdiction over the Corporation and the securities commissions incorporated
in the definition of this term in other parts of this Subscription Agreement; |
| (f) | “Exchange” has the meaning assigned in the Term Sheet; |
| (g) | “Final Closing” means the last closing under the Private Placement; |
| (h) | “General Provisions” means those portions of this Subscription Agreement headed “General Provisions”; |
| (i) | “Private Placement” means the offering of the Purchased Securities in the General Provisions of this Subscription
Agreement; |
| (j) | “Public Record” means those documents filed in the website www.SEDAR.com; |
| (k) | “Purchased Securities” has the meaning assigned in the Term Sheet; |
| (l) | “Regulation S” means Regulation S promulgated under the 1933 Act; |
| (m) | “Regulatory Authorities” means the Commissions and the Exchange; |
| (n) | “Securities” has the meaning assigned in the Term Sheet; |
| (o) | “Subscription Agreement” means the instruction page, page 3 (cover page), the Term Sheet, the General Provisions
and other Schedules incorporated by reference; and |
| (p) | “Terms” means those portions of this Subscription Agreement headed “General Provisions” and “Term
Sheet”. |
1.2 In
this Subscription Agreement, the following terms have the meanings defined in Regulation S: “Directed Selling Efforts”,
“Foreign Corporation”, “Substantial U.S. Market Interest”, “U.S. Person” and “United
States”.
1.3 In
this Subscription Agreement, unless otherwise specified, currencies are indicated in Canadian dollars.
1.4 In
this Subscription Agreement, other words and phrases that are capitalized have the meaning assigned in this Subscription Agreement.
| 2. | REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER |
| 2.1 | Acknowledgements concerning offering The Subscriber acknowledges that: |
| (a) | no securities commission or similar regulatory authority has reviewed or passed on the merits of
the Securities; |
| (b) | there is no government or other insurance covering the Securities; |
| (c) | there are risks associated with the purchase of the Securities; |
| (d) | there are restrictions on the Subscriber’s ability to resell the Securities and it is the
responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Securities; |
| (e) | the Corporation has advised the Subscriber that the Corporation is relying on an exemption from
the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities
under the Applicable Legislation and, as a consequence of acquiring securities pursuant to this exemption, certain protections,
rights and remedies provided by the Applicable Legislation, including statutory rights of rescission or damages, will not be available
to the Subscriber; |
| (f) | no prospectus has been filed by the Corporation with the Commissions in connection with the issuance
of the Purchased Securities, the issuance is exempted from the prospectus and registration requirements of the Applicable Legislation
and: |
| (i) | the Subscriber is restricted from using most of the civil remedies available under the Applicable
Legislation; |
| (ii) | the Subscriber may not receive information that would otherwise be required to be provided to the
Subscriber under the Applicable Legislation; and |
| (iii) | the Corporation is relieved from certain obligations that would otherwise apply under the Applicable
Legislation; and |
| (g) | the Subscriber acknowledges that the Securities have not been registered under the 1933 Act and
may not be offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable
states of the United States or an exemption from such registration requirements is available, and that the Corporation has no obligation
or present intention of filing a registration statement under the 1933 Act in respect of the Purchased Securities or any of the
Securities. |
| 2.2 | Representations by all Subscribers |
The Subscriber represents and warrants to
the Corporation that, as at the Agreement Date and at the Closing:
| (a) | if the Subscriber is purchasing the Securities as principal for its own account, the Subscriber
is purchasing them for investment only and not for the benefit of any other person or for resale, distribution or other disposition
of the Securities; |
| (b) | to the best of the Subscriber’s knowledge, the Securities were not advertised; |
| (c) | no person has made to the Subscriber any written or oral representations: |
| (i) | that any person will resell or repurchase the Securities; |
| (ii) | that any person will refund the purchase price of the Purchased 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 a stock exchange or that application has been made to list
and post any of the Securities for trading on any stock exchange, other than the Shares and Warrant Shares on the Exchange; |
| (d) | this subscription has not been solicited in any other manner contrary to the Applicable Legislation
or the 1933 Act; |
| (e) | the Subscriber (or others for whom it is contracting hereunder) has been advised to consult its
own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or others for whom it
is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation; |
| (f) | the Subscriber has no knowledge of a “material fact” or “material change”
(as those terms are defined in the Applicable Legislation) in the affairs of the Corporation that has not been generally disclosed
to the public, except knowledge of this particular transaction; |
| (g) | the offer made by this subscription is irrevocable (subject to the Subscriber’s right to
withdraw the subscription and to terminate the obligations as set out in this Subscription Agreement) and requires acceptance by
the Corporation and approval of the Exchange; |
| (h) | the Subscriber has the legal capacity and competence to enter into and execute this Subscription
Agreement and to take all actions required pursuant to this Subscription Agreement and, if the Subscriber is a corporation, it
is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by
its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Subscriber; |
| (i) | the Subscriber is not a “control person” of the Corporation as defined in the Applicable
Legislation, will not become a “control person” by virtue of this purchase of any of the Securities, and does not intend
to act in concert with any other person to form a control group of the Corporation; |
| (j) | unless the Subscriber has completed and signed Schedule “IV”, the offer was not made
to the Subscriber when the Subscriber was in the United States and, at the time the Subscriber’s buy order was made to the
Corporation, the Subscriber was outside the United States; |
| (k) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
a U.S. Person; |
| (l) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
and will not be purchasing Purchased Securities for the account or benefit of any U.S. Person; |
| (m) | the entering into of this Subscription Agreement and the transactions contemplated hereby will
not result in the violation of any of the terms and provisions of any law applicable to, or the 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; |
| (n) | this Subscription Agreement has been duly executed and delivered by the Subscriber and constitutes
a legal, valid and binding agreement of the Subscriber enforceable against the Subscriber; |
| (o) | the Subscriber has been independently advised as to the applicable hold period imposed in respect
of the Securities by securities legislation in the jurisdiction in which the Subscriber resides and confirms that no representation
has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of
the Securities and of the fact that the Subscriber may not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policies; |
| (p) | the Subscriber is capable of assessing the proposed investment as a result of the Subscriber’s
financial and business experience or as a result of advice received from a registered person other than the Corporation or any
affiliates of the Corporation; |
| (q) | if required by applicable securities legislation, policy or order or by any securities commission,
stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in
filing, such reports, undertakings and other documents with respect to the issue of the Securities as may be required; |
| (r) | it has relied solely upon publicly available information relating to the Issuer and not upon any
verbal or written representation as to fact or otherwise made by or behalf of the Corporation or the Corporation; and |
| (s) | the funds representing the funds representing the aggregate purchase price which will be advanced
by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and the Subscriber acknowledges that the
Corporation may in future be required by law to disclose the Subscriber’s name and other information relating to this Subscription
Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its
knowledge, none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to
any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii)
are being tendered on behalf of a person or entity who has not been identified to the Subscriber. The Subscriber shall promptly
notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation
with appropriate information in connection therewith. |
| 2.3 | Representations by residents of the United States: |
The Subscriber represents and warrants to
the Corporation that, as at the Agreement Date and at the Closing:
| (a) | the Subscriber is resident of the United States of America, or is otherwise subject to the securities
laws thereof; |
| (b) | understands the Securities have not and will not be registered under the 1933 Act or the securities
laws of any state of the United States of America in which the Subscriber is resident and the sale contemplated hereby is being
made in reliance on private placement exemptions to the Subscriber pursuant to Rule 506 of the 1933 Act; |
| (c) | the Subscriber, is an Accredited Investor as set out in the completed Schedule IV - U.S. Accredited
Investor Certificate, delivered with this Agreement; and |
| (d) | has made the representations, warranties and covenants (which representations, warranties and covenants
shall survive the Closing) to the Corporation (and acknowledges that the Corporation is relying thereon). |
| 2.4 | Representations by residents outside of Canada and the United States: |
The Subscriber represents
and warrants to the Corporation that, as of the Agreement Date and at the Closing:
| (a) | is knowledgeable of, or has been independently advised as to the applicable securities laws and
the applicable rules of any securities regulatory authorities having application in the jurisdiction in which the Subscriber is
resident (the “International Jurisdiction”) which would apply to the acquisition of the Subscriber’s Units, if
any; |
| (b) | is purchasing the Units pursuant to exemptions from the prospectus and registration requirements
under the applicable securities laws of the International Jurisdiction or, if such is not applicable, the Subscriber is permitted
to purchase the Units under the applicable securities laws of the International Jurisdiction without the need to rely on any exemption; |
| (c) | the applicable securities laws of the International Jurisdiction do not require the Corporation
to make any filings or seek any approvals of any nature whosoever from any regulatory authority of any kind whatsoever in the International
Jurisdiction in connection with the issue and sale or resale of the Units; and |
| (d) | is complying with the requirements of all applicable securities legislation in the jurisdiction
of its residence and will provide such evidence of compliance with all such matters as the Corporation may request. |
| 2.5 | Reliance, indemnity and notification of changes |
The representations and
warranties in this Subscription Agreement (including the Term Sheet, the General Provisions and the other schedules and appendices
incorporated by reference) are made by the Subscriber with the intent that they be relied upon by the Corporation in determining
its suitability as a Subscriber of Purchased Securities, and the Subscriber hereby agrees to indemnify the Corporation against
all losses, claims, costs, expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon.
The Subscriber undertakes to notify the Corporation immediately of any change in any representation, warranty or other information
relating to the Subscriber set forth in this Subscription Agreement (including the Term Sheet, the General Provisions and the other
schedules and appendices incorporated by reference) which takes place prior to the Closing.
| 2.6 | Survival of representations and warranties |
The representations and
warranties contained in this Section will survive the Closing.
| 3. | REPRESENTATIONS AND WARRANTIES OF THE CORPORATION |
3.1 The
Corporation represents and warrants to the Subscriber that, as of the date of this Agreement and at the Closing:
| (a) | the Corporation and its subsidiaries, if any, are valid and subsisting corporations duly incorporated,
continued or amalgamated and in good standing under the laws of the jurisdictions in which they are incorporated, continued or
amalgamated with respect to all acts necessary to maintain their corporate existence; |
| (b) | the Corporation is the beneficial owner of the properties, business and assets or the interests
in the properties, business and assets referred to in the Public Record, except as disclosed in the Public Record all agreements
by which the Corporation holds an interest in a property, business or asset are in good standing according to their terms, and
there has not been any breach of the applicable laws of the jurisdictions in which such properties, business and assets are situated
which would have a material adverse effect on such properties, business and assets; |
| (c) | the Financial Statements accurately reflect the financial position of the Corporation as at the
date thereof and have been properly prepared in accordance with Canadian Generally Accepted Accounting Principles (GAAP) (up to
and including audited financial statements for the year ended August 31, 2011) and International Financial Reports Standards (interim
financial statements subsequent to August 31, 2011); |
| (d) | no adverse material changes in the financial position of the Corporation have taken place since
the date of the latest balance sheet contained in the Financial Statements, except as has been publicly disclosed; |
| (e) | except for as provided in the Public Record, the Corporation and its subsidiaries are not currently
a party to any actions, suits or proceedings which could materially affect the Corporation’s business or financial condition; |
| (f) | except as disclosed in the Public Record and for options granted in the ordinary course under the
Corporation’s stock option plan, there are no outstanding options, warrants or other securities exercisable to purchase or
convertible or exchangeable into common shares of the Corporation; |
| (g) | the Corporation has complied and will comply with all applicable corporate and securities laws
and regulations in connection with the offer, sale and issuance of the Units; |
| (h) | the issuance and sale of the Units by the Corporation does not and will not conflict with and does
not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement
or instrument to which the Corporation is a party; |
| (i) | this Agreement has been duly authorized by all necessary corporate action on the part of the Corporation
and, subject to acceptance by the Corporation, constitutes a valid obligation of the Corporation legally binding upon it and enforceable
in accordance with its terms; |
| (j) | the issuance of the Securities, at the time of their issue, will have been approved by all requisite
corporate action and any shares comprising part of the Securities, upon issue and delivery, will be validly issued as fully paid
and non-assessable; |
| (k) | the Corporation is a reporting issuer under the BC Act and Alberta Act, its common shares are listed
for trading on the Exchange; and |
| (l) | all consents, approvals, authorizations, orders or agreements of any stock exchanges, securities
commissions or similar authorities in Canada, governmental agencies or regulators, courts or any other persons which may be required
for the issuance of the Securities and the delivery of certificates representing the Securities to the Subscriber, shall be obtained
and in effect prior to or on the date of delivery of such certificates. |
| 3.2 | Survival of representations and warranties |
The representations and warranties contained
in this Section will survive the Closing.
4.1 The
Subscriber acknowledges that, although Purchased Securities may be issued to other purchasers under the private placement concurrently
with the Closing, there may be other sales of Purchased Securities under the private placement, some or all of which may close
before or after the Closing.
4.2 On
or before the end of the fifth business day before the Closing Date, the Subscriber will deliver to the Corporation this Subscription
Agreement and all applicable schedules and required forms, duly executed, and payment in full for the total purchase price of the
Purchased Securities to be purchased by the Subscriber by certified cheque, bank draft or wire transfer in Canadian dollars payable
to “STELLAR BIOTECHNOLOGIES, INC.”.
4.3 At
Closing or as soon as reasonably possible thereafter, the Corporation will deliver to the Subscriber the certificates representing
the Purchased Securities purchased by the Subscriber registered in the name of the Subscriber or its nominee, or as directed by
the Subscriber.
5.1 The
Subscriber agrees to sell, assign or transfer the Securities only in accordance with the requirements of applicable securities
laws and any legends placed on the Securities as contemplated by this Subscription Agreement.
5.2 The
Subscriber hereby authorizes the Corporation to correct any minor errors in, or complete any minor information missing from any
part of this Subscription Agreement and any other schedules, forms, certificates or documents executed by the Subscriber and delivered
to the Corporation in connection with the Private Placement.
5.3 The
Corporation may rely on delivery by fax machine of an executed copy of this subscription, and acceptance by the Corporation of
such faxed copy will be equally effective to create a valid and binding agreement between the Subscriber and the Corporation in
accordance with the terms of this Subscription Agreement.
5.4 Without
limitation, this subscription and the transactions contemplated by this Subscription Agreement are conditional upon and subject
to the Corporation’s having obtained such regulatory approval of this subscription and the transactions contemplated by this
Subscription Agreement as the Corporation considers necessary.
5.5 This
Subscription Agreement is not assignable or transferable by the parties hereto without the express written consent of the other
party to this Subscription Agreement.
5.6 Time
is of the essence of this Subscription Agreement and will be calculated in accordance with the provisions of the Interpretation
Act (British Columbia).
5.7 Except
as expressly provided in this Subscription Agreement and in the agreements, instruments and other documents contemplated or provided
for in this Subscription Agreement, this Subscription Agreement contains the entire agreement between the parties with respect
to the Securities and there are no other terms, conditions, representations or warranties whether expressed, implied, oral or written,
by statute, by common law, by the Corporation, or by anyone else.
5.8 The
parties to this Subscription Agreement may amend this Subscription Agreement only in writing.
5.9 This
Subscription Agreement enures to the benefit of and is binding upon the parties to this Subscription Agreement and their successors
and permitted assigns.
5.10 A
party to this Subscription Agreement will give all notices to or other written communications with the other party to this Subscription
Agreement concerning this Subscription Agreement by hand or by registered mail addressed to the address given on page 2.
5.11 This
Subscription Agreement is to be read with all changes in gender or number as required by the context.
5.12 This
Subscription Agreement will be governed by and construed in accordance with the internal laws of British Columbia (without reference
to its rules governing the choice or conflict of laws), and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction
of the courts of British Columbia with respect to any dispute related to this Subscription Agreement.
The Corporation hereby
accepts the subscription for Units as set forth on the face page of this Subscription Agreement on the terms and conditions contained
in the Subscription Agreement (including all applicable schedules) this ____________________ day of ___________________________,
2012.
|
STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Authorized Signatory |
SCHEDULE “I”
TERM SHEET
STELLAR BIOTECHNOLOGIES, INC.
(Capitalized terms have the meanings assigned
in the Subscription Agreement.)
THE CORPORATION |
|
Stellar Biotechnologies, Inc. |
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MINIMNUM/MAXIMUM OFFERING |
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There is no Minimum Offering. The Maximum Offering consists of 4,000,000 Units. |
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PURCHASED SECURITIES |
|
The “Purchased
Securities” are Units. Each Unit consists of one previously unissued common share, as presently constituted (a
“Share”) and one transferable share purchase warrant (a “Warrant”) of the Corporation. Each Warrant
will entitle the holder, on exercise, to purchase one additional common share of the Corporation (a “Warrant
Share”), at a price of CDN $0.40 per Warrant Share until the close of business on the day which is three years from the
date of the issue of the Warrants. |
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TOTAL AMOUNT |
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CDN $1,000,000 |
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PRICE |
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CDN $0.25 per Unit. |
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WARRANTS |
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The Warrants will be transferable, subject to compliance with applicable securities legislation. |
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The certificates representing the Warrants will, among other things, include provisions for the appropriate adjustment in the class, number and price of the Warrant Shares issued upon exercise of the Warrants upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the Corporation’s common shares, the payment of stock dividends and the amalgamation of the Corporation. |
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The issue of the Warrants will not restrict or prevent the Corporation from obtaining any other financing, or from issuing additional securities or rights, during the period within which the Warrants may be exercised. |
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SELLING JURISDICTIONS |
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The Units may be sold to eligible purchasers in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, the Yukon, Nunavut, Northwest Territories, the Maritimes, the United States and in certain “offshore” jurisdictions outside Canada and the United States, subject to receipt of all necessary regulatory approvals and compliance with applicable laws (the “Selling Jurisdictions”). |
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FINDER’S FEE |
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The Corporation may pay a finder’s fee to certain arm’s length parties at up to the maximum rates allowed by the Exchange. Such amounts will be paid either in cash or, at the discretion of the Issuer, the issuance of securities of the Corporation. |
EXEMPTIONS |
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The offering will be made in accordance with the following exemptions from the prospectus requirements: |
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(a) |
the “accredited investor” exemption (section 2.3 of National Instrument 45-106); |
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(b) |
the United States “accredited investor exemption” (section 2.3 of National Instrument 45-106 and Rule 506 of Regulation D); |
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(c) |
the British Columbia, Alberta, Manitoba, Quebec, Yukon, Nunavut, Northwest Territories and Maritime “family, friends and business associates” exemption (section 2.5 of National Instrument 45-106); |
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(d) |
the Saskatchewan “family, friends and business associates” exemption (section 2.6 of National Instrument 45-106); |
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(e) |
the Ontario “founder, control person and family exemption” (section 2.7 of National Instrument 45-106); |
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(f) |
the “minimum amount investment” exemption (section 2.10 of National Instrument 45-106); and |
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(g) |
the “offshore exemption” (BC Instrument 72-503). |
RESALE RESTRICTIONS AND LEGENDS |
|
The Purchased Securities
will be subject to a four month and one day hold period that commences on Closing. |
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The Subscriber acknowledges that the
certificates representing the Purchased Securities may bear the following legends: |
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“UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT THE DATE THAT IS FOUR MONTHS AND A DAY
AFTER THE DISTRIBUTION DATE.]” |
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“WITHOUT PRIOR WRITTEN APPROVAL
OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE
EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [DATE THAT IS FOUR MONTHS AND A DAY
AFTER THE CLOSING].” |
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If the Subscriber is a resident of
the United States, then the Subscriber acknowledges that the certificates representing the Purchased Securities will bear
the additional following legend or such other legend as legal counsel for the Corporation may advise: |
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“THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE
THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY
APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE
OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD
DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.” |
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The Corporation agrees that the Purchased Securities will bear no legends other than those set out here. Subscribers are advised to consult with their own legal counsel or advisors to determine the resale restrictions that may be applicable to them. |
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CLOSING DATE |
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Payment for the Units is required as soon as possible, and the delivery of the Units is scheduled to occur following receipt of the required approval of the Exchange or on such date as may be designated by the Corporation (the “Closing Date”). Subsequent closings may take place from time to time at later dates as may be determined by the Corporation. |
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ADDITIONAL DEFINITIONS |
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In this Subscription Agreement, the following words have the following meanings unless otherwise indicated: |
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(a) |
“Purchased Securities” means the Units purchased under this Subscription Agreement; |
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(b) |
“Securities” means the Shares, the Warrants and the Warrant Shares; |
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(c) |
“Warrants” includes the certificates representing the Warrants. |
REGULATORY APPROVAL: |
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The completion of the Offering is subject to regulatory approval by the TSX Venture Exchange. |
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JURISDICTION OF ORGANIZATION |
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The Corporation is a validly existing company under the laws of the British Columbia Business Corporations Act. |
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STOCK EXCHANGE LISTING |
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Shares of the Corporation are listed on the TSX Venture Exchange. (the “Exchange”). |
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SECURITIES LEGISLATION APPLICABLE TO THE CORPORATION |
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The “Securities Legislation Applicable to the Corporation” is the Securities Act (British Columbia) and the Securities Act (Alberta). |
SCHEDULE II
PERSONAL INFORMATION ACKNOWLEDGEMENT
AND CONSENT
IN THE MATTER OF PERSONAL INFORMATION
PROVIDED TO
STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
TO BE COMPLETED BY ALL SUBSCRIBERS
“Personal Information” means any information about
the undersigned and includes information obtained from the undersigned through written or verbal means between the undersigned
and the Corporation, its agents or representatives.
ACKNOWLEDGEMENT AND CONSENT:
I, the undersigned, have read and understand the TSX Personal
Information Acknowledgement set out below.
I hereby consent to:
| (1) | the disclosure of my Personal Information to the TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
as requested from the Exchange; |
| (2) | the collection, use and disclosure of my Personal Information by the Exchange for the purposes
described below under “TSX Personal Information Acknowledgement” or as otherwise identified by the Exchange, from time
to time; |
| (3) | the disclosure of my Personal Information to the British Columbia Securities Commission and to
any other applicable regulatory authority (collectively referred to as the “Regulatory Authorities”) as requested from
the Regulatory Authorities; and |
| (4) | the collection, use and disclosure of my Personal Information by the Regulatory Authorities for
such purposes as are identified by the Regulatory Authorities from time to time. |
DATED the ________________day of _____________________________,
2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
TSX PERSONAL INFORMATION ACKNOWLEDGEMENT
TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
collect Personal Information in certain Forms that are submitted by the individual and/or by an Issuer
or Applicant and use it for the following purposes:
| • | to conduct background checks, |
| • | to verify the Personal Information that has been provided about each individual, |
| • | to consider the suitability of the individual to act as an officer, director, insider, promoter,
investor relations provider or, as applicable, an employee or consultant, of the Issuer or Applicant, |
| • | to consider the eligibility of the Issuer or Applicant to list on the Exchange, |
| • | to provide disclosure to market participants as to the security holdings of directors, officers,
other insiders and promoters of the Issuer, or its associates or affiliates, and includes information as to such individual’s
involvement with any other reporting issuers, issuers subject to a cease trade order or bankruptcy, as well as information respecting
penalties, sanctions or personal bankruptcies, to which such individual has been subject, as well as any conflicts of interest
that the individual may have with the Issuer, |
| • | to detect and prevent fraud, |
| • | to conduct enforcement proceedings, and |
| • | to perform other investigations as required by and to ensure compliance
with all applicable rules, policies, rulings and regulations of the Exchange, securities legislation
and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada. |
As part of
this process, the Exchange also collects additional Personal Information from other sources, including but not limited to, securities
regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services
providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above
can be accomplished.
The Personal Information the Exchange collects
may* also be disclosed:
| (a) | to the agencies and organizations in the preceding paragraph, or as otherwise permitted or required by law, and they may use
it in their own investigations for the purposes described above; and |
| (b) | on the Exchange’s
website or through printed materials published by or pursuant to the directions of the Exchange. |
The Exchange may from time
to time use third parties to process information and/or provide other administrative services. In this regard, the Exchange may
share the information with such third party service providers.
SCHEDULE III
ACCREDITED INVESTOR CERTIFICATE
(Non-United States Residents Only)
(Capitalized terms not
specifically defined in this Schedule have the meaning ascribed to them in the Subscription Agreement of which this Schedule forms
part.)
In connection with the
execution of the Subscription Agreement to which this Schedule is attached, the undersigned (the “Subscriber”)
represents and warrants to the Corporation that the Subscriber satisfies one or more of the categories indicated below (please
place an “X” on the appropriate lines):
(Please initial or place an X or a check
mark next to as applicable)
|
___(a) |
a Canadian financial institution, or a Schedule III bank, |
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___(b) |
the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada), |
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___(c) |
a subsidiary of any person referred to in paragraphs (a) or (b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary, |
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___(d) |
a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, other than a person registered solely as a limited market dealer registered under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador), |
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___(e) |
an individual registered or formerly registered under the securities legislation of a jurisdiction of
Canada as a representative of a person referred to in paragraph (d),
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___(f) |
the Government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada, |
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___(g) |
a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité
de gestion de la taxe scolaire de l’île de Montréal or an intermunicipal management board in Québec,
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___(h) |
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government, |
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___(i) |
a pension fund that is regulated by the Office of the Superintendent of Financial Institutions (Canada),
a pension commission or similar regulatory authority of a jurisdiction of Canada,
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___(j) |
an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000, |
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___(k) |
an individual whose net income before taxes exceeded $200,000 in each of the two most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year, |
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___(l) |
an individual who, either alone or with a spouse, has net assets of at least $5,000,000, |
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___(m) |
a person, other than an individual or investment fund, that has net assets of at least $5,000,000, as shown on its most recently prepared financial statements, |
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___(n) |
an investment fund that distributes its securities only to |
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(i) |
a person that is or was an accredited investor at the time of distribution, |
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(ii) |
a person that acquires or acquired securities in the circumstances referred to in sections 2.10 [Minimum amount investment], and 2.19 [Additional investment in investment funds], or |
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(iii) |
a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 [Investment fund reinvestment], |
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___(o) |
an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory authority, has issued a receipt, |
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___(p) |
a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be, |
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___(q) |
a person acting on behalf of a fully managed account managed by that person, if that person |
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(i) |
is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, and |
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(ii) |
in Ontario, is purchasing a security that is not a security of an investment fund; |
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___(r) |
a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded, |
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___(s) |
an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) to (d) or paragraph (i) in form and function, |
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___(t) |
a person or company in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors, |
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___(u) |
an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser, or |
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___(v) |
a person that is recognized or designated by the securities regulatory authority or, except in Ontario and Québec, the regulator as an accredited investor. |
For the purposes of the foregoing terms in
bold, the following definitions apply:
“bank” means a bank named in Schedule I or
II of the Bank Act (Canada).
“Canadian financial institution” means
| (a) | an association governed by the Cooperative Credit Associations Act (Canada) or a central
cooperative credit society for which an order has been made under section 473(1) of that Act, or |
| (b) | a bank, loan corporation, trust company, trust corporation, insurance company, treasury
branch, credit union, caisse populaire, financial services cooperative, or league that, in each case, is authorized by an enactment
of Canada or a jurisdiction of Canada to carry on business in Canada or a jurisdiction of Canada. |
“control person” means
any person that holds or is one of a combination of persons, acting in concert by virtue of an agreement, arrangement,
commitment or understanding, that holds
| (a) | a sufficient number of any of the securities of a company so as to affect materially the control
of the company, or |
| (b) | more than 20% of the outstanding voting securities of a company except where there is evidence
showing that the holding of those securities does not affect materially the control of the company. |
“director” means
| (a) | a member of the board of directors of a company or an individual who performs similar functions
for a company, and |
| (b) | with respect to a person that is not a company, an individual who performs functions
similar to those of a director of a company. |
“eligibility adviser” means
| (a) | a person that is registered as an investment dealer and authorized to give advice with respect
to the type of security being distributed, and |
| (b) | in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with
a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association
of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided
that the lawyer or public accountant must not |
| (i) | have a professional, business or personal relationship with the Corporation, or any of its directors, executive officers,
founders, or control persons, and |
| (ii) | have acted for or been retained personally or otherwise as an employee, executive officer, director, associate
or partner of a person that has acted for or been retained by the Corporation or any of its directors, executive
officers, founders or control persons within the previous 12 months. |
“eligible investor” means
| (i) | net assets, alone or with a spouse, in the case of an individual, exceed $400 000, |
| (ii) | net income before taxes exceeded $75,000 in each of the 2 most recent calendar years and who reasonably expects to exceed that
income level in the current calendar year, or |
| (iii) | net income before taxes, alone or with a spouse, in the
case of an individual, exceeded $125 000 in each of the 2 most recent calendar years and who reasonably expects to exceed that
income level in the current calendar year, |
| (b) | a person of which a majority of the voting securities are beneficially owned by eligible investors or a majority of the directors
are eligible investors, |
| (c) | a general partnership of which all of the partners are eligible investors, |
| (d) | a limited partnership of which the majority of the general partners are eligible investors, |
| (e) | a trust or estate in which all of the beneficiaries or a majority of the trustees or executors are eligible investors, |
| (f) | an accredited investor, |
| (g) | a person described in section 2.5 [Family, friends and business associates] of National Instrument 45-106, or |
| (h) | a person that has obtained advice regarding the suitability of the investment and, if the person is resident in a jurisdiction
of Canada, that advice has been obtained from an eligibility adviser; |
“executive officer”
means, for an Corporation, an individual who is
| (a) | a chair, vice-chair or president, |
| (b) | a vice-president in charge of a principal business unit, division or function including sales, finance or production, or |
| (d) | performing a policy-making function in respect of the
Corporation; |
“financial assets” means
| (c) | a contract of insurance, deposit or an evidence of a deposit that is not a security for the purposes of securities legislation. |
“founder” means,
in respect of a Corporation, a person who,
| (a) | acting alone, in conjunction, or in concert with one or more persons, directly or indirectly,
takes the initiative in founding, organizing or substantially reorganizing the business of the Corporation, and |
| (b) | at the time of the trade is actively involved in the business of the Corporation; |
“fully
managed account” means an account for of a client for which a person makes the investment decisions if that person
has full discretion to trade in securities for the account without requiring the client’s express consent to a transaction;
“investment fund”
has the same meaning as in National Instrument 81-106 Investment Fund Continuous Disclosure;
“marketplace” has the same meaning
as in National Instrument 21-101 Marketplace Operation;
“MD&A” has the same meaning
as in National Instrument 51-102 Continuous Disclosure Obligations;
“non-redeemable investment
fund” has the same meaning as in National Instrument 81-106 Investment Fund Continuous Disclosure;
“person” includes
| (c) | a partnership, trust, fund, and an association, syndicate, organization or other organized group of persons, whether incorporated
or not, and |
| (d) | an individual or other person in that person’s capacity as a trustee, executor, administrator or personal or other
legal representative. |
“related liabilities” means:
| (a) | liabilities incurred or assumed for the purpose of financing the acquisition or ownership of |
financial assets;
or
| (b) | liabilities that are secured by financial assets; |
“Schedule III bank” means an authorized
foreign bank named in Schedule III of the Bank Act (Canada); “spouse” means an individual who
| (a) | is married to another individual and is not living separate and apart within the meaning of the |
Divorce Act (Canada), from the other individual,
| (b) | is living with another individual in a marriage-like relationship, including a marriage-like relationship between individuals
of the same gender, or |
| (c) | in Alberta, is an individual referred to in paragraph (a) or (b), or is an adult interdependent partner within the meaning
of the Adult Interdependent Relationships Act (Alberta). |
“subsidiary” means
an issuer that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary.
For the purposes of paragraph (t)
of the definition of “accredited investor” in the second paragraph of this Schedule III, in British Columbia, an indirect
interest means an economic interest in the person referred to in that paragraph.
For the purpose of this Schedule
III, an issuer is an affiliate of another issuer if
| (a) | one of them is the subsidiary of the other, or |
| (b) | each of them is controlled by the same person. |
Except for the “Employee, Executive Officer,
Director and Consultant Exemptions”, a person (first person) is considered to control another person (second person)
if
| (a) | the first person beneficially owns or directly or indirectly exercises control or direction over securities of the second person
carrying votes which, if exercised, would entitle the first person to |
elect a majority of the directors
of the second person, unless that first person holds the voting securities only to secure an obligation,
| (b) | the second person is a partnership, other than a limited partnership, and the first person holds more than 50% of the interests
of the partnership, or |
| (c) | the second person is a limited partnership and the general partner of the limited partnership is the first person. |
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the __________day of _____________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IV
ACCREDITED INVESTOR CERTIFICATE
(United States Residents Only)
The Subscriber understands
and agrees that the Units, the Shares, the Warrants and the Warrant Shares (collectively, the “Securities”) have not
been and will not be registered under the United States Securities Act of 1933, as amended (the “1933 Act”),
or applicable state securities laws, and the Units are being offered and sold by the Corporation to the Subscriber in reliance
upon Rule 506 of Regulation D under the 1933 Act.
The undersigned represents,
warrants and covenants (which representations, warranties and covenants shall survive the Closing) to the Corporation (and acknowledges
that the Corporation is relying thereon) that:
| (a) | it is purchasing the Units either for its own account for investment purposes only or for the account
of a beneficial purchaser for which it is exercising sole investment discretion and that is purchasing the Units for its own account
for investment purposes only and, in any case, not with a view to resale or distribution and, in particular, it has no intention
to distribute either directly or indirectly any of the Securities in the United States; provided, however, that the Subscriber
may sell or otherwise dispose of any of the Securities pursuant to registration thereof pursuant to the 1933 Act and any applicable
state securities laws or under an exemption from such registration requirements; |
| (b) | it has such knowledge and experience in financial business matters as to be capable of evaluating
the merits and risks of an investment in the Securities and it is able to bear the economic risk of loss of its entire investment; |
| (c) | the Corporation has provided to it the opportunity to ask questions and receive answers concerning
the terms and conditions of the offering and it has had access to such information concerning the Corporation as it has considered
necessary or appropriate in connection with its investment decision to acquire the Securities; |
| (d) | it, and each beneficial purchaser for whom it is acting, if any, satisfies one or more of the categories
of “accredited investor” as defined in Rule 501(a) of Regulation D of the 1933 Act indicated below (the Subscriber
must initial or place an X or a check mark on the appropriate line(s) for itself and for each beneficial purchaser on behalf of
whom it is purchasing, if any): |
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Category 1. |
A bank, as defined in Section 3(a)(2) of the 1933 Act, whether acting in its individual or fiduciary capacity; or |
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Category 2. |
A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the 1933 Act, whether acting in its individual or fiduciary capacity; or |
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Category 3. |
A broker or dealer registered pursuant to Section 15 of the United States Securities Exchange Act of 1934; or |
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Category 4. |
An insurance company as defined in Section 2(13) of the 1933 Act; or |
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Category 5. |
An investment company registered under the United States Investment Company Act of 1940; or |
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Category 6. |
A business development company as defined in Section 2(a)(48) of the United States Investment Company Act of 1940; or |
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Category 7. |
A small business investment company licensed by the U.S. Small Business Administration under Section 301 (c) or (d) of the United States Small Business Investment Act of 1958; or |
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Category 8. |
A plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with total assets in excess of US $5,000,000; or |
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Category 9. |
An employee benefit plan within the meaning of the United States Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or an employee benefit plan with total assets in excess of US $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are accredited investors; or |
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Category 10. |
A private business development company as defined in Section 202(a)(22) of the United States Investment Advisers Act of 1940; or |
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Category 11. |
An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of US $5,000,000; or |
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Category 12. |
Any director or executive officer of the Corporation; or |
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Category 13. |
A natural person whose individual net worth, or joint net worth with that person’s spouse, at the date hereof exceeds US $1,000,000; or |
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Category 14. |
A natural person who had an individual income in excess of US $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of US $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or |
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Category 15. |
A trust, with total assets in excess of US $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the 1933 Act; or |
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Category 16. |
Any entity in which all of the equity owners meet the requirements of at least one of the above categories; |
| (e) | it understands that if it decides to offer, sell or otherwise transfer the Securities, it will not offer, sell or otherwise
transfer any of such securities directly or indirectly, unless: |
| (i) | the transfer is to the Corporation; |
| (ii) | the transfer is made outside the United States in a transaction meeting the requirements of Rule
904 of Regulation S under the 1933 Act and in compliance with applicable local laws and regulations; |
| (iii) | the transfer is made in compliance with the exemption from the registration requirements under
the 1933 Act provided by Rule 144 or Rule 144A thereunder, if available, and in accordance with applicable state securities laws;
or |
| (iv) | the Securities are transferred in a transaction that does not require registration under the 1933
Act or any applicable state laws and regulations governing the offer and sale of securities; |
and it has prior to such sale
furnished to the Corporation an opinion of counsel of recognized standing or other evidence of exemption, in either case reasonably
satisfactory to the Corporation;
| (f) | it understands that upon the issuance thereof, and until such time as the same is no longer required
under the applicable requirements of the 1933 Act or applicable U.S. state laws and regulations, the certificates representing
the Securities, and all securities issued in exchange therefor or in substitution thereof, will bear a legend in substantially
the following form, or such other legend, as may be advised by legal counsel for the Corporation: |
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “1933 ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY,
(B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE
STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION,
IN EITHER CASE REASONABLY SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY”
IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”
provided,
that if any of the Securities are being sold under clause (B) above, at a time when the Corporation is a “foreign Corporation”
as defined in Rule 902 under the 1933 Act, the legend set forth above may be removed by providing a declaration to the Corporation
and its transfer agent in such form as the Corporation may from time to time prescribe, together with such other evidence, including
an opinion of counsel in form satisfactory to the Corporation and its transfer agent, as the Corporation and its transfer agent
may from time to time prescribe, to the effect that the sale of such securities is being made in compliance with Rule 904 of Regulation
S under the 1933 Act;
provided
further, that if any of the Securities are being sold pursuant to Rule 144 of the 1933 Act, the legend may be removed by delivery
to the Corporation’s transfer agent of an opinion satisfactory to the Corporation to the effect that the legend is no longer
required under applicable requirements of the 1933 Act or state securities laws;
| (g) | it consents to the Corporation making a notation on its records or giving instruction to the registrar
and transfer agent of the Corporation in order to implement the restrictions on transfer set forth and described herein; |
| (h) | it understands and acknowledges that the Warrants may not be exercised in the United States or
by or on behalf of a U.S. Person unless an exemption is available from the registration requirements of the 1933 Act and the securities
laws of all applicable states and the holder has furnished an opinion of counsel of recognized standing in form and substance satisfactory
to the Corporation to such effect; provided that a Subscriber who purchased Units pursuant to the Offering will not be required
to deliver an opinion of counsel in connection with the due exercise of the Warrants that comprise part of the Units if the Subscriber
delivers to the Corporation a warrant exercise form containing representations, warranties and agreements substantially as included
in this U.S. Accredited Investor Certificate; |
| (i) | it understands and acknowledges that the Corporation has no obligation or present intention of
filing with the United States Securities and Exchange Commission or with any state securities administrator any registration statement
in respect of resales of the Securities in the United States; |
| (j) | the office or other address of the Subscriber at which the Subscriber received and accepted the
offer to purchase the Units is the address listed as the “Subscriber’s Address” on the signature page of the
Subscription Agreement; |
| (k) | it acknowledges that it has not purchased the Securities as a result of any form of general solicitation
or general advertising (as such terms are used in Regulation D under the 1933 Act), including, but not limited to, any 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; |
| (l) | it understands and agrees that there may be material tax consequences to the Subscriber of an acquisition,
holding, exercise or disposition of the Securities. The Corporation does not give any opinion or makes any representation with
respect to the tax consequences to the Subscriber under United States, state, local or foreign tax law of the Subscriber’s
acquisition, holding, exercise or disposition of such securities, and the Subscriber acknowledges that the undersigned is solely
responsible for determining the tax consequences to its investment. In particular, no determination has been made whether the Corporation
will be a “passive foreign investment company” within the meaning of Section 1297 of the United States Internal Revenue
Code; |
| (m) | it understands and acknowledges that the Corporation is not obligated to remain a “foreign
Corporation” (as such is defined in Rule 405 promulgated under the 1933 Act); |
| (n) | it understands and agrees that the financial statements of the Corporation have been prepared in
accordance with Canadian generally accepted accounting principles, which differ in some respects from United States generally accepted
accounting principles, and thus may not be comparable to financial statements of United States companies; and |
| (o) | it understands and agrees that the certificates representing the Warrants, and all certificates
issued in exchange therefor or in substitution thereof, shall bear the following legend, or such other legend, as may be advised
by legal counsel for the Corporation: |
“THIS
WARRANT AND THE SECURITIES DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY
NOT BE EXERCISED IN THE UNITED STATES OR BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT
AND SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION
OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. “UNITED STATES” AND “U.S.
PERSON” ARE AS DEFINED BY REGULATION S UNDER THE SECURITIES ACT.”
The capitalized terms not defined
in this Schedule shall have the meanings ascribed to them in the Subscription Agreement.
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the _______day of___________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE V
CONFIRMATION OF RELATIONSHIP
FAMILY, FRIENDS AND BUSINESS
ASSOCIATES CERTIFICATE
(British Columbia, Alberta,
Manitoba, Quebec, Yukon, Nunavut, Northwest Territories and Maritime Residents Only)
The Subscriber represents and
warrants to the Corporation that the Subscriber is buying the Securities as principal and that the Subscriber has read the following
definitions from National Instrument 45-106 Prospectus and Registration Exemptions and certifies that the Subscriber has
the relationship(s) to the Corporation or its directors, executive officers, control persons or founders
by virtue of the Subscriber being:
(Please initial or place an
X or a place a check mark next to one or more as applicable)
________ |
(a) |
I am a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(b) |
I am a spouse, parent, grandparent, brother, sister, child or grandchild of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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________ |
(c) |
I am a parent, grandparent, brother, sister, child or grandchild of the spouse of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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________ |
(d) |
I am a close personal friend of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(e) |
I am a close business associate of a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(f) |
I am a founder of the Corporation or a spouse, parent, grandparent, brother, sister, child, grandchild or close personal close business associate of a founder of the Corporation. |
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(g) |
I am a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of the Corporation. |
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(h) |
I am a person of which a majority of the voting securities are beneficially owned by, or a majority of the directors are, persons described in the categories (a) to (g) above. |
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(i) |
I am a trust or estate of which all of the beneficiaries or a majority of the trustees or executors are persons described in the categories (a) to (g) above. |
and if any of (b) through (i) is initialled or marked,
the name of the director, executive officer, control person or
founder is:
____________________________________________________________
(Print name of director, executive officer, control
person or founder)
For the purposes
of the foregoing terms in bold, the definitions in Schedule III and the following guidance apply:
“close business associate”
is an individual who has had sufficient prior business dealings with the director, executive officer, founder
or control person of the Corporation to be in a position to assess their capabilities and trustworthiness.
An individual
is not a close business associate solely because the individual is (a) a member of the same organization, association or religious
group, or (b) a client, customer, former client or former customer.
The relationship between the
individual and the director, executive officer, founder or control person must be direct. For example,
the exemption is not available for a close business associate of a close business associate of a director, executive
officer, founder or control person.
“close
personal friend” is an individual who known the director, executive officer, founder or control
person well enough and has known them for a sufficient period of time to be in a position to assess their capabilities and
trustworthiness. The term “close personal friend” can include a family member who is not already specifically identified
in the exemption above.
An individual
is not a close personal friend solely because the individual is a relative, a member of the same organization, association or religious
group or a current or former client or customer.
The relationship between the
individual and the director, executive officer, founder or control person must be direct. For example,
the exemption is not available for a close personal friend of a close personal friend of the director, executive officer,
founder or control person.
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the ______day of_______________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE
VI
CONFIRMATION
OF RELATIONSHIP
FOUNDER, CONTROL PERSON AND
FAMILY CERTIFICATE
(Ontario Residents Only)
The Subscriber represents and
warrants to the Corporation that the Subscriber has read the following definitions from National Instrument 45-106 Prospectus
and Registration Exemptions and certifies that the Subscriber has the relationship(s) to the Corporation or its directors,
executive officers, control persons or founders by virtue of the Subscriber being:
(initial or place an X or
place a check mark next to one or more as applicable)
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__(a) |
a founder of the Corporation; |
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__(b) |
an affiliate of a founder of the Corporation; |
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__(c) |
a spouse, parent, brother,sister, grandparent, grandchild or child of an executive officer, director or founder of the Corporation; or |
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__(d) |
a control person of the Corporation. |
and if (c) is initialled or marked, the director,
executive officer or founder is:__________________
__________________________________________
(Print name of director, executive
officer or founder)
For the purposes
of the foregoing terms in bold, the definitions in Schedule III apply.
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the ______day of___________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE VII
RISK ACKNOWLEDGEMENT
SASKATCHEWAN CLOSE PERSONAL
FRIENDS AND CLOSE BUSINESS ASSOCIATES
(Saskatchewan
Residents Only)
WARNING
I acknowledge that this is a risky investment:
| · | I am investing entirely at my own risk. |
| · | No securities regulatory authority or regulator has evaluated or endorsed the merits of these securities. |
| · | The person selling me these securities is not registered with a securities regulatory authority
or regulator and has no duty to tell me whether this investment is suitable for me. [Instruction: Delete if sold by registrant] |
| · | I will not be able to sell these securities for 4 months. |
| · | I could lose all the money I invest. |
| · | I do not have a 2-day right to cancel my purchase of these securities or the statutory rights of
action for misrepresentation I would have if I were purchasing the securities under a prospectus. I do have a 2- day right to cancel
my purchase of these securities if I receive an amended offering document. |
I am investing $______________ [total consideration] in
total; this includes any amount I am obliged to pay in future.
I am a close personal friend
or close business associate of_____________________ [state name], who is a____________ [state title - founder, director, executive officer
or control person] of Stellar Biotechnologies, Inc.
I acknowledge that I am purchasing based on my close
relationship with _______________________ [state name of founder, director, executive officer or control person] whom I know well enough and
for a sufficient period of time to be able to assess her/his capabilities and trustworthiness.
I acknowledge that this is a risky investment and
that I could lose all the money I invest.
Date |
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Signature of Subscriber |
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Print name of Subscriber |
Sign 2 copies of this document.
Keep one copy for your records.
You are buying Exempt Market Securities
They are called exempt market securities because
two parts of securities law do not apply to them. If an issuer wants to sell exempt market securities to you:
| · | the issuer does not have to give you a prospectus (a document that describes the investment in detail and gives you some legal
protections), and |
| · | the securities do not have to be sold by an investment dealer registered with a securities regulatory authority or regulator. |
There are restrictions on your
ability to resell exempt market securities. Exempt market securities are more risky than other securities.
You may not receive any written information
about the issuer or its business
If you have any questions about
the issuer or its business, ask for written clarification before you purchase the securities. You should consult your own professional
advisers before investing in the securities.
You will not receive advice [Instruction:
Delete if sold by registrant]
Unless you consult your own professional
advisers, you will not get professional advice about whether the investment is suitable for you.
For more information on the exempt
market, refer to the Saskatchewan Financial Services Commission’s website at http://www.sfsc.gov.sk.ca.
[Instruction: The Subscriber must sign 2 copies of
this form. The Subscriber and the issuer must each receive a signed copy.]
SCHEDULE VIII
MINIMUM INVESTMENT AMOUNT
CERTIFICATE
(Non United States Residents
or Offshore Residents)
The Subscriber
represents and warrants to the Corporation that:
| (a) | the Subscriber is buying the Securities as principal; |
| (b) | the Securities have an acquisition cost to the Subscriber of not less than CDN$150,000 paid in cash at the time of the distribution;
and |
| (c) | the distribution is of a security of a single issuer. |
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the______day of_____________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IX
CONFIRMATION OF RESIDENCE
OUTSIDE CANADA
AND THE UNITED STATES OF AMERICA
NON RESIDENT CERTIFICATE
The Subscriber
represents and warrants and certifies to the Corporation that the Subscriber:
| (a) | is not a resident of Canada; |
| (b) | did not sign this Subscription Agreement in Canada; |
| (c) | is not a resident of the United States of America; |
| (d) | is not U.S. Person, at that term is defined in Regulation S under the United States Securities
Act of 1933; |
| (e) | did not sign this Subscription Agreement in the United States of America; |
| (f) | has fully read this Subscription Agreement, and without restricting the foregoing, has read Section 2 of the General Provisions
to this Subscription Agreement. |
The foregoing
representations and warranties are true an accurate as of the date of this Certificate and will be true and accurate as of Closing.
If any such representations and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate
written notice of such fact to the Corporation.
The undersigned
has executed this Certificate as of the ______day of__________, 2012.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
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SCHEDULE X |
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FORM 4C
CORPORATE PLACEE REGISTRATION
FORM
This Form will remain on
file with the Exchange and must be completed if required under section 4(b) of Part II of Form 4B. The corporation, trust, portfolio
manager or other entity (the “Placee”) need only file it on one time basis, and it will be referenced for all subsequent
Private Placements in which it participates. If any of the information provided in this Form changes, the Placee must notify the
Exchange prior to participating in further placements with Exchange listed Issuers. If as a result of the Private Placement, the
Placee becomes an Insider of the Issuer, Insiders of the Placee are reminded that they must file a Personal Information Form (2A)
or, if applicable, Declarations, with the Exchange.
| (a) | Name:_______________________________________________________________________ |
| (b) | Complete Address:_____________________________________________________________ |
| (c) | Jurisdiction of Incorporation or Creation:_____________________________________________ |
| 2. | (a) Is the Placee purchasing securities as a portfolio
manager: (Yes/No)? _______________________ |
| (b) | Is the Placee carrying on business as a portfolio manager
outside of Canada: (Yes/No)?_________ |
| 3. | If the answer to 2(b) above was “Yes”, the undersigned certifies that: |
| (a) | it is purchasing securities of an Issuer on behalf of managed accounts for which it is making the
investment decision to purchase the securities and has full discretion to purchase or sell securities for such accounts without
requiring the client’s express consent to a transaction; |
| (b) | it carries on the business of managing the investment portfolios
of clients through discretionary authority granted by those clients (a “portfolio manager” business) in __________________[jurisdiction],
and it is permitted by law to carry on a portfolio manager business in that jurisdiction; |
| (c) | it was not created solely or primarily for the purpose of purchasing securities of the Issuer; |
| (d) | the total asset value of the investment portfolios it manages on behalf of clients is not less
than $20,000,000; and |
| (e) | it has no reasonable grounds to believe, that any of the directors, senior officers and other insiders
of the Issuer, and the persons that carry on investor relations activities for the Issuer has a beneficial interest in any of the
managed accounts for which it is purchasing. |
| 4. | If the answer to 2(a). above was “No”, please provide the names and addresses of Control Persons of the Placee: |
Name * |
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* If the Control Person is not an individual, provide
the name of the individual that makes the investment decisions on behalf of the Control Person.
| 5. | Acknowledgement - Personal Information and Securities Laws |
| (a) | “Personal Information” means any information about an identifiable individual, and includes information contained
in sections 1, 2 and 4, as applicable, of this Form. |
The undersigned hereby acknowledges and agrees that
it has obtained the express written consent of each individual to:
| (i) | the disclosure of Personal Information by the undersigned to the Exchange (as defined in Appendix
6B) pursuant to this Form; and |
| (ii) | the collection, use and disclosure of Personal Information by the Exchange for the purposes described
in Appendix 6B or as otherwise identified by the Exchange, from time to time. |
| (b) | The undersigned acknowledges that it is bound by the provisions of applicable Securities Law, including provisions concerning
the filing of insider reports and reports of acquisitions. |
Dated and certified (if applicable), acknowledged and
agreed, at __________________________on____________, 2012.
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(Name of Subscriber - please print) |
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(Authorized Signature) |
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(Official Capacity - please print) |
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(Please print name of individual whose signature appears above) |
THIS IS NOT A PUBLIC DOCUMENT
Exhibit 4.7
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY BEFORE JANUARY 10, 2014.
WITHOUT PRIOR APPROVAL OF THE TSX VENTURE
EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON
OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL JANUARY
10, 2014.
THIS WARRANT AND THE SECURITIES DELIVERABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED
WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE UNITED STATES FEDERAL AND STATE SECURITIES LAWS
OR WITHOUT DELIVERING AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. DELIVERY OF THIS
WARRANT MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
THIS WARRANT CERTIFICATE IS VOID IF
NOT EXERCISED ON OR BEFORE
5:00 P.M. (PACIFIC TIME) ON SEPTEMBER
9, 2016.
WARRANT CERTIFICATE
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws of
the Province of British Columbia)
WARRANT
CERTIFICATE NO. 2013- |
WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
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THIS IS TO CERTIFY
THAT [Name] of [Address] (hereinafter referred to as the “holder” or the “Warrantholder”) is entitled
to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth herein,
at any time and from time to time until 5:00 p.m. (Pacific time) (the “Expiry Time”) on September 9, 2016
(the “Expiry Date”), one fully paid and non-assessable common share (“Common Share”)
in the capital of STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada
(the “Company”).
These Warrants may
only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041, or the registered
office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5 (or such other office or
agency of the Company as it may designate by notice in writing to the Warrantholder at the address of the Warrantholder appearing
on the books of the Company).
These Warrants are issued subject to the
terms and conditions appended hereto as Schedule “A”.
IN WITNESS WHEREOF,
the Company has caused this Warrant Certificate to be executed by a duly authorized officer of the Company.
DATED for reference the 9th
day of September, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Scott Davis, Chief Financial Officer |
(See terms and conditions attached hereto)
SCHEDULE “A”
TERMS AND CONDITIONS FOR WARRANT CERTIFICATE
Terms and Conditions
attached to the Warrant Certificate issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”) and dated
for reference the 9th day of September, 2013.
ARTICLE
1
INTERPRETATION
1.1 Definitions.
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
(a) “1933
Act” means the United States Securities Act of 1933, as amended;
(b) “Common
Shares” means the common shares in the capital of the Company to be issued pursuant to the exercise of Warrants;
(c) “Company”
means STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada unless
and until a successor corporation shall have become such in the manner prescribed in Article 6, and thereafter “Company”
shall mean such successor corporation;
(d)
“Company’s Auditors” means an independent firm of accountants duly appointed as auditors of the Company;
(e)
“Dollars” or use of signs “US $” or “$” means only lawful money of the
United States and not any other currency, regardless of whether that currency uses the “$” sign to denote its currency
or may be readily converted into lawful money of the United States;
(f)
“Exchange” means the TSX Venture Exchange or such other stock exchange on which the Company’s Common Shares
are listed and posted for trading;
(g)
“Exercise Date” has that meaning ascribed to that term
in Section 3.2 of this Schedule “A”;
(h)
“Exercise Price” means the price of US $1.35 per
share if exercised on or before September 9, 2016;
(i)
“Expiry Time” means 5:00 p.m. (Pacific Time) on the Expiry Date;
(j)
“Expiry Date” means September 9, 2016.
(k)
“herein”, “hereby” and similar expressions refer to these Terms and Conditions as the same
may be amended or modified from time to time; and the expression “Article” and “Section” followed by a
number refer to the specified Article or Section of these Terms and Conditions;
(l)
“Issue Date” means the issue date of the Warrant shown on the face page of the Warrant Certificate;
(m)
“person” means an individual, corporation, partnership, trustee or any unincorporated organization and words
importing persons have a similar meaning;
(n)
“Subscription Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”;
(o)
“United States” has that meaning ascribed to it in Rule 902(1) of Regulation S;
(p)
“Warrant” means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and
(q)
“Warrant Certificate” means the certificate to which these Terms and Conditions are attached.
1.2 Interpretation
Not Affected by Headings.
(a) The
division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation thereof.
(b) Words
importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and
neuter genders.
1.3 Applicable
Law. The terms hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia
and the laws of Canada, and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Warrant.
ARTICLE 2
ISSUE OF WARRANT
2.1 Issue
of Warrants. That number of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
2.2 Additional
Warrants. Subject to any other written agreement between the Company and the Warrantholder, the Company may at any time and
from time to time undertake further equity or debt financing and may issue additional Common Shares, warrants or grant options
or similar rights to purchase Common Shares to any person.
2.3 Issue
in Substitution for Lost Warrants. If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
(a) the
Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
(b) the
holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction or theft
of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith.
2.4 Warrantholder
Not a Shareholder. The Warrant shall not constitute the holder a shareholder of the Company, nor entitle it to any right or
interest in respect thereof (including but not limited to voting rights) except as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 Method
of Exercise of the Warrant. The right to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior
to the Expiry Time, by the holder delivering to the Company (whether via facsimile or otherwise) a duly completed and executed
subscription form substantially in the form attached hereto as Schedule “B” (the “Subscription Form”)
and a certified check, bank draft, wire transfer or a money order payable to or to the order of the Company, for the Exercise Price
applicable at the time of exercise in respect of the Common Shares subscribed for in lawful money of the United States, to the
Company.
3.2 Effective
Date of Exercise of the Warrant. This Warrant Certificate together with such Subscription Form, certified check, bank draft,
wire transfer or a money order will be deemed to be exercised only upon actual receipt thereof by the Company as set out above
(the “Exercise Date”).
3.3 Effect
of Exercise of the Warrant.
(a) Upon
delivery of the Subscription Form and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and
non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such delivery and such
payment; and
(b) Within
five business days after delivery and payment as aforesaid, the Company shall forthwith cause the issuance to the holder of a certificate
for the Common Shares purchased as aforesaid.
3.4 Subscription
for Less than Entitlement. The holder may subscribe for and purchase a number of Common Shares less than the number which it
is entitled to purchase pursuant to this Warrant Certificate. Execution and delivery of a Subscription Form with respect to less
than all of the shares underlying this Warrant shall have the same effect as cancellation of the original of this Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of shares underlying this Warrant. Execution and delivery
of a Subscription Form for all of the then- remaining shares underlying this Warrant shall have the same effect as cancellation
of the original of this Warrant after delivery of the shares underlying this Warrant in accordance with the terms hereof.
3.5 Expiration
of the Warrant. After the Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and
of no effect.
3.6 Hold
Periods and Legending of Share Certificate. The certificates representing the Common Shares to be issued pursuant to the exercise
of this Warrant shall bear a legend in substantially the following forms:
(a)
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE
1933 ACT.”
(b)
“Unless permitted under
securities legislation, the holder of the securities shall not trade the securities before January 10, 2014.”
“Without prior written
approval of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this
certificate may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange
or otherwise in Canada or to or for the benefit of a Canadian resident until January 10, 2014.”
ARTICLE 4
ADJUSTMENTS
4.1 Adjustments.
The number of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) in
the event the Company shall:
(i)
pay a dividend in Common Shares or make a distribution in Common Shares;
(ii) subdivide
its outstanding Common Shares;
(iii)
combine its outstanding Common Shares into a smaller number of Common
Shares; or
(iv) issue
by reclassification of its Common Shares other securities of the Company (including any such reclassification in connection with
a consolidation, merger, amalgamation or other combination in which the Company is the surviving corporation);
the number of Common Shares (or other securities) purchasable
upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder shall be entitled to receive
the kind and number of Common Shares or other
securities of the Company which it would have owned or have been entitled to receive after the happening of any of the events described
above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto.
An adjustment made pursuant to this subsection (a) shall become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) In
case the Company shall issue rights, options or warrants to all or substantially all holders of its outstanding Common Shares,
without any charge to such holders, entitling them (for a period within 45 days after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share which is lower than 95% of the current market price at the record date mentioned
below (as determined in accordance with subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of Common Shares outstanding on the date of issuance of such rights,
options or warrants plus the number of additional Common Shares offered for subscription or purchase, and of which the denominator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the current market
price per Common Share at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In
case the Company shall distribute to all or substantially all holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings or earned surplus and dividends or distributions
referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in
each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall
be the then current market price per Common Share (as determined in accordance with subsection (d) below) on the date of such distribution,
and of which the denominator shall be the then current market price per Common Share less the then fair value (as determined by
the board of directors of the Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options or warrants, or of such convertible or exchangeable securities applicable to one Common
Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to receive such distribution.
In the event of the distribution
by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or securities convertible
or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable upon the exercise of each
Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company, such subsidiary or both,
as the Company shall reasonably determine, the shares or other securities to which such Warrantholder would have been entitled
if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment as provided in this
Section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other securities shall
be made during the term of a Warrant or upon the exercise of a Warrant.
(d)
For the purpose of any computation under subsections (b) and (c) of this
Section 4.1, the current market price per Common Share at any date shall be the weighted average price per Common Share for
twenty-five (25) consecutive trading days, commencing not more than 45 trading days before such date on the stock exchange on
which the Common Shares are then traded; provided if the Common Shares are then traded on more than one stock exchange, then
on the stock exchange on which the largest volume of Common Shares were traded during such twenty-five (25) consecutive
trading day period. The weighted average price per Common Share shall be determined by dividing the aggregate sale price of
all Common Shares sold on such exchange or market, as the case may be, during the said twenty-five (25) consecutive trading
days by the total number of shares so sold. For purposes of this subsection (d), trading day means, with respect to a stock
exchange, a day on which such exchange is open for the transaction of business. Should the Common Shares not be listed on any
stock exchange the current market price per Common Share at any date shall be determined by the board of directors of the
Company, acting reasonably.
(e) In
any case in which this Article 4 shall require that any adjustment in the Exercise Price be made effective immediately after a
record date for a specified event, the Company may elect to defer until the occurrence of the event the issuance, to the holder
of any Warrant exercised after that record date, of the Common Shares and other shares of the Company, if any, issuable upon the
exercise of the Warrant over and above the Common Shares and other shares of the Company; provided, however, that the Company shall
deliver to the holder an appropriate instrument evidencing the holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) No
adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the nearest one-hundredth of a share.
(g) Wherever
the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of Common Shares purchasable immediately thereafter.
(h) No
adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need be made under subsections (b) and
(c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants, or convertible or exchangeable securities,
or evidences of indebtedness or assets referred to in those subsections which the Warrantholder would have been entitled to receive
had the Warrants been exercised prior to the happening of such event or the record date with respect thereto.
(i)
In the event that at any time, as a result of an adjustment made pursuant to
subsection (a) above, the Warrantholder shall become entitled to purchase any securities of the Company other than Common
Shares, thereafter the number of such other shares so purchasable upon exercise of each Warrant and the Exercise Price of such
shares shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Common Shares contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2
through 4.4, inclusive, of this Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities.
(j) Upon
the expiration of any rights, options, warrants or conversion or exchange privileges, if any thereof shall not have been exercised,
the Exercise Price and the number of Common Shares purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if:
(i) the
only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights; and
(ii) such
Common Shares, if any, were issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised;
provided further, that no such readjustment
shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon the exercise
of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance, sale or grant
of such rights, options, warrants or conversion or exchange rights.
4.2 Voluntary
Adjustment by the Company. Subject to requisite Exchange approval, the Company may, at its option, at any time during the term
of the Warrants, reduce the then current Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
4.3 Notice
of Adjustment. Whenever the number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of
such Common Shares is adjusted, as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment or adjustments.
4.4 No
Adjustment for Dividends. Except as provided in Section 4.1 of this Article 4, no adjustment in respect of any dividends shall
be made during the term of a Warrant or upon the exercise of a Warrant.
4.5 Preservation
of Purchase Rights Upon Merger, Consolidation, etc. In connection with any consolidation of the Company with, or amalgamation
or merger of the Company with or into, another corporation (including, without limitation, pursuant to a “takeover bid”,
“tender offer” or other acquisition of all or substantially all of the outstanding Common Shares) or in case of any
sale, transfer or lease to another corporation of all or substantially all the property of the Company, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter, upon payment of the Exercise Price in effect immediately prior to such action, to purchase upon exercise
of each Warrant the kind and amount of shares and other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, amalgamation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action, and the Warrantholder shall be bound to accept such shares and other securities and property
in lieu of the Common Shares to which it was previously entitled; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property shall be made during the term of a Warrant or
upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Schedule “A”. The provisions of this Article 4 shall similarly
apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 Determination
of Adjustments. If any questions shall at any time arise with respect to the Exercise Price, such question shall be conclusively
determined by the Company’s Auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver,
British Columbia, that the Company may designate and the Warrantholder, acting reasonably, may approve, and who shall have access
to all appropriate records and such determination shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 Reservation
of Common Shares. The Company will reserve and there will remain unissued out of its authorized capital a sufficient number
of Common Shares to satisfy the rights of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 Company
May Consolidate, etc. on Certain Terms. Nothing herein contained shall prevent any consolidation, amalgamation or merger of
the Company with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the properties
and estates of the Company as an entirety to any corporation lawfully entitled to acquire and operate same, provided, however,
that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially
all the properties and estates of the Company as an entirety shall, simultaneously with such amalgamation, merger, conveyance or
transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed or
observed by the Company.
6.2 Successor
Company Substituted. In case the Company, pursuant to Section 6.1 shall be consolidated, amalgamated or merged with or into
any other corporation or corporations or shall convey or transfer all or substantially all of its properties and estates as an
entirety to any other corporation, the successor corporation formed by such consolidation or amalgamation, or into which the Company
shall have been consolidated, amalgamated or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed
to and be substituted for the Company hereunder and such changes in phraseology and form (but not in substance) may be made in
the Warrant Certificate and herein as may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE
7
AMENDMENTS
7.1 Amendment, etc.
This Warrant Certificate may only be amended and the obligations of the Company and the rights of the Warrantholder under this
Warrant Certificate may be amended, waived, discharged or terminated (either generally or in a particular instance, either retroactively
or prospectively and either for a specified period of time or indefinitely) by a written instrument signed by the Company and the
Warrantholder.
ARTICLE
8
MISCELLANEOUS
8.1 Time.
Time is of the essence of the terms of this Warrant Certificate.
8.2 Notice.
Any notice or other communication to be given in connection with this Warrant Certificate must be in writing and given by
(a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail (including PDF) or facsimile
during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt, to the recipient at the address below
indicated:
If to the Company:
Stellar Biotechnologies, Inc.
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
Attention: Chief Financial Officer
If to the Warrantholder:
To the address of such Holder set forth on the books
and records of the Company.
or such other address
or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party
in accordance with the provisions of this paragraph 8.2.
8.3 Disposition
of Shares and Warrant.
(a)
The Holder hereby acknowledges that: (i) this Warrant and any Common Shares
issuable upon exercise of the Warrant have not been registered (A) under the 1933 Act on the ground that the issuance of this Warrant
is exempt from registration under Section 4(a)(2) of the 1933 Act as not involving any public offering, or (B) under any applicable
state securities law because the issuance of this Warrant does not involve any public offering; and (ii) that the Company’s
reliance on the registration exemption under Section 4(a)(2) of the 1933 Act and under applicable state securities laws is predicated
in part on the representations hereby made to the Company by the Warrantholder. The Warrantholder represents and warrants
that he, she or it is acquiring this Warrant and will acquire Common Shares issuable upon exercise of the Warrant for investment
for his, her or its own account, with no present intention of dividing his, her or its participation with others or reselling or
otherwise distributing this Warrant or Common Shares issuable upon exercise of the Warrant.
(b) The
Warrantholder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer
”) all or any part of this Warrant and/or Common Shares issuable upon exercise of the Warrant unless and until he,
she or it shall have first obtained an opinion, reasonably satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Warrantholder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may
be made without registration under the 1933 Act and without registration or qualification under any United States state law.
(c) If,
at the time of issuance of Common Shares issuable upon exercise of the Warrant, no registration statement is in effect with respect
to such shares under applicable provisions of the 1933 Act and the Common Shares issuable upon exercise of the Warrant may not
be sold pursuant to Rule 144 of the 1933 Act, the Company may, at its election, require that any stock certificate evidencing Common
Shares issuable upon exercise of the Warrant shall bear the legend reading substantially as set forth in paragraph 3.6(a) above.
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Common Shares issuable upon exercise
of the Warrant, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the
shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
8.4 Transfer
of Warrants. Subject to applicable securities legislation (including, but not limited to, the 1933 Act) and the rules, policies,
notices and orders issued by applicable securities regulatory authorities, including the TSX Venture Exchange (or any other stock
exchange on which the Common Shares are listed), the Warrants evidenced hereby (or any portion thereof) may be assigned or transferred
by the holder by duly completing and executing the transfer form attached hereto as Schedule “C”. The rights and obligations
of the Company and Warrantholder shall be binding upon and enure to the benefit of their successors and permitted assigns.
8.5 Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record holder hereof from time to time. The Company may deem and treat the registered
holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the holder, and
for all other purposes, absent actual notice to the contrary.
SCHEDULE “B”
SUBSCRIPTION FORM
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
The undersigned Holder
of the within Warrants hereby subscribes for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES,
INC. (the “Company”) pursuant to the within Warrants at US $1.35 per Common Share on the terms specified
in the said Warrants. This subscription is accompanied by a certified check, bank draft, wire transfer or a money order payable
to or to the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription: (check one):
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1. ¨ |
The undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
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2. ¨ |
The undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act) that purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account, (ii) it is exercising the Warrants for its own account, and (iii) it remains an Accredited Investor on the date of exercise of the Warrants. |
Note: The Common Shares will not be registered
or delivered to a U.S. address unless the undersigned has checked box 2 above and satisfied the applicable requirements thereof.
A legend will be placed on any Common Shares issued pursuant to box 2 above to the effect that the Common Shares may not be transferred
except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state securities laws.
The undersigned hereby directs that the
Common Shares be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this day
of ,
20 .
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature of the person appearing on the face of
the Warrant Certificate. |
| 2. | If there is more than one holder of the Warrants, all holders must sign. |
| 3. | In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney,
officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by
evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of subscription are being forwarded by mail, registered
mail must be employed. |
SCHEDULE
“C”
TRANSFER
FORM
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name) (“Assignee”), of
(address),
Warrants of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) registered in the name of the undersigned on
the records of the Company represented by the within warrant certificate and irrevocably appoints
the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.
The undersigned hereby
certifies that, by assignment hereof, the Warrant and the shares of stock to be issued upon exercise of the Warrant are being acquired
for investment and that the Assignee will not offer, sell or otherwise dispose of the Warrant or any shares of stock to be issued
upon exercise thereof except under circumstances which will not result in a violation of the United States Securities Act of 1933,
as amended, or any United States state securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant,
the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of
stock so purchased are being acquired for investment and not with a view toward distribution or resale.
DATED
this day
of ,
20 .
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(Witness) |
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(Signature of Registered Warrant Holder) |
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(Print name of Registered Warrant Holder) |
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Signature of transferor guaranteed by: |
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* Authorized Signature Number |
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NOTE: The signature of the Holder to this
assignment must correspond exactly with the name of the Holder as set forth on the face of this Warrant certificate in every particular,
without alteration or enlargement or any change whatsoever and the signature must be guaranteed by a Canadian chartered bank or
by a Canadian trust company or by a medallion signature guarantee from a member of a recognized Signature Medallion Guarantee Program.
Instructions:
| 1. | Signature of transferor must be the signature of the person appearing on the face of the Warrant
Certificate. |
| 2. | If there is more than one person appearing on the face of the Warrant Certificate, all must sign. |
| 3. | If the Transfer of Warrants is signed by a trustee, executor, administrator, curator, guardian,
attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied
by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of transfer are being forwarded by mail, registered mail
must be employed. |
Exhibit 4.8
UNLESS PERMITTED UNDER SECURITIES LEGISLATION,
THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY
BEFORE JANUARY 10, 2014.
WITHOUT PRIOR APPROVAL OF THE TSX VENTURE
EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON
OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL JANUARY
10, 2014.
THIS WARRANT AND THE SECURITIES DELIVERABLE
UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED
WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE UNITED STATES FEDERAL AND STATE SECURITIES LAWS
OR WITHOUT DELIVERING AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. DELIVERY OF THIS
WARRANT MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
THIS WARRANT CERTIFICATE IS VOID IF
NOT EXERCISED ON OR BEFORE 5:00 P.M. (PACIFIC TIME) ON SEPTEMBER 9, 2016.
WARRANT CERTIFICATE
STELLAR BIOTECHNOLOGIES, INC.
(Continued under the laws of the Province
of British Columbia)
WARRANT |
___________ WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
CERTIFICATE NO. 2013-___ |
THIS IS TO CERTIFY
THAT [Name] of [Address] (hereinafter referred to as the “holder” or the “Warrantholder”) is entitled
to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth herein,
at any time and from time to time until 5:00 p.m. (Pacific time) (the “Expiry Time”) on September 9, 2016
(the “Expiry Date”), one fully paid and non-assessable common share (“Common Share”)
in the capital of STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada
(the “Company”).
These Warrants may
only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041, or the registered
office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5 (or such other office or
agency of the Company as it may designate by notice in writing to the Warrantholder at the address of the Warrantholder appearing
on the books of the Company).
These Warrants are issued subject to the
terms and conditions appended hereto as Schedule “A”.
IN WITNESS WHEREOF,
the Company has caused this Warrant Certificate to be executed by a duly authorized officer of the Company.
DATED for reference the 9th
day of September, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Scott Davis, Chief Financial Officer |
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The Terms and Conditions of the Warrant Certificate are agreed and accepted: |
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BROKER NAME |
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Per: |
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Name, Title |
(See terms and conditions attached hereto)
SCHEDULE “A”
TERMS AND CONDITIONS FOR WARRANT CERTIFICATE
Terms and Conditions
attached to the Warrant Certificate issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”) and dated
for reference the 9th day of September, 2013.
ARTICLE 1
INTERPRETATION
1.1 Definitions.
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
(a) “1933
Act” means the United States Securities Act of 1933, as amended;
(b) “Common
Shares” means the common shares in the capital of the Company to be issued pursuant to the exercise of Warrants;
(c) “Company”
means STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada unless
and until a successor corporation shall have become such in the manner prescribed in Article 6, and thereafter “Company”
shall mean such successor corporation;
(d) “Company’s
Auditors” means an independent firm of accountants duly appointed as auditors of the Company;
(e) “Dollars”
or use of signs “US $” or “$” means only lawful money of the United States and not any other
currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted
into lawful money of the United States;
(f) “Exchange”
means the TSX Venture Exchange or such other stock exchange on which the Company’s Common Shares are listed and posted for
trading;
(g) “Exercise
Date” has that meaning ascribed to that term in Section 3.2 of this Schedule
“A”;
(h) “Exercise
Price” means the price of US $1.05 per share if exercised on or before September 9, 2016;
(i) “Expiry
Time” means 5:00 p.m. (Pacific Time) on the Expiry Date;
(j) “Expiry
Date” means September 9, 2016.
(k) “herein”,
“hereby” and similar expressions refer to these Terms and Conditions as the same may be amended or modified
from time to time; and the expression “Article” and “Section” followed by a number refer to the specified
Article or Section of these Terms and Conditions;
(l) “Issue
Date” means the issue date of the Warrant shown on the face page of the Warrant Certificate;
(m) “person”
means an individual, corporation, partnership, trustee or any unincorporated organization and words importing persons have a similar
meaning;
(n) “Subscription
Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”;
(o) “United
States” has that meaning ascribed to it in Rule 902(1) of Regulation S;
(p) “Warrant”
means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and
(q) “Warrant
Certificate” means the certificate to which these Terms and Conditions are attached.
1.2 Interpretation
Not Affected by Headings.
(a) The
division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation thereof.
(b) Words
importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and
neuter genders.
1.3 Applicable
Law. The terms hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia
and the laws of Canada, and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Warrant.
ARTICLE 2
ISSUE OF WARRANT
2.1 Issue
of Warrants. That number of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
2.2 Additional
Warrants. Subject to any other written agreement between the Company and the Warrantholder, the Company may at any time and
from time to time undertake further equity or debt financing and may issue additional Common Shares, warrants or grant options
or similar rights to purchase Common Shares to any person.
2.3 Issue
in Substitution for Lost Warrants. If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
(a) the
Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
(b) the
holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction or theft
of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith.
2.4 Warrantholder
Not a Shareholder. The Warrant shall not constitute the holder a shareholder of the Company, nor entitle it to any right or
interest in respect thereof (including but not limited to voting rights) except as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 Method
of Exercise of the Warrant. The right to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior
to the Expiry Time, by the holder delivering to the Company (whether via facsimile or otherwise) a duly completed and executed
subscription form substantially in the form attached hereto as Schedule “B” (the “Subscription Form”)
and a certified check, bank draft, wire transfer or a money order payable to or to the order of the Company, for the Exercise Price
applicable at the time of exercise in respect of the Common Shares subscribed for in lawful money of the United States, to the
Company.
3.2 Effective
Date of Exercise of the Warrant. This Warrant Certificate together with such Subscription Form, certified check, bank draft,
wire transfer or a money order will be deemed to be exercised only upon actual receipt thereof by the Company as set out above
(the “Exercise Date”).
3.3 Effect
of Exercise of the Warrant.
(a) Upon
delivery of the Subscription Form and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and
non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such delivery and such
payment; and
(b) Within
five business days after delivery and payment as aforesaid, the Company shall forthwith cause the issuance to the holder of a certificate
for the Common Shares purchased as aforesaid.
3.4 Subscription
for Less than Entitlement. The holder may subscribe for and purchase a number of Common Shares less than the number which it
is entitled to purchase pursuant to this Warrant Certificate. Execution and delivery of a Subscription Form with respect to less
than all of the shares underlying this Warrant shall have the same effect as cancellation of the original of this Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of shares underlying this Warrant. Execution and delivery
of a Subscription Form for all of the then- remaining shares underlying this Warrant shall have the same effect as cancellation
of the original of this Warrant after delivery of the shares underlying this Warrant in accordance with the terms hereof.
3.5 Expiration
of the Warrant. After the Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and
of no effect.
3.6 Hold
Periods and Legending of Share Certificate. The certificates representing the Common Shares to be issued pursuant to the exercise
of this Warrant shall bear a legend in substantially the following forms:
(a)
“THE SHARES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND MAY
NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT.”
(b)
“Unless permitted under
securities legislation, the holder of the securities shall not trade the securities before January 10, 2014.”
“Without prior written approval
of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this certificate
may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange or otherwise
in Canada or to or for the benefit of a Canadian resident until January 10, 2014.”
ARTICLE 4
ADJUSTMENTS
4.1 Adjustments.
The number of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) in
the event the Company shall:
(i) pay
a dividend in Common Shares or make a distribution in Common Shares;
(ii) subdivide
its outstanding Common Shares;
(iii) combine
its outstanding Common Shares into a smaller number of Common Shares;
or
(iv) issue
by reclassification of its Common Shares other securities of the Company (including any such reclassification in connection with
a consolidation, merger, amalgamation or other combination in which the Company is the surviving corporation);
the number of Common Shares (or other securities)
purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder shall be entitled
to receive the kind and number of Common Shares or other securities of the Company which it would have owned or have been entitled
to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a) shall become effective
immediately after the effective date of such event retroactive to the record date, if any, for such event.
(b) In
case the Company shall issue rights, options or warrants to all or substantially all holders of its outstanding Common Shares,
without any charge to such holders, entitling them (for a period within 45 days after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share which is lower than 95% of the current market price at the record date mentioned
below (as determined in accordance with subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of Common Shares outstanding on the date of issuance of such rights,
options or warrants plus the number of additional Common Shares offered for subscription or purchase, and of which the denominator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the current market
price per Common Share at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In
case the Company shall distribute to all or substantially all holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings or earned surplus and dividends or distributions
referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in
each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall
be the then current market price per Common Share (as determined in accordance with subsection (d) below) on the date of such distribution,
and of which the denominator shall be the then current market price per Common Share less the then fair value (as determined by
the board of directors of the Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options or warrants, or of such convertible or exchangeable securities applicable to one Common
Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to receive such distribution.
In the event of the distribution
by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or securities convertible
or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable upon the exercise of each
Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company, such subsidiary or both,
as the Company shall reasonably determine, the shares or other securities to which such Warrantholder would have been entitled
if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment as provided in this
Section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other securities shall
be made during the term of a Warrant or upon the exercise of a Warrant.
(d) For
the purpose of any computation under subsections (b) and (c) of this Section 4.1, the current market price per Common Share
at any date shall be the weighted average price per Common Share for twenty-five (25) consecutive trading days, commencing
not more than 45 trading days before such date on the stock exchange on which the Common Shares are then traded; provided if
the Common Shares are then traded on more than one stock exchange, then on the stock exchange on which the largest volume of
Common Shares were traded during such twenty-five (25) consecutive trading day period. The weighted average price per Common
Share shall be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market, as the
case may be, during the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes of
this subsection (d), trading day means, with respect to a stock exchange, a day on which such exchange is open for the
transaction of business. Should the Common Shares not be listed on any stock exchange the current market price per Common
Share at any date shall be determined by the board of directors of the Company, acting reasonably.
(e) In
any case in which this Article 4 shall require that any adjustment in the Exercise Price be made effective immediately after a
record date for a specified event, the Company may elect to defer until the occurrence of the event the issuance, to the holder
of any Warrant exercised after that record date, of the Common Shares and other shares of the Company, if any, issuable upon the
exercise of the Warrant over and above the Common Shares and other shares of the Company; provided, however, that the Company shall
deliver to the holder an appropriate instrument evidencing the holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) No
adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the nearest one-hundredth of a share.
(g) Wherever
the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of Common Shares purchasable immediately thereafter.
(h) No
adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need be made under subsections (b) and
(c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants, or convertible or exchangeable securities,
or evidences of indebtedness or assets referred to in those subsections which the Warrantholder would have been entitled to receive
had the Warrants been exercised prior to the happening of such event or the record date with respect thereto.
(i) In
the event that at any time, as a result of an adjustment made pursuant to subsection (a) above, the Warrantholder shall become
entitled to purchase any securities of the Company other than Common Shares, thereafter the number of such other shares
so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained
in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this Article 4
with respect to the Common Shares, shall apply on like terms to any such other securities.
(j) Upon
the expiration of any rights, options, warrants or conversion or exchange privileges, if any thereof shall not have been exercised,
the Exercise Price and the number of Common Shares purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if:
(i) the
only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights; and
(ii) such
Common Shares, if any, were issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised;
provided further, that no such readjustment
shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon the exercise
of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance, sale or grant
of such rights, options, warrants or conversion or exchange rights.
4.2 Voluntary
Adjustment by the Company. Subject to requisite Exchange approval, the Company may, at its option, at any time during the term
of the Warrants, reduce the then current Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
4.3 Notice
of Adjustment. Whenever the number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of
such Common Shares is adjusted, as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment or adjustments.
4.4 No
Adjustment for Dividends. Except as provided in Section 4.1 of this Article 4, no adjustment in respect of any dividends shall
be made during the term of a Warrant or upon the exercise of a Warrant.
4.5 Preservation
of Purchase Rights Upon Merger, Consolidation, etc. In connection with any consolidation of the Company with, or amalgamation
or merger of the Company with or into, another corporation (including, without limitation, pursuant to a “takeover bid”,
“tender offer” or other acquisition of all or substantially all of the outstanding Common Shares) or in case of any
sale, transfer or lease to another corporation of all or substantially all the property of the Company, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter, upon payment of the Exercise Price in effect immediately prior to such action, to purchase upon exercise
of each Warrant the kind and amount of shares and other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, amalgamation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action, and the Warrantholder shall be bound to accept such shares and other securities and property
in lieu of the Common Shares to which it was previously entitled; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property shall be made during the term of a Warrant or
upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Schedule “A”. The provisions of this Article 4 shall similarly
apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 Determination
of Adjustments. If any questions shall at any time arise with respect to the Exercise Price, such question shall be conclusively
determined by the Company’s Auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver,
British Columbia, that the Company may designate and the Warrantholder, acting reasonably, may approve, and who shall have access
to all appropriate records and such determination shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 Reservation
of Common Shares. The Company will reserve and there will remain unissued out of its authorized capital a sufficient number
of Common Shares to satisfy the rights of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 Company
May Consolidate, etc. on Certain Terms. Nothing herein contained shall prevent any consolidation, amalgamation or merger of
the Company with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the properties
and estates of the Company as an entirety to any corporation lawfully entitled to acquire and operate same, provided, however,
that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially
all the properties and estates of the Company as an entirety shall, simultaneously with such amalgamation, merger, conveyance or
transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed or
observed by the Company.
6.2 Successor
Company Substituted. In case the Company, pursuant to Section 6.1 shall be consolidated, amalgamated or merged with or into
any other corporation or corporations or shall convey or transfer all or substantially all of its properties and estates as an
entirety to any other corporation, the successor corporation formed by such consolidation or amalgamation, or into which the Company
shall have been consolidated, amalgamated or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed
to and be substituted for the Company hereunder and such changes in phraseology and form (but not in substance) may be made in
the Warrant Certificate and herein as may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
7.1 Amendment, etc.
This Warrant Certificate may only be amended and the obligations of the Company and the rights of the Warrantholder under this
Warrant Certificate may be amended, waived, discharged or terminated (either generally or in a particular instance, either retroactively
or prospectively and either for a specified period of time or indefinitely) by a written instrument signed by the Company and the
Warrantholder.
ARTICLE 8
MISCELLANEOUS
8.1 Time.
Time is of the essence of the terms of this Warrant Certificate.
8.2 Notice.
Any notice or other communication to be given in connection with this Warrant Certificate must be in writing and given by (a) personal
delivery to the party to be notified,
(b) when sent, if sent by electronic mail
(including PDF) or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then
on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt, to the recipient at the address below indicated:
If to the Company:
Stellar Biotechnologies, Inc.
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
Attention: Chief Financial Officer
If to the Warrantholder:
To the address of such Holder set forth on
the books and records of the Company.
or such other address
or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party
in accordance with the provisions of this paragraph 8.2.
8.3 Disposition
of Shares and Warrant.
(a) The
Holder hereby acknowledges that: (i) this Warrant and any Common Shares issuable upon exercise of the Warrant have not been registered
(A) under the 1933 Act on the ground that the issuance of this Warrant is exempt from registration under Section 4(a)(2) of the
1933 Act as not involving any public offering, or (B) under any applicable state securities law because the issuance of this Warrant
does not involve any public offering; and (ii) that the Company’s reliance on the registration exemption under Section 4(a)(2)
of the 1933 Act and under applicable state securities laws is predicated in part on the representations hereby made to the Company
by the Warrantholder. The Warrantholder represents and warrants that he, she or it is acquiring this Warrant and will acquire Common
Shares issuable upon exercise of the Warrant for investment for his, her or its own account, with no present intention of dividing
his, her or its participation with others or reselling or otherwise distributing this Warrant or Common Shares issuable upon exercise
of the Warrant.
(b) The
Warrantholder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer
”) all or any part of this Warrant and/or Common Shares issuable upon exercise of the Warrant unless and until he,
she or it shall have first obtained an opinion, reasonably satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Warrantholder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may
be made without registration under the 1933 Act and without registration or qualification under any United States state law.
(c) If,
at the time of issuance of Common Shares issuable upon exercise of the Warrant, no registration statement is in effect with respect
to such shares under applicable provisions of the 1933 Act and the Common Shares issuable upon exercise of the Warrant may not
be sold pursuant to Rule 144 of the 1933 Act, the Company may, at its election, require that any stock certificate evidencing Common
Shares issuable upon exercise of the Warrant shall bear the legend reading substantially as set forth in paragraph 3.6(a) above.
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Common Shares issuable upon exercise
of the Warrant, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the
shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
8.4 Transfer
of Warrants. Subject to applicable securities legislation (including, but not limited to, the 1933 Act) and the rules, policies,
notices and orders issued by applicable securities regulatory authorities, including the TSX Venture Exchange (or any other stock
exchange on which the Common Shares are listed), the Warrants evidenced hereby (or any portion thereof) may be assigned or transferred
by the holder by duly completing and executing the transfer form attached hereto as Schedule “C”. The rights and obligations
of the Company and Warrantholder shall be binding upon and enure to the benefit of their successors and permitted assigns.
8.5 Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record holder hereof from time to time. The Company may deem and treat the registered
holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the holder, and
for all other purposes, absent actual notice to the contrary.
SCHEDULE “B”
SUBSCRIPTION FORM
TO: |
Stellar Biotechnologies, Inc. |
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332 E. Scott Street |
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Port Hueneme, California 93041 |
The undersigned Holder
of the within Warrants hereby subscribes for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES,
INC. (the “Company”) pursuant to the within Warrants at US $1.05 per Common Share on the terms specified
in the said Warrants. This subscription is accompanied by a certified check, bank draft, wire transfer or a money order payable
to or to the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription: (check
one):
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1. |
¨ |
The undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
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2. |
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The undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act) that purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account, (ii) it is exercising the Warrants for its own account, and (iii) it remains an Accredited Investor on the date of exercise of the Warrants. |
Note: The Common Shares will not be registered
or delivered to a U.S. address unless the undersigned has checked box 2 above and satisfied the applicable requirements thereof.
A legend will be placed on any Common Shares issued pursuant to box 2 above to the effect that the Common Shares may not be transferred
except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state securities laws.
The undersigned hereby directs that the
Common Shares be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this ____________day of________________________,
20____.
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature
of the person appearing on the face of the Warrant Certificate. |
| 2. | If there is more than one holder of the Warrants, all holders
must sign. |
| 3. | In the case of persons signing by a trustee, executor,
administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity,
the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of subscription
are being forwarded by mail, registered mail must be employed. |
Exhibit 4.9
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY
BEFORE JANUARY 21, 2014.
WITHOUT PRIOR APPROVAL OF
THE TSX VENTURE EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL
JANUARY 21, 2014.
THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE UNITED STATES FEDERAL AND STATE
SECURITIES LAWS OR WITHOUT DELIVERING AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
DELIVERY OF THIS WARRANT MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
THIS WARRANT CERTIFICATE
IS VOID IF NOT EXERCISED ON OR BEFORE 5:00 P.M. (PACIFIC TIME) ON SEPTEMBER 20, 2016.
WARRANT CERTIFICATE
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws of
the Province of British Columbia)
WARRANT
CERTIFICATE NO. 2013- |
WARRANTS
entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented
hereby. |
THIS IS
TO CERTIFY THAT [Name] of [Address] (hereinafter referred to as the “holder” or the “Warrantholder”)
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific time) (the “Expiry Time”) on September 20,
2016 (the “Expiry Date”), one fully paid and non-assessable common share (“Common Share”)
in the capital of STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada
(the “Company”).
These Warrants
may only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041, or the
registered office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5 (or such other
office or agency of the Company as it may designate by notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company).
These Warrants are issued subject to the terms and
conditions appended hereto as Schedule “A”.
IN WITNESS
WHEREOF, the Company has caused this Warrant Certificate to be executed by a duly authorized officer of the Company.
DATED for reference the 20th day
of September, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Scott Davis, Chief Financial Officer |
(See terms and conditions attached hereto)
SCHEDULE “A”
TERMS AND CONDITIONS FOR WARRANT CERTIFICATE
Terms and
Conditions attached to the Warrant Certificate issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”)
and dated for reference the 20th day of September, 2013.
ARTICLE 1
INTERPRETATION
1.1 Definitions.
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
(a) “1933
Act” means the United States Securities Act of 1933, as amended;
(b) “Common
Shares” means the common shares in the capital of the Company to be issued pursuant to the exercise of Warrants;
(c) “Company”
means STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada unless
and until a successor corporation shall have become such in the manner prescribed in Article 6, and thereafter “Company”
shall mean such successor corporation;
(d) “Company’s
Auditors” means an independent firm of accountants duly appointed as auditors of the Company;
(e) “Dollars”
or use of signs “US $” or “$” means only lawful money of the United States and not any other
currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted
into lawful money of the United States;
(f) “Exchange”
means the TSX Venture Exchange or such other stock exchange on which the Company’s Common Shares are listed and posted for
trading; Schedule “A”;
(g) “Exercise
Date” has that meaning ascribed to that term in Section 3.2 of this before September 20, 2016;
(h) “Exercise
Price” means the price of US $1.35 per share if exercised on or
(i) “Expiry
Time” means 5:00 p.m. (Pacific Time) on the Expiry Date;
(j) “Expiry
Date” means September 20, 2016.
(k) “herein”,
“hereby” and similar expressions refer to these Terms and Conditions as the same may be amended or modified
from time to time; and the expression “Article” and “Section” followed by a number refer to the specified
Article or Section of these Terms and Conditions;
(l) “Issue
Date” means the issue date of the Warrant shown on the face page of the Warrant Certificate;
(m) “person”
means an individual, corporation, partnership, trustee or any unincorporated organization and words importing persons have a similar
meaning;
(n) “Subscription
Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”;
(o) “United
States” has that meaning ascribed to it in Rule 902(1) of Regulation S;
(p) “Warrant”
means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and
(q) “Warrant
Certificate” means the certificate to which these Terms and Conditions are attached.
1.2 Interpretation
Not Affected by Headings.
(a) The
division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation thereof.
(b) Words
importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and
neuter genders.
1.3 Applicable
Law. The terms hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia
and the laws of Canada, and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Warrant.
ARTICLE 2
ISSUE OF WARRANT
2.1 Issue
of Warrants. That number of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
2.2 Additional
Warrants. Subject to any other written agreement between the Company and the Warrantholder, the Company may at any time and
from time to time undertake further equity or debt financing and may issue additional Common Shares, warrants or grant options
or similar rights to purchase Common Shares to any person.
2.3 Issue
in Substitution for Lost Warrants. If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
(a) the
Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
(b) the
holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction or theft
of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith.
2.4 Warrantholder
Not a Shareholder. The Warrant shall not constitute the holder a shareholder of the Company, nor entitle it to any right or
interest in respect thereof (including but not limited to voting rights) except as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 Method
of Exercise of the Warrant. The right to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior
to the Expiry Time, by the holder delivering to the Company (whether via facsimile or otherwise) a duly completed and executed
subscription form substantially in the form attached hereto as Schedule “B” (the “Subscription Form”)
and a certified check, bank draft, wire transfer or a money order payable to or to the order of the Company, for the Exercise Price
applicable at the time of exercise in respect of the Common Shares subscribed for in lawful money of the United States, to the
Company.
3.2 Effective
Date of Exercise of the Warrant. This Warrant Certificate together with such Subscription Form, certified check, bank draft,
wire transfer or a money order will be deemed to be exercised only upon actual receipt thereof by the Company as set out above
(the “Exercise Date”).
3.3 Effect
of Exercise of the Warrant.
(a) Upon
delivery of the Subscription Form and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and
non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such delivery and such
payment; and
(b) Within
five business days after delivery and payment as aforesaid, the Company shall forthwith cause the issuance to the holder of a certificate
for the Common Shares purchased as aforesaid.
3.4 Subscription
for Less than Entitlement. The holder may subscribe for and purchase a number of Common Shares less than the number which it
is entitled to purchase pursuant to this Warrant Certificate. Execution and delivery of a Subscription Form with respect to less
than all of the shares underlying this Warrant shall have the same effect as cancellation of the original of this Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of shares underlying this Warrant. Execution and delivery
of a Subscription Form for all of the then- remaining shares underlying this Warrant shall have the same effect as cancellation
of the original of this Warrant after delivery of the shares underlying this Warrant in accordance with the terms hereof.
3.5 Expiration
of the Warrant. After the Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and
of no effect.
3.6 Hold
Periods and Legending of Share Certificate. The certificates representing the Common Shares to be issued pursuant to the exercise
of this Warrant shall bear a legend in substantially the following forms:
(a)
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE
1933 ACT.”
(b)
“Unless permitted under
securities legislation, the holder of the securities shall not trade the securities before January 21, 2014.”
“Without prior written approval
of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this certificate
may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange or otherwise
in Canada or to or for the benefit of a Canadian resident until January 21, 2014.”
ARTICLE 4
ADJUSTMENTS
4.1 Adjustments.
The number of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) in
the event the Company shall:
(i) pay
a dividend in Common Shares or make a distribution in Common Shares;
(ii) subdivide
its outstanding Common Shares;
(iii) combine
its outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue
by reclassification of its Common Shares other securities of the Company (including any such reclassification in connection with
a consolidation, merger, amalgamation or other combination in which the Company is the surviving corporation);
the number of Common Shares (or
other securities) purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder
shall be entitled to receive the kind and number of Common Shares or other securities of the Company which it would have owned
or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately
prior to the happening of such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
(b) In
case the Company shall issue rights, options or warrants to all or substantially all holders of its outstanding Common Shares,
without any charge to such holders, entitling them (for a period within 45 days after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share which is lower than 95% of the current market price at the record date mentioned
below (as determined in accordance with subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of Common Shares outstanding on the date of issuance of such rights,
options or warrants plus the number of additional Common Shares offered for subscription or purchase, and of which the denominator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the current market
price per Common Share at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In
case the Company shall distribute to all or substantially all holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings or earned surplus and dividends or distributions
referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in
each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall
be the then current market price per Common Share (as determined in accordance with subsection (d) below) on the date of such distribution,
and of which the denominator shall be the then current market price per Common Share less the then fair value (as determined by
the board of directors of the Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options or warrants, or of such convertible or exchangeable securities applicable to one Common
Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to receive such distribution.
In the event
of the distribution by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or
securities convertible or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable
upon the exercise of each Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company,
such subsidiary or both, as the Company shall reasonably determine, the shares or other securities to which such Warrantholder
would have been entitled if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment
as provided in this Section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other
securities shall be made during the term of a Warrant or upon the exercise of a Warrant.
(d) For
the purpose of any computation under subsections (b) and (c) of this Section 4.1, the current market price per Common Share at
any date shall be the weighted average price per Common Share for twenty-five (25) consecutive trading days, commencing not more
than 45 trading days before such date on the stock exchange on which the Common Shares are then traded; provided if the Common
Shares are then traded on more than one stock exchange, then on the stock exchange on which the largest volume of Common Shares
were traded during such twenty-five (25) consecutive trading day period. The weighted average price per Common Share shall
be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market, as the case may be, during
the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes of this subsection (d),
trading day means, with respect to a stock exchange, a day on which such exchange is open for the transaction of business. Should
the Common Shares not be listed on any stock exchange the current market price per Common Share at any date shall be determined
by the board of directors of the Company, acting reasonably.
(e) In
any case in which this Article 4 shall require that any adjustment in the Exercise Price be made effective immediately after a
record date for a specified event, the Company may elect to defer until the occurrence of the event the issuance, to the holder
of any Warrant exercised after that record date, of the Common Shares and other shares of the Company, if any, issuable upon the
exercise of the Warrant over and above the Common Shares and other shares of the Company; provided, however, that the Company shall
deliver to the holder an appropriate instrument evidencing the holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) No
adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the nearest one-hundredth of a share.
(g) Wherever
the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of Common Shares purchasable immediately thereafter.
(h) No
adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need be made under subsections (b) and
(c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants, or convertible or exchangeable securities,
or evidences of indebtedness or assets referred to in those subsections which the Warrantholder would have been entitled to receive
had the Warrants been exercised prior to the happening of such event or the record date with respect thereto.
(i) In
the event that at any time, as a result of an adjustment made pursuant to subsection (a) above, the Warrantholder shall
become entitled to purchase any securities of the Company other than Common Shares, thereafter the number of such
other shares so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to
the Common Shares contained in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4,
inclusive, of this Article 4 with respect to the Common Shares, shall apply on like terms to any such other securities.
(j) Upon
the expiration of any rights, options, warrants or conversion or exchange privileges, if any thereof shall not have been exercised,
the Exercise Price and the number of Common Shares purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if:
(i) the
only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights; and
(ii) such
Common Shares, if any, were issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised;
provided further, that no such
readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon
the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange rights.
4.2 Voluntary
Adjustment by the Company. Subject to requisite Exchange approval, the Company may, at its option, at any time during the term
of the Warrants, reduce the then current Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
4.3 Notice
of Adjustment. Whenever the number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of
such Common Shares is adjusted, as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment or adjustments.
4.4 No
Adjustment for Dividends. Except as provided in Section 4.1 of this Article 4, no adjustment in respect of any dividends shall
be made during the term of a Warrant or upon the exercise of a Warrant.
4.5 Preservation
of Purchase Rights Upon Merger, Consolidation, etc. In connection with any consolidation of the Company with, or amalgamation
or merger of the Company with or into, another corporation (including, without limitation, pursuant to a “takeover bid”,
“tender offer” or other acquisition of all or substantially all of the outstanding Common Shares) or in case of any
sale, transfer or lease to another corporation of all or substantially all the property of the Company, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter, upon payment of the Exercise Price in effect immediately prior to such action, to purchase upon exercise
of each Warrant the kind and amount of shares and other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, amalgamation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action, and the Warrantholder shall be bound to accept such shares and other securities and property
in lieu of the Common Shares to which it was previously entitled; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property shall be made during the term of a Warrant or
upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Schedule “A”. The provisions of this Article 4 shall similarly
apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 Determination
of Adjustments. If any questions shall at any time arise with respect to the Exercise Price, such question shall be conclusively
determined by the Company’s Auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver,
British Columbia, that the Company may designate and the Warrantholder, acting reasonably, may approve, and who shall have access
to all appropriate records and such determination shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 Reservation
of Common Shares. The Company will reserve and there will remain unissued out of its authorized capital a sufficient number
of Common Shares to satisfy the rights of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 Company
May Consolidate, etc. on Certain Terms. Nothing herein contained shall prevent any consolidation, amalgamation or merger of
the Company with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the properties
and estates of the Company as an entirety to any corporation lawfully entitled to acquire and operate same, provided, however,
that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially
all the properties and estates of the Company as an entirety shall, simultaneously with such amalgamation, merger, conveyance or
transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed or
observed by the Company.
6.2 Successor
Company Substituted. In case the Company, pursuant to Section 6.1 shall be consolidated, amalgamated or merged with or into
any other corporation or corporations or shall convey or transfer all or substantially all of its properties and estates as an
entirety to any other corporation, the successor corporation formed by such consolidation or amalgamation, or into which the Company
shall have been consolidated, amalgamated or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed
to and be substituted for the Company hereunder and such changes in phraseology and form (but not in substance) may be made in
the Warrant Certificate and herein as may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
7.1 Amendment,
etc. This Warrant Certificate may only be amended and the obligations of the Company and the rights of the Warrantholder under
this Warrant Certificate may be amended, waived, discharged or terminated (either generally or in a particular instance, either
retroactively or prospectively and either for a specified period of time or indefinitely) by a written instrument signed by the
Company and the Warrantholder.
ARTICLE 8
MISCELLANEOUS
8.1 Time.
Time is of the essence of the terms of this Warrant Certificate.
8.2 Notice.
Any notice or other communication to be given in connection with this Warrant Certificate must be in writing and given by
(a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail (including PDF) or facsimile
during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt, to the recipient at the address below
indicated:
If to the Company:
Stellar Biotechnologies, Inc.
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
Attention: Chief Financial Officer
If to the Warrantholder:
To the address of such Holder set forth on the books
and records of the Company.
or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party in accordance with the provisions of this paragraph 8.2.
8.3 Disposition
of Shares and Warrant.
(a) The
Holder hereby acknowledges that: (i) this Warrant and any Common Shares issuable upon exercise of the Warrant have not been
registered (A) under the 1933 Act on the ground that the issuance of this Warrant is exempt from registration under Section
4(a)(2) of the 1933 Act as not involving any public offering, or (B) under any applicable state securities law because the
issuance of this Warrant does not involve any public offering; and (ii) that the Company’s reliance on the registration
exemption under Section 4(a)(2) of the 1933 Act and under applicable state securities laws is predicated in part on the
representations hereby made to the Company by the Warrantholder. The Warrantholder represents and warrants that he, she or it
is acquiring this Warrant and will acquire Common Shares issuable upon exercise of the Warrant for investment for his, her or
its own account, with no present intention of dividing his, her or its participation with others or reselling or otherwise
distributing this Warrant or Common Shares issuable upon exercise of the Warrant.
(b) The
Warrantholder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer
”) all or any part of this Warrant and/or Common Shares issuable upon exercise of the Warrant unless and until he,
she or it shall have first obtained an opinion, reasonably satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Warrantholder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may
be made without registration under the 1933 Act and without registration or qualification under any United States state law.
(c) If,
at the time of issuance of Common Shares issuable upon exercise of the Warrant, no registration statement is in effect with respect
to such shares under applicable provisions of the 1933 Act and the Common Shares issuable upon exercise of the Warrant may not
be sold pursuant to Rule 144 of the 1933 Act, the Company may, at its election, require that any stock certificate evidencing Common
Shares issuable upon exercise of the Warrant shall bear the legend reading substantially as set forth in paragraph 3.6(a) above.
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Common Shares issuable upon exercise
of the Warrant, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the
shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
8.4 Transfer
of Warrants. Subject to applicable securities legislation (including, but not limited to, the 1933 Act) and the rules, policies,
notices and orders issued by applicable securities regulatory authorities, including the TSX Venture Exchange (or any other stock
exchange on which the Common Shares are listed), the Warrants evidenced hereby (or any portion thereof) may be assigned or transferred
by the holder by duly completing and executing the transfer form attached hereto as Schedule “C”. The rights and obligations
of the Company and Warrantholder shall be binding upon and enure to the benefit of their successors and permitted assigns.
8.5 Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record holder hereof from time to time. The Company may deem and treat the registered
holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the holder, and
for all other purposes, absent actual notice to the contrary.
SCHEDULE “B”
SUBSCRIPTION FORM
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
The undersigned
Holder of the within Warrants hereby subscribes for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES,
INC. (the “Company”) pursuant to the within Warrants at US $1.35 per Common Share on the terms specified
in the said Warrants. This subscription is accompanied by a certified check, bank draft, wire transfer or a money order payable
to or to the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription: (check one):
| 1. |
¨ | The
undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act
of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual
resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and
any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not
within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising
any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States. |
| 2. |
¨ | The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act) that
purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account, (ii) it is exercising
the Warrants for its own account, and (iii) it remains an Accredited Investor on the date of exercise of the Warrants. |
Note: The Common Shares will not
be registered or delivered to a U.S. address unless the undersigned has checked box 2 above and satisfied the applicable requirements
thereof. A legend will be placed on any Common Shares issued pursuant to box 2 above to the effect that the Common Shares may not
be transferred except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state securities
laws.
The undersigned hereby directs that the Common Shares
be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this day
of ,
20 .
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
1. |
The signature to the subscription must be the signature of the person appearing on the face of the Warrant Certificate. |
2. |
If there is more than one holder of the Warrants, all holders must sign. |
3. |
In the case of persons signing by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
4. |
If the Warrant certificate and the form of subscription are being forwarded by mail, registered mail must be employed. |
SCHEDULE “C”
TRANSFER FORM
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
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Port Hueneme, California 93041 |
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto (name)
(“Assignee”),
of (address), Warrants
of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) registered in the name of the undersigned on
the records of the Company represented by the within warrant certificate and irrevocably appoints the
attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.
The undersigned hereby
certifies that, by assignment hereof, the Warrant and the shares of stock to be issued upon exercise of the Warrant are being acquired
for investment and that the Assignee will not offer, sell or otherwise dispose of the Warrant or any shares of stock to be issued
upon exercise thereof except under circumstances which will not result in a violation of the United States Securities Act of 1933,
as amended, or any United States state securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant,
the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of
stock so purchased are being acquired for investment and not with a view toward distribution or resale.
DATED this day
of ,
20 _.
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(Witness) |
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(Signature of Registered Warrant Holder) |
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(Print name of Registered Warrant Holder) |
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Signature of transferor guaranteed by: |
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* |
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* Authorized Signature Number |
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NOTE: The signature of the Holder to this
assignment must correspond exactly with the name of the Holder as set forth on the face of this Warrant certificate in every particular,
without alteration or enlargement or any change whatsoever and the signature must be guaranteed by a Canadian chartered bank or
by a Canadian trust company or by a medallion signature guarantee from a member of a recognized Signature Medallion Guarantee Program.
Instructions:
1. |
Signature of transferor must be the signature of the person appearing on the face of the Warrant Certificate. |
2. |
If there is more than one person appearing on the face of the Warrant Certificate, all must sign. |
3. |
If the Transfer of Warrants is signed by a trustee, executor, administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity, the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
4. |
If the Warrant certificate and the form of transfer are being forwarded by mail, registered mail must be employed. |
Exhibit 4.10
UNLESS
PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE
THE SECURITY BEFORE JANUARY 21, 2014.
WITHOUT PRIOR APPROVAL OF
THE TSX VENTURE EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL
JANUARY 21, 2014.
THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE UNITED STATES FEDERAL AND STATE
SECURITIES LAWS OR WITHOUT DELIVERING AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
DELIVERY OF THIS WARRANT MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
THIS WARRANT CERTIFICATE
IS VOID IF NOT EXERCISED ON OR BEFORE
5:00 P.M. (PACIFIC TIME) ON
SEPTEMBER 20, 2016.
WARRANT CERTIFICATE
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws of
the Province of British Columbia)
WARRANT |
_____________WARRANTS entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
CERTIFICATE NO. 2013-___ |
THIS IS
TO CERTIFY THAT [Name] of [Address] (hereinafter referred to as the “holder” or the “Warrantholder”)
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific time) (the “Expiry Time”) on September 20,
2016 (the “Expiry Date”), one fully paid and non-assessable common share (“Common Share”)
in the capital of STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada
(the “Company”).
These Warrants
may only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041, or the
registered office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5 (or such other
office or agency of the Company as it may designate by notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company).
These Warrants are issued subject to the terms and
conditions appended hereto as Schedule “A”.
IN WITNESS
WHEREOF, the Company has caused this Warrant Certificate to be executed by a duly authorized officer of the Company.
DATED
for reference the 20th day of September, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Scott Davis, Chief Financial Officer |
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The Terms and Conditions of the Warrant Certificate are agreed and accepted: |
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BROKER NAME |
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Per: |
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Name, Title |
(See terms and conditions attached hereto)
SCHEDULE “A”
TERMS AND CONDITIONS FOR WARRANT CERTIFICATE
Terms and
Conditions attached to the Warrant Certificate issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”)
and dated for reference the 20th day of September, 2013.
ARTICLE 1
INTERPRETATION
1.1 Definitions.
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
(a) “1933
Act” means the United States Securities Act of 1933, as amended;
(b) “Common
Shares” means the common shares in the capital of the Company to be issued pursuant to the exercise of Warrants;
(c) “Company”
means STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada unless
and until a successor corporation shall have become such in the manner prescribed in Article 6, and thereafter “Company”
shall mean such successor corporation;
(d) “Company’s
Auditors” means an independent firm of accountants duly appointed as auditors of the Company;
(e) “Dollars”
or use of signs “US $” or “$” means only lawful money of the United States and not any other
currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted
into lawful money of the United States;
(f) “Exchange”
means the TSX Venture Exchange or such other stock exchange on which the Company’s Common Shares are listed and posted for
trading;
(g) “Exercise
Date” has that meaning ascribed to that term in Section 3.2 of this Schedule “A”;
(h) “Exercise
Price” means the price of US $1.05 per share if exercised on or before September 20, 2016;
(i) “Expiry
Time” means 5:00 p.m. (Pacific Time) on the Expiry Date;
(j) “Expiry
Date” means September 20, 2016.
(k) “herein”,
“hereby” and similar expressions refer to these Terms and Conditions as the same may be amended or modified
from time to time; and the expression “Article” and “Section” followed by a number refer to the specified
Article or Section of these Terms and Conditions;
(l) “Issue
Date” means the issue date of the Warrant shown on the face page of the Warrant Certificate;
(m) “person”
means an individual, corporation, partnership, trustee or any unincorporated organization and words importing persons have a similar
meaning;
(n) “Subscription
Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”;
(o) “United
States” has that meaning ascribed to it in Rule 902(1) of Regulation S;
(p) “Warrant”
means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and
(q) “Warrant
Certificate” means the certificate to which these Terms and Conditions are attached.
1.2 Interpretation
Not Affected by Headings.
(a) The
division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation thereof.
(b) Words
importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and
neuter genders.
1.3 Applicable
Law. The terms hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia
and the laws of Canada, and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Warrant.
ARTICLE 2
ISSUE OF WARRANT
2.1 Issue
of Warrants. That number of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
2.2 Additional
Warrants. Subject to any other written agreement between the Company and the Warrantholder, the Company may at any time and
from time to time undertake further equity or debt financing and may issue additional Common Shares, warrants or grant options
or similar rights to purchase Common Shares to any person.
2.3 Issue
in Substitution for Lost Warrants. If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
(a) the
Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
(b) the
holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction or theft
of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith.
2.4 Warrantholder
Not a Shareholder. The Warrant shall not constitute the holder a shareholder of the Company, nor entitle it to any right or
interest in respect thereof (including but not limited to voting rights) except as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 Method
of Exercise of the Warrant. The right to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior
to the Expiry Time, by the holder delivering to the Company (whether via facsimile or otherwise) a duly completed and executed
subscription form substantially in the form attached hereto as Schedule “B” (the “Subscription Form”)
and a certified check, bank draft, wire transfer or a money order payable to or to the order of the Company, for the Exercise Price
applicable at the time of exercise in respect of the Common Shares subscribed for in lawful money of the United States, to the
Company.
3.2 Effective
Date of Exercise of the Warrant. This Warrant Certificate together with such Subscription Form, certified check, bank draft,
wire transfer or a money order will be deemed to be exercised only upon actual receipt thereof by the Company as set out above
(the “Exercise Date”).
3.3 Effect
of Exercise of the Warrant.
(a) Upon
delivery of the Subscription Form and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and
non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such delivery and such
payment; and
(b) Within
five business days after delivery and payment as aforesaid, the Company shall forthwith cause the issuance to the holder of a certificate
for the Common Shares purchased as aforesaid.
3.4 Subscription
for Less than Entitlement. The holder may subscribe for and purchase a number of Common Shares less than the number which it
is entitled to purchase pursuant to this Warrant Certificate. Execution and delivery of a Subscription Form with respect to less
than all of the shares underlying this Warrant shall have the same effect as cancellation of the original of this Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of shares underlying this Warrant. Execution and delivery
of a Subscription Form for all of the then- remaining shares underlying this Warrant shall have the same effect as cancellation
of the original of this Warrant after delivery of the shares underlying this Warrant in accordance with the terms hereof.
3.5 Expiration
of the Warrant. After the Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and
of no effect.
3.6 Hold
Periods and Legending of Share Certificate. The certificates representing the Common Shares to be issued pursuant to the exercise
of this Warrant shall bear a legend in substantially the following forms:
(a)
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”),
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE
1933 ACT.”
(b)
“Unless permitted under
securities legislation, the holder of the securities shall not trade the securities before January 21, 2014.”
“Without prior written approval
of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this certificate
may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange or otherwise
in Canada or to or for the benefit of a Canadian resident until January 21, 2014.”
ARTICLE
4
ADJUSTMENTS
4.1 Adjustments.
The number of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) in
the event the Company shall:
(i) pay
a dividend in Common Shares or make a distribution in Common Shares;
(ii) subdivide
its outstanding Common Shares;
(iii) combine
its outstanding Common Shares into a smaller number of Common Shares;
or
(iv) issue
by reclassification of its Common Shares other securities of the Company (including any such reclassification in connection with
a consolidation, merger, amalgamation or other combination in which the Company is the surviving corporation);
the number of Common Shares (or other securities) purchasable
upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder shall be entitled to receive
the kind and number of Common Shares or other securities of the Company which it would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of
such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a) shall become effective immediately
after the effective date of such event retroactive to the record date, if any, for such event.
(b) In
case the Company shall issue rights, options or warrants to all or substantially all holders of its outstanding Common Shares,
without any charge to such holders, entitling them (for a period within 45 days after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share which is lower than 95% of the current market price at the record date mentioned
below (as determined in accordance with subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of Common Shares outstanding on the date of issuance of such rights,
options or warrants plus the number of additional Common Shares offered for subscription or purchase, and of which the denominator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the current market
price per Common Share at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In
case the Company shall distribute to all or substantially all holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings or earned surplus and dividends or distributions
referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in
each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall
be the then current market price per Common Share (as determined in accordance with subsection (d) below) on the date of such distribution,
and of which the denominator shall be the then current market price per Common Share less the then fair value (as determined by
the board of directors of the Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options or warrants, or of such convertible or exchangeable securities applicable to one Common
Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to receive such distribution.
In the event
of the distribution by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or
securities convertible or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable
upon the exercise of each Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company,
such subsidiary or both, as the Company shall reasonably determine, the shares or other securities to which such Warrantholder
would have been entitled if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment
as provided in this Section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other
securities shall be made during the term of a Warrant or upon the exercise of a Warrant.
(d) For
the purpose of any computation under subsections (b) and (c) of this Section 4.1, the current market price per Common Share
at any date shall be the weighted average price per Common Share for twenty-five (25) consecutive trading days, commencing
not more than 45 trading days before such date on the stock exchange on which the Common Shares are then traded; provided if
the Common Shares are then traded on more than one stock exchange, then on the stock exchange on which the largest volume of
Common Shares were traded during such twenty-five (25) consecutive trading day period. The weighted average price per Common
Share shall be determined by dividing the aggregate sale price of all Common Shares sold on such exchange or market, as the
case may be, during the said twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes of
this subsection (d), trading day means, with respect to a stock exchange, a day on which such exchange is open for the
transaction of business. Should the Common Shares not be listed on any stock exchange the current market price per Common
Share at any date shall be determined by the board of directors of the Company, acting reasonably.
(e) In
any case in which this Article 4 shall require that any adjustment in the Exercise Price be made effective immediately after a
record date for a specified event, the Company may elect to defer until the occurrence of the event the issuance, to the holder
of any Warrant exercised after that record date, of the Common Shares and other shares of the Company, if any, issuable upon the
exercise of the Warrant over and above the Common Shares and other shares of the Company; provided, however, that the Company shall
deliver to the holder an appropriate instrument evidencing the holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) No
adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the nearest one-hundredth of a share.
(g) Wherever
the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of Common Shares purchasable immediately thereafter.
(h) No
adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need be made under subsections (b) and
(c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants, or convertible or exchangeable securities,
or evidences of indebtedness or assets referred to in those subsections which the Warrantholder would have been entitled to receive
had the Warrants been exercised prior to the happening of such event or the record date with respect thereto.
(i) In
the event that at any time, as a result of an adjustment made pursuant to subsection (a) above, the Warrantholder shall become
entitled to purchase any securities of the Company other than Common Shares, thereafter the number of such other shares
so purchasable upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained
in subsections (a) through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this Article 4
with respect to the Common Shares, shall apply on like terms to any such other securities.
(j) Upon
the expiration of any rights, options, warrants or conversion or exchange privileges, if any thereof shall not have been exercised,
the Exercise Price and the number of Common Shares purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if:
(i) the
only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights; and
(ii) such
Common Shares, if any, were issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised;
provided further, that no such
readjustment shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon
the exercise of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance,
sale or grant of such rights, options, warrants or conversion or exchange rights.
4.2 Voluntary
Adjustment by the Company. Subject to requisite Exchange approval, the Company may, at its option, at any time during the term
of the Warrants, reduce the then current Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
4.3 Notice
of Adjustment. Whenever the number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of
such Common Shares is adjusted, as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment or adjustments.
4.4 No
Adjustment for Dividends. Except as provided in Section 4.1 of this Article 4, no adjustment in respect of any dividends shall
be made during the term of a Warrant or upon the exercise of a Warrant.
4.5 Preservation
of Purchase Rights Upon Merger, Consolidation, etc. In connection with any consolidation of the Company with, or amalgamation
or merger of the Company with or into, another corporation (including, without limitation, pursuant to a “takeover bid”,
“tender offer” or other acquisition of all or substantially all of the outstanding Common Shares) or in case of any
sale, transfer or lease to another corporation of all or substantially all the property of the Company, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter, upon payment of the Exercise Price in effect immediately prior to such action, to purchase upon exercise
of each Warrant the kind and amount of shares and other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, amalgamation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action, and the Warrantholder shall be bound to accept such shares and other securities and property
in lieu of the Common Shares to which it was previously entitled; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property shall be made during the term of a Warrant or
upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Schedule “A”. The provisions of this Article 4 shall similarly
apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 Determination
of Adjustments. If any questions shall at any time arise with respect to the Exercise Price, such question shall be conclusively
determined by the Company’s Auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver,
British Columbia, that the Company may designate and the Warrantholder, acting reasonably, may approve, and who shall have access
to all appropriate records and such determination shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 Reservation
of Common Shares. The Company will reserve and there will remain unissued out of its authorized capital a sufficient number
of Common Shares to satisfy the rights of acquisition provided for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 Company
May Consolidate, etc. on Certain Terms. Nothing herein contained shall prevent any consolidation, amalgamation or merger of
the Company with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the properties
and estates of the Company as an entirety to any corporation lawfully entitled to acquire and operate same, provided, however,
that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially
all the properties and estates of the Company as an entirety shall, simultaneously with such amalgamation, merger, conveyance or
transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed or
observed by the Company.
6.2 Successor
Company Substituted. In case the Company, pursuant to Section 6.1 shall be consolidated, amalgamated or merged with or into
any other corporation or corporations or shall convey or transfer all or substantially all of its properties and estates as an
entirety to any other corporation, the successor corporation formed by such consolidation or amalgamation, or into which the Company
shall have been consolidated, amalgamated or merged or which shall have received a conveyance or transfer as aforesaid, shall succeed
to and be substituted for the Company hereunder and such changes in phraseology and form (but not in substance) may be made in
the Warrant Certificate and herein as may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
7.1 Amendment,
etc. This Warrant Certificate may only be amended and the obligations of the Company and the rights of the Warrantholder under
this Warrant Certificate may be amended, waived, discharged or terminated (either generally or in a particular instance, either
retroactively or prospectively and either for a specified period of time or indefinitely) by a written instrument signed by the
Company and the Warrantholder.
ARTICLE 8
MISCELLANEOUS
8.1 Time.
Time is of the essence of the terms of this Warrant Certificate.
8.2 Notice.
Any notice or other communication to be given in connection with this Warrant Certificate must be in writing and given by
(a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail (including PDF) or facsimile
during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s
next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight courier, freight
prepaid, specifying next business day delivery, with written verification of receipt, to the recipient at the address below
indicated:
If to the Company:
Stellar Biotechnologies, Inc.
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
Attention: Chief Financial Officer
If to the Warrantholder:
To the address of such Holder set forth on the books
and records of the Company.
or such other
address or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending
party in accordance with the provisions of this paragraph 8.2.
8.3 Disposition
of Shares and Warrant.
(a) The
Holder hereby acknowledges that: (i) this Warrant and any Common Shares issuable upon exercise of the Warrant have not been registered
(A) under the 1933 Act on the ground that the issuance of this Warrant is exempt from registration under Section 4(a)(2) of the
1933 Act as not involving any public offering, or (B) under any applicable state securities law because the issuance of this Warrant
does not involve any public offering; and (ii) that the Company’s reliance on the registration exemption under Section 4(a)(2)
of the 1933 Act and under applicable state securities laws is predicated in part on the representations hereby made to the Company
by the Warrantholder. The Warrantholder represents and warrants that he, she or it is acquiring this Warrant and will acquire Common
Shares issuable upon exercise of the Warrant for investment for his, her or its own account, with no present intention of dividing
his, her or its participation with others or reselling or otherwise distributing this Warrant or Common Shares issuable upon exercise
of the Warrant.
(b) The
Warrantholder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer
”) all or any part of this Warrant and/or Common Shares issuable upon exercise of the Warrant unless and until he,
she or it shall have first obtained an opinion, reasonably satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Warrantholder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may
be made without registration under the 1933 Act and without registration or qualification under any United States state law.
(c) If,
at the time of issuance of Common Shares issuable upon exercise of the Warrant, no registration statement is in effect with respect
to such shares under applicable provisions of the 1933 Act and the Common Shares issuable upon exercise of the Warrant may not
be sold pursuant to Rule 144 of the 1933 Act, the Company may, at its election, require that any stock certificate evidencing Common
Shares issuable upon exercise of the Warrant shall bear the legend reading substantially as set forth in paragraph 3.6(a) above.
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Common Shares issuable upon exercise
of the Warrant, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the
shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
8.4 Transfer
of Warrants. Subject to applicable securities legislation (including, but not limited to, the 1933 Act) and the rules, policies,
notices and orders issued by applicable securities regulatory authorities, including the TSX Venture Exchange (or any other stock
exchange on which the Common Shares are listed), the Warrants evidenced hereby (or any portion thereof) may be assigned or transferred
by the holder by duly completing and executing the transfer form attached hereto as Schedule “C”. The rights and obligations
of the Company and Warrantholder shall be binding upon and enure to the benefit of their successors and permitted assigns.
8.5 Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record holder hereof from time to time. The Company may deem and treat the registered
holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the holder, and
for all other purposes, absent actual notice to the contrary.
SCHEDULE “B”
SUBSCRIPTION FORM
TO: |
Stellar Biotechnologies, Inc. |
|
332 E. Scott Street |
|
Port Hueneme, California 93041 |
The undersigned
Holder of the within Warrants hereby subscribes for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES,
INC. (the “Company”) pursuant to the within Warrants at US $1.05 per Common Share on the terms specified
in the said Warrants. This subscription is accompanied by a certified check, bank draft, wire transfer or a money order payable
to or to the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription: (check one):
1. ¨ The
undersigned hereby certifies that (i) it is not a U.S. Person (as defined in Regulation S under the United States Securities Act
of 1933, as amended (the “U.S. Securities Act”), the definition of which includes, but is not limited to, any individual
resident in the United States, any partnership or corporation organized or incorporated under the laws of the United States, and
any estate or trust of which any administrator, executor or trustee is a U.S. Person), (ii) at the time of exercise it is not
within the United States and it did not execute and deliver this subscription form in the United States, and (iii) it is not exercising
any of the Warrants represented by this Warrant Certificate for or on behalf of any U.S. Person or person within the United States.
2. ¨ The
undersigned hereby certifies that (i) it is an Accredited Investor (as defined in Rule 501(a) under the U.S. Securities Act) that
purchased the Warrants represented by this Warrant Certificate directly from the Company for its own account, (ii) it is exercising
the Warrants for its own account, and (iii) it remains an Accredited Investor on the date of exercise of the Warrants.
Note: The Common Shares will not
be registered or delivered to a U.S. address unless the undersigned has checked box 2 above and satisfied the applicable requirements
thereof. A legend will be placed on any Common Shares issued pursuant to box 2 above to the effect that the Common Shares may not
be transferred except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state securities
laws.
The undersigned hereby directs that the Common Shares
be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED this ___________day of______________________, 20___.
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature
of the person appearing on the face of the Warrant Certificate. |
| 2. | If there is more than one holder of the Warrants, all holders
must sign. |
| 3. | In the case of persons signing by a trustee, executor,
administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity,
the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of subscription
are being forwarded by mail, registered mail must be employed. |
Exhibit 4.11
THESE SECURITIES
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR STATE LAWS, AND MAY NOT BE OFFERED FOR
SALE IN THE UNITED STATES OR TO A U.S. PERSON UNLESS EXEMPT THEREUNDER FROM SUCH REGISTATION
STELLAR
BIOTECHNOLOGIES, INC.
(the “Corporation”)
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
PRIVATE
PLACEMENT SUBSCRIPTION AGREEMENT
NON-BROKERED
OFFERING
(US $1.05 units)
INSTRUCTIONS
TO SUBSCRIBER
The Corporation
is offering for sale an aggregate of 11,428,572 Units at a subscription price of US $1.05 per Unit to raise gross proceeds of US
$12,000,000. Each Unit is comprised of one common share and one-half of a transferable share purchase warrant. Each whole warrant
is exercisable into one additional common share at a price of US $1.35 per common share for a period of thirty-six months from
the Closing Date.
All Subscribers
must sign and deliver to Linda Shewchuk, securities paralegal, via fax or email (Fax: 604-259-0339 / Email missy222@telus.net),
with originals to follow in the mail to the Canadian corporate office: Stellar Biotechnologies, Inc. Suite 401, 1231 Barclay Street,
Vancouver, British Columbia, V6E 1H5 (Tel: 604-306-8854 / Toll Free Tel: 888-909-4767):
All Subscribers:
| 1. | A completed and executed copy of this Agreement; |
| 2. | A Schedule II (TSX Personal Information Acknowledgement and Consent); |
| 3. | A certified cheque, bank draft or wire transfer payable to the Corporation; |
Each Subscriber
Must Complete One of the Following:
| 4. | If the Subscriber is an “Accredited Investor” resident anywhere in Canada, but not
in the United States, a completed and signed Schedule III (Accredited Investor Certificate – Canadian Residents Only); |
| 5. | If the Subscriber is a resident of the United States and is an “Accredited Investor”
as that term is defined in Regulation D under the United States Securities Act of 1933, a completed and signed Schedule IV (Accredited
Investor Certificate - United States Residents Only); |
| 6. | If the Subscriber is not an “accredited investor” but is a director, executive officer,
control person of the Corporation, or of an affiliate of the Corporation or founder of the Corporation, or a spouse, parent, grandparent,
brother, sister, child, grandchild, close personal friend or close business associate of a director, executive officer, control
person or founder of the Corporation or a parent, grandparent, brother, sister, child or grandchild of a spouse of a founder of
the Corporation and is not resident in Ontario or Saskatchewan, a completed and signed Schedule V (Family, Friends and Business
Associates Certificate); |
| 7. | If the Subscriber is not an “accredited investor” but is a founder or control person
of the Corporation or a spouse, parent, grandparent, brother, sister, grandchild or child of an executive officer, director or
founder of the Corporation and a resident of Ontario, a completed Schedule VI (Founder, Control Person and Family Certificate –
Ontario Residents Only); |
| 8. | If the Subscriber is not an “accredited investor”, but is a close personal friend or
business associate of a founder, director, executive officer or control person of the issuer, or of an affiliate of the Corporation
and is a resident of Saskatchewan, then complete and sign Schedule VII (“Risk Acknowledgement – Saskatchewan Residents
Only”); |
| 9. | If the Subscriber is not an “accredited investor”, but is buying securities having
an aggregate cost of at least CDN$150,000 and is not a resident of the United States or offshore, then complete and sign Schedule
VIII (“Minimum Investment Amount Certificate – Non United States Residents or Offshore Residents”); |
| 10. | If the Subscriber is not a resident of Canada or the United States of America and did not sign
this subscription agreement in Canada or the United States of America, a completed and signed Schedule IX (Confirmation of Residence
Outside of Canada and the United States of America – Non Resident Certificate); |
Each Subscriber
Who Is Not an Individual Must Complete the Following:
| 11. | If the Subscriber is a portfolio manager or is not an individual (that is, the Subscriber is a
corporation, partnership, trust or entity other than an individual), and does not have a current accurate Form 4C - Corporate Placee
Registration Form on file with the TSX Venture Exchange, a completed and signed Schedule X. |
SUBSCRIPTION AGREEMENT
TO: STELLAR BIOTECHNOLOGIES, INC.
The undersigned (the “Subscriber”)
hereby irrevocably subscribes for and agrees to purchase from STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
that number of units of the Corporation (the “Units”) set out below at a price of US $1.05 per Unit.
Each Unit consists of one common share in the capital of the Corporation (a “Share”) and one-half of a transferable
common share purchase warrant (a “Warrant”). Each whole Warrant shall entitle the holder thereof to acquire
one common share in the capital of the Corporation (a “Warrant Share”) at a price of US $1.35 per Warrant
Share until 5:00 p.m. (Vancouver time) on the date which is thirty-six months following the Closing Date (as defined herein).
The Subscriber agrees to be bound by the terms and conditions set forth in the attached “General Provisions” including
without limitation the representations, warranties and covenants set forth in the applicable schedules attached thereto. The Subscriber
further agrees, without limitation, that the Corporation may rely upon the Subscriber’s representations, warranties and covenants
contained in such documents.
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other
than signatures), as applicable, in the space provided below
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Number of Units x US $1.05 |
(Name of Subscriber) |
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= |
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Account Reference (if applicable): |
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Aggregate Subscription Price: |
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By: __________________________________ |
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(the “Subscription Amount”) |
Authorized Signature |
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(Official Capacity or Title – if the Subscriber is not an individual) |
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Please complete if purchasing as agent or trustee for a principal (beneficial purchaser) (a “Disclosed Principal”) and not purchasing as trustee or agent for accounts fully managed by it. |
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(Name of individual whose signature appears above if different than the name of the subscriber printed above.) |
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(Name of Disclosed Principal) |
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(Subscriber’s Address, including Municipality and Province |
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(Address of Disclosed Principal) |
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(Telephone Number) |
(Email Address) |
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(Account Reference, if applicable) |
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Share Certificate Registration Information: |
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Delivery Instructions as set forth below: |
(indicate exactly how you want to be registered on the share and warrant certificate) |
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(Name) |
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(Name) |
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(Account Reference, if applicable) |
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(Address) |
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(Address, including Postal Code) |
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(Contact Name) (Telephone Number) |
Number and kind of securities of the Corporation held, directly or indirectly, if any: |
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1. State whether Subscriber is an Insider of the Corporation: |
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Yes ¨ No ¨ |
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2. State whether Subscriber is a member of the Pro Group: |
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Yes ¨ No ¨ |
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3. If applicable, state whether the Subscriber has a current Form 4C (Corporate Placee Registration Form) on file with the Exchange |
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Yes ¨ No ¨ |
General
ProvisionS
1.1 In
this Subscription Agreement (including the first page (instruction page), page 3 (cover page), the General Provisions and Schedules
incorporated by reference, the following words have the following meanings unless otherwise indicated:
| (a) | “1933 Act” means the United States Securities
Act of 1933, as amended; |
| (b) | “Accredited Investor” has the same meaning
ascribed to that term in NI 45-106; |
| (c) | “Agent” means Newport Coast Securities, who
has been retained by the Corporation as the exclusive placement agent to solicit, on a “best efforts” basis, subscription
for the Brokered Offering; |
| (d) | “Alberta Act” means the Securities Act
(Alberta), the regulations and rules made thereunder and all administrative policy statements, blanket orders, notices, directions
and rulings issued or adopted by the Alberta Securities Commission, all as amended; |
| (e) | “Applicable Legislation” means the Securities
Legislation Applicable to the Corporation and all legislation incorporated in the definition of this term in other parts of this
Subscription Agreement, together with the regulations and rules made and promulgated under that legislation and all administrative
policy statements, blanket orders and rulings, notices and other administrative directions issued by the Securities Commissions; |
| (f) | “BC Act” means the Securities Act (British
Columbia), the regulations and rules made thereunder and all administrative policy statements, blanket orders, notices, directions
and rulings issued or adopted by the British Columbia Securities Commission, all as amended; |
| (g) | “BCI 72-503” means BC Instrument 72-503 of
the British Columbia Securities Commission entitled “Distribution of Securities Outside British Columbia”; |
| (h) | “Closing” means the completion of the sale
and purchase of the Subscriber’s Units pursuant to this Agreement; |
| (i) | “Closing Date” means the date of completion
of the sale of Units under the Private Placement as may be determined by the Corporation; |
| (j) | “Corporation” means Stellar Biotechnologies,
Inc.; |
| (k) | “Disclosed Principal” has the meaning set
forth on page 3; |
| (l) | “Exchange” means the TSX Venture Exchange; |
| (m) | “General Provisions” means those portions
of this Subscription Agreement headed “General Provisions”; |
| (n) | “International Jurisdictions” has the meaning
ascribed in subparagraph 2.4(a); |
| (o) | “NI 45-102” means National Instrument 45-102
“Resale of Securities” published by the Canadian Securities Administrators; |
| (p) | “NI 45-106” means National Instrument 45-106
“Prospectus and Registration Exemptions” published by the Canadian Securities Administrators; |
| (q) | “Private Placement” means an offering for
sale of an aggregate of 11,428,572 Units by the Corporation, which will include a brokered portion to institutional and accredited
investors (the “Brokered Offering”) and a non-brokered portion (the “Non-brokered Offering”). |
| (r) | “Public Record” means those documents filed
in the website www.SEDAR.com; |
| (s) | “Regulation S” means Regulation S promulgated
under the 1933 Act; |
| (t) | “Regulatory Authorities” means the Securities
Commissions and the Exchange and the securities regulatory authorities in an International Jurisdiction; |
| (u) | “Securities” means the Units, Shares, Warrants
and Warrant Shares; |
| (v) | “Securities Commissions” means the provincial
securities commissions in each of the Offering Jurisdictions; |
| (w) | “Selling Jurisdictions” means all the provinces
of Canada and certain “offshore” jurisdictions outside Canada and the United States, subject to receipt of all necessary
regulatory approvals and compliance with applicable laws; |
| (x) | “Subscription Agreement” means the instruction
page, page 3 (cover page), the Term Sheet, the General Provisions and other Schedules incorporated by reference; and |
| (y) | “Terms” means those portions of this Subscription
Agreement headed “General Provisions” and “Term Sheet”; |
| (z) | “United States” has that meaning ascribed
to it in Rule 902(1) of Regulation S; |
| (aa) | “Units” has the meaning set forth on page
3; |
| (bb) | “U.S. Person” has the meaning ascribed to
it in Rule 902(k) of Regulation S. Without limiting the foregoing, but for greater clarity in this Subscription Agreement, a U.S.
Person includes, subject to the exclusions set forth in Regulation S, (i) any natural person resident in the United States, (ii)
any partnership or corporation organize or incorporated under the laws of the United States, (iii) any estate or trust of which
any executor, administrator, or trustee is a U.S. Person, (iv) any 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
(v) any partnership or corporation organized or incorporated under the laws of any non-U.S. jurisdiction which is 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 U.S. Accredited Investors who are not natural persons, estates or trusts; |
| (cc) | “Warrant Shares” has the meaning set forth
on page 3; and |
| (dd) | “Warrants” has the meaning set forth on page
3. |
1.2 In
this Subscription Agreement, unless otherwise specified, currencies are indicated in United States dollars.
1.3 In
this Subscription Agreement, other words and phrases that are capitalized have the meaning assigned in this Subscription Agreement.
2.1 An
aggregate of 11,428,572 Units are being offered for sale by the Corporation at a subscription price of US $1.05 for gross proceeds
of US $12,000,000. The Private Placement will include a brokered portion to institutional and accredited investors (the “Brokered
Offering”) on a best efforts basis by the Agent pursuant to the terms of an agency agreement, and a non-brokered portion
(the “Non-brokered Offering”).
2.2 By
executing this Agreement, the Subscriber offers to purchase from the Corporation that number of Units set forth on page 3 hereof,
subject to the terms and conditions set out herein. The Subscriber acknowledges that the offer is subject to: (a) the acceptance
of this subscription by the Corporation, (b) delivery by the Subscriber of the documents set out on page 1 (as applicable), (c)
receipt of all necessary regulatory approvals. Upon the Corporation’s acceptance of this subscription, this Subscription
Agreement will constitute an agreement for the purchase by the Subscriber from the Corporation and for the Corporation to issue
and sell to the Subscriber, the number of Units set forth on page 3 hereof on the terms and conditions set forth herein.
2.3 The
Private Placement is not, and under no circumstances is to be construed as, a public offering of the Securities. The Private Placement
is not being made, and this subscription does not constitute an offer to sell or the solicitor of an offer to buy the Securities
in any jurisdiction where, or to any person whom, it is unlawful to make such an offer of solicitation.
3.1 Each
Unit will be comprised of one Share and one-half of a Warrant. The Units will be issued and registered in the name of the Subscriber
or its nominee.
3.2 The
issue of the Units will not restrict or prevent the Corporation from obtaining any other financing or from issuing additional securities
or rights.
4.1 Each
whole Warrant will entitle the holder, on exercise, to purchase one Warrant Share at an exercise price of US $1.35 for a period
of 36 months following the Closing Date. The Warrants will be transferable but will not be listed for trading on any securities
exchange.
4.2 The
certificates representing the Warrants will, among other things, include provisions for the appropriate adjustment in the class,
number and price of the Warrant Shares issued on exercise of the Warrants upon the occurrence of certain events, including any
subdivision, consolidation or reclassification of the Corporation’s common shares, the payment of stock dividends and the
amalgamation of the Corporation.
4.3 The
issue of the Warrants will not restrict or prevent the Corporation from obtaining any other financing, or from issuing additional
securities or rights, during the period within which the Warrants may be exercised.
| 5. | REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER |
5.1 Acknowledgements
concerning offering
The Subscriber acknowledges that:
| (a) | no securities commission or similar regulatory authority has reviewed or passed on the merits of
the Securities; |
| (b) | there is no government or other insurance covering the Securities; |
| (c) | there are risks associated with the purchase of the Securities; |
| (d) | there are restrictions on the Subscriber’s ability to resell the Securities and it is the
responsibility of the Subscriber to find out what those restrictions are and to comply with them before selling the Securities; |
| (e) | the Corporation has advised the Subscriber that the Corporation is relying on an exemption from
the requirements to provide the Subscriber with a prospectus and to sell securities through a person registered to sell securities
under the Applicable Legislation and, as a consequence of acquiring securities pursuant to this exemption, certain protections,
rights and remedies provided by the Applicable Legislation, including statutory rights of rescission or damages, will not be available
to the Subscriber; |
| (f) | no prospectus has been filed by the Corporation with the Commissions in connection with the issuance
of the Securities, the issuance is exempted from the prospectus and registration requirements of the Applicable Legislation and: |
| (i) | the Subscriber is restricted from using most of the civil remedies available under the Applicable
Legislation; |
| (ii) | the Subscriber may not receive information that would otherwise be required to be provided to the
Subscriber under the Applicable Legislation; and |
| (iii) | the Corporation is relieved from certain obligations that would otherwise apply under the Applicable
Legislation; |
| (g) | the Subscriber acknowledges that the Securities have not been registered under the 1933 Act
and may not be offered or sold in the United States unless registered under the 1933 Act and the securities laws of all applicable
states of the United States or an exemption from such registration requirements is available, and that the Corporation has no obligation
or present intention of filing a registration statement under the 1933 Act in respect of the Securities or any of the Securities;
and |
| (h) | The Subscriber acknowledges that the Corporation is required to file a report of trade with all
applicable Regulatory Authorities containing personal information about Subscribers and, if applicable, any Disclosed Principal
of the Securities. This report of trade will include the full name, residential address and telephone number of each Subscriber
or Disclosed Principal, the number and type of Securities purchased, the total purchase price paid for such Securities, the date
of the Closing and the prospectus exemption relied upon under applicable securities laws to complete such purchase. In Ontario,
this information is collected indirectly by the Ontario Securities Commission under the authority granted to it under, and for
the purposes of the administration and enforcement of, the securities legislation in Ontario. Any Subscriber may contact the Administrative
Support Clerk at the OSC at Suite 1903, Box 55, 20 Queen Street West, Toronto, Ontario M5H 3S8 or by telephone at (416) 593-3684
for more information regarding the indirect collection of such information by the Ontario Securities Commission. By completing
this Agreement, the Subscriber authorizes the indirect collection of the information described in this section by all applicable
Regulatory Authorities and consents to the disclose of such information to the public through the filing of a report of trade with
all applicable Regulatory Authorities. |
| 5.2 | Representations by all Subscribers |
The Subscriber represents and warrants
to the Corporation that, as at the Agreement Date and at the Closing:
| (a) | if the Subscriber is purchasing the Securities as principal for its own account, the Subscriber
is purchasing them for investment only and not for the benefit of any other person or for resale, distribution or other disposition
of the Securities; |
| (b) | to the best of the Subscriber’s knowledge, the Securities were not advertised; |
| (c) | no person has made to the Subscriber any written or oral representations: |
| (i) | that any person will resell or repurchase the Securities; |
| (ii) | that any person will refund the purchase price 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 a stock exchange or that application
has been made to list and post any of the Securities for trading on any stock exchange, other than the Shares and Warrant
Shares on the Exchange; |
| (d) | this subscription has not been solicited in any other manner contrary to the Applicable Legislation
or the 1933 Act; |
| (e) | the Subscriber (or others for whom it is contracting hereunder) has been advised to consult its
own legal and tax advisors with respect to applicable resale restrictions and tax considerations, and it (or others for whom it
is contracting hereunder) is solely responsible for compliance with applicable resale restrictions and applicable tax legislation; |
| (f) | the Subscriber has no knowledge of a “material fact” or “material change”
(as those terms are defined in the Applicable Legislation) in the affairs of the Corporation that has not been generally disclosed
to the public, except knowledge of this particular transaction; |
| (g) | the offer made by this subscription is irrevocable (subject to the Subscriber’s right to
withdraw the subscription and to terminate the obligations as set out in this Subscription Agreement) and requires acceptance by
the Corporation and approval of the Exchange; |
| (h) | the Subscriber has the legal capacity and competence to enter into and execute this Subscription
Agreement and to take all actions required pursuant to this Subscription Agreement and, if the Subscriber is a corporation, it
is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by
its directors, shareholders and others have been given to authorize execution of this Subscription Agreement on behalf of the Subscriber; |
| (i) | the Subscriber is not a “control person” of the Corporation as defined in the Applicable
Legislation, will not become a “control person” by virtue of this purchase of any of the Securities, and does not intend
to act in concert with any other person to form a control group of the Corporation; |
| (j) | unless the Subscriber has completed and signed Schedule “IV”, the offer was not made
to the Subscriber when the Subscriber was in the United States and, at the time the Subscriber’s buy order was made to the
Corporation, the Subscriber was outside the United States; |
| (k) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
a U.S. Person; |
| (l) | unless the Subscriber has completed and signed Schedule “IV”, the Subscriber is not
and will not be purchasing Securities for the account or benefit of any U.S. Person; |
| (m) | the entering into of this Subscription Agreement and the transactions contemplated hereby will
not result in the violation of any of the terms and provisions of any law applicable to, or the 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; |
| (n) | this Subscription Agreement has been duly executed and delivered by the Subscriber and constitutes
a legal, valid and binding agreement of the Subscriber enforceable against the Subscriber; |
| (o) | the Subscriber has been independently advised as to the applicable hold period imposed in respect
of the Securities by securities legislation in the jurisdiction in which the Subscriber resides and confirms that no representation
has been made respecting the applicable hold periods for the Securities and is aware of the risks and other characteristics of
the Securities and of the fact that the Subscriber may not be able to resell the Securities except in accordance with the applicable
securities legislation and regulatory policies; |
| (p) | the Subscriber is capable of assessing the proposed investment as a result of the Subscriber’s
financial and business experience or as a result of advice received from a registered person other than the Corporation or any
affiliates of the Corporation; |
| (q) | if required by applicable securities legislation, policy or order or by any securities commission,
stock exchange or other regulatory authority, the Subscriber will execute, deliver, file and otherwise assist the Corporation in
filing, such reports, undertakings and other documents with respect to the issue of the Securities as may be required; |
| (r) | it has relied solely upon publicly available information relating to the Corporation and not upon
any verbal or written representation as to fact or otherwise made by or behalf of the Corporation or the Corporation; and |
| (s) | the funds representing the funds representing the aggregate purchase price which will be advanced
by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds of Crime
(Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and the Subscriber acknowledges that the
Corporation may in future be required by law to disclose the Subscriber’s name and other information relating to this Subscription
Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA. To the best of its
knowledge, none of the subscription funds to be provided by the Subscriber (i) have been or will be derived from or related to
any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction, or (ii)
are being tendered on behalf of a person or entity who has not been identified to the Subscriber. The Subscriber shall promptly
notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide the Corporation
with appropriate information in connection therewith. |
| 5.3 | Representations by residents of the United States: |
The Subscriber represents and warrants
to the Corporation that, as at the Agreement Date and at the Closing:
| (a) | the Subscriber is resident of the United States of America, or is otherwise subject to the securities
laws thereof; |
| (b) | understands the Securities have not and will not be registered under the 1933 Act or the securities
laws of any state of the United States of America in which the Subscriber is resident and the sale contemplated hereby is being
made in reliance on private placement exemptions to the Subscriber pursuant to Rule 506 of the 1933 Act; |
| (c) | the Subscriber, is an Accredited Investor as set out in the completed Schedule IV - U.S. Accredited
Investor Certificate, delivered with this Agreement; and |
| (d) | has made the representations, warranties and covenants (which representations, warranties and covenants
shall survive the Closing) to the Corporation (and acknowledges that the Corporation is relying thereon). |
| 5.4 | Representations by residents outside of Canada and the
United States: |
The Subscriber represents
and warrants to the Corporation that, as of the Agreement Date and at the Closing:
| (a) | is knowledgeable of, or has been independently advised as to the applicable securities laws and
the applicable rules of any securities regulatory authorities having application in the jurisdiction in which the Subscriber is
resident (the “International Jurisdiction”) which would apply to the acquisition of the Subscriber’s Securities,
if any; |
| (b) | is purchasing the Securities pursuant to exemptions from the prospectus and registration requirements
under the applicable securities laws of the International Jurisdiction or, if such is not applicable, the Subscriber is permitted
to purchase the Units under the applicable securities laws of the International Jurisdiction without the need to rely on any exemption; |
| (c) | the applicable securities laws of the International Jurisdiction do not require the Corporation
to make any filings or seek any approvals of any nature whosoever from any regulatory authority of any kind whatsoever in the International
Jurisdiction in connection with the issue and sale or resale of the Securities; and |
| (d) | is complying with the requirements of all applicable securities legislation in the jurisdiction
of its residence and will provide such evidence of compliance with all such matters as the Corporation may request. |
| 5.5 | Reliance, indemnity and notification of changes |
The representations and warranties in this
Subscription Agreement (including the Term Sheet, the General Provisions and the other schedules and appendices incorporated by
reference) are made by the Subscriber with the intent that they be relied upon by the Corporation in determining its suitability
as a Subscriber of Securities, and the Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs,
expenses and damages or liabilities which any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes
to notify the Corporation immediately of any change in any representation, warranty or other information relating to the Subscriber
set forth in this Subscription Agreement (including the Term Sheet, the General Provisions and the other schedules and appendices
incorporated by reference) which takes place prior to the Closing.
| 5.6 | Survival of representations and warranties |
The representations and warranties contained
in this Section will survive the Closing.
| 6. | REPRESENTATIONS AND WARRANTIES OF THE CORPORATION |
| 6.1 | The Corporation represents and warrants to the Subscriber
that, as of the date of this Agreement and at the Closing: |
| (a) | the Corporation and its subsidiaries, if any, are valid and subsisting corporations duly incorporated,
continued or amalgamated and in good standing under the laws of the jurisdictions in which they are incorporated, continued or
amalgamated with respect to all acts necessary to maintain their corporate existence; |
| (b) | the Corporation is the beneficial owner of the properties, business and assets or the interests
in the properties, business and assets referred to in the Public Record, except as disclosed in the Public Record all agreements
by which the Corporation holds an interest in a property, business or asset are in good standing according to their terms, and
there has not been any breach of the applicable laws of the jurisdictions in which such properties, business and assets are situated
which would have a material adverse effect on such properties, business and assets; |
| (c) | the Financial Statements accurately reflect the financial position of the Corporation as at the
date thereof and have been properly prepared in accordance with Canadian Generally Accepted Accounting Principles (GAAP) (up to
and including audited financial statements for the year ended August 31, 2011) and International Financial Reports Standards (interim
financial statements subsequent to August 31, 2011); |
| (d) | no adverse material changes in the financial position of the Corporation have taken place since
the date of the latest balance sheet contained in the Financial Statements, except as has been publicly disclosed; |
| (e) | except for as provided in the Public Record, the Corporation and its subsidiaries are not currently
a party to any actions, suits or proceedings which could materially affect the Corporation’s business or financial condition; |
| (f) | except as disclosed in the Public Record and for options granted in the ordinary course under the
Corporation’s stock option plan, there are no outstanding options, warrants or other securities exercisable to purchase or
convertible or exchangeable into common shares of the Corporation; |
| (g) | the Corporation has complied and will comply with all applicable corporate and securities laws
and regulations in connection with the offer, sale and issuance of the Securities; |
| (h) | the issuance and sale of the Securities by the Corporation does not and will not conflict with
and does not and will not result in a breach of any of the terms, conditions or provisions of its constating documents or any agreement
or instrument to which the Corporation is a party; |
| (i) | this Agreement has been duly authorized by all necessary corporate action on the part of the Corporation
and, subject to acceptance by the Corporation, constitutes a valid obligation of the Corporation legally binding upon it and enforceable
in accordance with its terms; |
| (j) | the issuance of the Securities, at the time of their issue, will have been approved by all requisite
corporate action and any shares comprising part of the Securities, upon issue and delivery, will be validly issued as fully paid
and non-assessable; |
| (k) | the Corporation is a reporting issuer under the BC Act and Alberta Act, its common shares are listed
for trading on the Exchange; and |
| (l) | all consents, approvals, authorizations, orders or agreements of any stock exchanges, securities
commissions or similar authorities in Canada, governmental agencies or regulators, courts or any other persons which may be required
for the issuance of the Securities and the delivery of certificates representing the Securities to the Subscriber, shall be obtained
and in effect prior to or on the date of delivery of such certificates. |
| 6.2 | Survival of representations and warranties |
The representations and warranties contained
in this Section will survive the Closing.
7.1 The
Subscriber acknowledges that, although Securities may be issued to other purchasers under the Private Placement concurrently with
the Closing, there may be other sales of Securities under the Private Placement, some or all of which may close before or after
the Closing.
7.2 On
or before the end of the fifth business day before the Closing Date, the Subscriber will deliver to the Corporation this Subscription
Agreement and all applicable schedules and required forms, duly executed, and payment in full for the total purchase price of the
Securities to be purchased by the Subscriber by certified cheque, bank draft or wire transfer in Canadian dollars payable to “STELLAR
BIOTECHNOLOGIES, INC.”.
7.3 At
Closing or as soon as reasonably possible thereafter, the Corporation will deliver to the Subscriber the certificates representing
the Securities purchased by the Subscriber registered in the name of the Subscriber or its nominee, or as directed by the Subscriber.
8.1 The
Subscriber agrees to sell, assign or transfer the Securities only in accordance with the requirements of applicable securities
laws and any legends placed on the Securities as contemplated by this Subscription Agreement.
8.2 The
Subscriber hereby authorizes the Corporation to correct any minor errors in, or complete any minor information missing from any
part of this Subscription Agreement and any other schedules, forms, certificates or documents executed by the Subscriber and delivered
to the Corporation in connection with the Private Placement.
8.3 The
Corporation may rely on delivery by fax machine of an executed copy of this subscription, and acceptance by the Corporation of
such faxed copy will be equally effective to create a valid and binding agreement between the Subscriber and the Corporation in
accordance with the terms of this Subscription Agreement.
8.4 Without
limitation, this subscription and the transactions contemplated by this Subscription Agreement are conditional upon and subject
to the Corporation’s having obtained such regulatory approval of this subscription and the transactions contemplated by this
Subscription Agreement as the Corporation considers necessary.
8.5 This
Subscription Agreement is not assignable or transferable by the parties hereto without the express written consent of the other
party to this Subscription Agreement.
8.6 Time
is of the essence of this Subscription Agreement and will be calculated in accordance with the provisions of the Interpretation
Act (British Columbia).
8.7 Except
as expressly provided in this Subscription Agreement and in the agreements, instruments and other documents contemplated or provided
for in this Subscription Agreement, this Subscription Agreement contains the entire agreement between the parties with respect
to the Securities and there are no other terms, conditions, representations or warranties whether expressed, implied, oral or
written, by statute, by common law, by the Corporation, or by anyone else.
8.8 The
parties to this Subscription Agreement may amend this Subscription Agreement only in writing.
8.9 This
Subscription Agreement enures to the benefit of and is binding upon the parties to this Subscription Agreement and their successors
and permitted assigns.
8.10 A
party to this Subscription Agreement will give all notices to or other written communications with the other party to this Subscription
Agreement concerning this Subscription Agreement by hand or by registered mail addressed to the address given on page 3.
8.11 This
Subscription Agreement is to be read with all changes in gender or number as required by the context.
8.12 This
Subscription Agreement will be governed by and construed in accordance with the internal laws of British Columbia and the laws
of Canada applicable therein (without reference to its rules governing the choice or conflict of laws), and the parties hereto
irrevocably attorn and submit to the exclusive jurisdiction of the courts of British Columbia with respect to any dispute related
to this Subscription Agreement.
The Corporation hereby accepts the subscription
for Securities as set forth on page 3 of this Subscription Agreement on the terms and conditions contained in the Subscription
Agreement (including all applicable schedules) this _____________________ day of _______________________________, 2013.
|
STELLAR BIOTECHNOLOGIES, INC. |
|
|
|
|
* |
|
|
|
|
|
Per: |
|
|
|
Frank R. Oakes, Chief Executive Officer an Authorized Signatory |
SCHEDULE “I”
TERM SHEET
STELLAR BIOTECHNOLOGIES, INC.
(Capitalized terms have the meanings assigned in the Subscription Agreement.)
THE CORPORATION |
Stellar Biotechnologies,
Inc. |
|
|
PRIVATE PLACEMENT |
The Private Placement consists of 11,428,572
Units. The Private Placement will include a brokered portion to institutional and accredited investors (the “Brokered
Offering”) and a non-brokered portion (the “Non-brokered Offering”). The Corporation
has retained Newport Coast Securities (the “Agent”) as the exclusive placement agent to solicit, on a “best
efforts” basis, subscription for the Brokered Offering. |
|
|
SECURITIES |
Each Unit consists of one previously
unissued common share, as presently constituted (a “Share”) and one-half of a common share purchase warrant (a “Warrant”)
of the Corporation. Each whole Warrant will entitle the holder, on exercise, to purchase one additional common share of the
Corporation (a “Warrant Share”), at a price of US $1.35 per Warrant Share until the close of business
on the day which is thirty-six months from the Closing Date. |
|
|
TOTAL AMOUNT |
US $12,000,000, of which up to $5,000,000
shall be in the Brokered Offering. |
|
|
PRICE |
US $1.05 per Unit. |
|
|
WARRANTS |
The
Warrants will be transferable, subject to compliance with applicable securities legislation.
The
certificates representing the Warrants will, among other things, include provisions for the
appropriate adjustment in the class, number and price of the Warrant Shares issued upon exercise
of the Warrants upon the occurrence of certain events, including any subdivision, consolidation
or reclassification of the Corporation’s common shares, the payment of stock dividends
and the amalgamation of the Corporation.
The
issue of the Warrants will not restrict or prevent the Corporation from obtaining any other
financing, or from issuing additional securities or rights, during the period within which
the Warrants may be exercised. |
|
|
PLACEMENT AGENT FEE |
The Corporation will not pay a placement
agent fee on the Non-brokered Offering. The Corporation will pay a placement agent fee to the Agent at up to the maximum rates
allowed by the TSX Venture Exchange in connection with the Brokered Offering. Such amounts will be paid either in cash or,
at the discretion of the Corporation, the issuance of securities of the Corporation. |
EXEMPTIONS |
The offering will be made in accordance
with the following exemptions from the prospectus requirements:
(a) the
“accredited investor” exemption (section 2.3 of National Instrument 45-106);
(b) the
United States “accredited investor exemption” (section 2.3 of National Instrument 45-106 and Rule 506 of Regulation
D);
(c) the
British Columbia, Alberta, Manitoba, Quebec, Yukon, Nunavut, Northwest Territories and Maritime “family, friends and business
associates” exemption (section 2.5 of National Instrument 45-106);
(d) the
Saskatchewan “family, friends and business associates” exemption (section 2.6 of National Instrument 45-106);
(e) the
Ontario “founder, control person and family exemption” (section 2.7 of National Instrument 45-106);
(f) the
“minimum amount investment” exemption (section 2.10 of National Instrument 45-106); and
(g) the
“offshore exemption” (BC Instrument 72-503). |
|
|
RESALE RESTRICTIONS AND LEGENDS |
The Securities will be subject to a four
month and one day hold period that commences on Closing.
The Subscriber acknowledges that the certificates
representing the Securities will bear the following legends:
“Unless
permitted under securities legislation, the holder of this security must not trade the security before [insert the date that is
four months and a day after the distribution date.]”
“Without
prior written approval of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented
by this certificate may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture
Exchange or otherwise in Canada or to or for the benefit of a Canadian resident until [date that is four months and a day after
the Closing].”
If the Subscriber is a resident of the
United States, then the Subscriber acknowledges that the certificates representing the Securities will bear the additional following
legend or such other legend as legal counsel for the Corporation may advise:
“THE SECURITIES REPRESENTED HEREBY
HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”).
THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER
HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY
SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS
ON STOCK EXCHANGES IN CANADA.” |
|
The Corporation agrees that the Securities will bear no legends other than those set out here. Subscribers are advised to consult with their own legal counsel or advisors to determine the resale restrictions that may be applicable to them. |
|
|
CLOSING DATE |
Payment for the Units is required as soon as possible, and the delivery of the Units is scheduled to occur following receipt of the required approval of the Exchange or on such date as may be designated by the Corporation (the “Closing Date”). Subsequent closings may take place from time to time at later dates as may be determined by the Corporation. |
|
|
USE OF PROCEEDS |
Proceeds of the Private Placement will be used for product research, aquaculture and KLH production development, capital expenditures and working capital. |
|
|
REGULATORY APPROVAL: |
The completion of the Offering is subject to regulatory approval by the TSX Venture Exchange. |
|
|
JURISDICTION OF ORGANIZATION |
The Corporation is a validly existing company under the laws of the British Columbia Business Corporations Act. |
|
|
STOCK EXCHANGE LISTING |
Shares of the Corporation are listed on the TSX Venture Exchange. |
|
|
SECURITIES LEGISLATION APPLICABLE TO THE CORPORATION |
The “Securities Legislation Applicable to the Corporation” is the Securities Act (British Columbia) and the Securities Act (Alberta). |
SCHEDULE II
PERSONAL INFORMATION ACKNOWLEDGEMENT
AND CONSENT
IN THE MATTER OF PERSONAL INFORMATION
PROVIDED TO
STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
TO BE COMPLETED BY ALL SUBSCRIBERS
“Personal Information” means
any information about the undersigned and includes information obtained from the undersigned through written or verbal means between
the undersigned and the Corporation, its agents or representatives.
ACKNOWLEDGEMENT AND CONSENT:
I, the undersigned, have read and understand
the TSX Personal Information Acknowledgement set out below.
I hereby consent to:
| (1) | the disclosure of my Personal Information to the TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
as requested from the Exchange; |
| (2) | the collection, use and disclosure of my Personal Information by the Exchange for the purposes
described below under “TSX Personal Information Acknowledgement” or as otherwise identified by the Exchange, from time
to time; |
| (3) | the disclosure of my Personal Information to the British Columbia Securities Commission and to
any other applicable regulatory authority (collectively referred to as the “Regulatory Authorities”) as requested from
the Regulatory Authorities; and |
| (4) | the collection, use and disclosure of my Personal Information by the Regulatory Authorities for
such purposes as are identified by the Regulatory Authorities from time to time. |
DATED the _____________________ day of_____________________________________,
2013.
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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TSX PERSONAL INFORMATION ACKNOWLEDGEMENT
TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the
Exchange”) collect Personal Information in certain Forms that are submitted by the individual
and/or by an Issuer or Applicant and use it for the following purposes:
| · | to conduct background checks, |
| · | to verify the Personal Information that
has been provided about each individual, |
| · | to consider the suitability of the individual
to act as an officer, director, insider, promoter, investor relations provider or, as applicable, an employee or consultant, of
the Issuer or Applicant, |
| · | to consider the eligibility
of the Issuer or Applicant to list on the Exchange, |
| · | to provide disclosure to market participants
as to the security holdings of directors, officers, other insiders and promoters of the Issuer, or its associates or affiliates,
and includes information as to such individual’s involvement with any other reporting issuers, issuers subject to a cease
trade order or bankruptcy, as well as information respecting penalties, sanctions or personal bankruptcies, to which such individual
has been subject, as well as any conflicts of interest that the individual may have with the Issuer, |
| · | to detect and prevent fraud, |
| · | to conduct enforcement proceedings, and
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| · | to perform other investigations
as required by and to ensure compliance with all applicable rules,
policies, rulings and regulations of the Exchange, securities legislation and other legal and regulatory
requirements governing the conduct and protection of the public markets in Canada. |
As part of
this process, the Exchange also collects additional Personal Information from other sources, including but not limited to, securities
regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services
providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above
can be accomplished.
The Personal Information the Exchange collects
may also be disclosed:
| (a) | to the agencies and organizations in the preceding paragraph, or as otherwise permitted or required
by law, and they may use it in their own investigations for the purposes described above; and |
| (b) | on the Exchange’s website or through printed materials published by or pursuant to the directions
of the Exchange. |
The Exchange may from time
to time use third parties to process information and/or provide other administrative services. In this regard, the Exchange may
share the information with such third party service providers.
SCHEDULE
iiI
Accredited
Investor cERTIFICATE
(Canadian Residents Only)
Capitalized terms not specifically defined
in this Schedule have the meaning ascribed to them in the Subscription Agreement of which this Schedule forms part.
In connection with the execution of the
Subscription Agreement to which this Schedule is attached, the undersigned (the “Subscriber”) represents and
warrants to the Corporation that the Subscriber satisfies one or more of the categories indicated below (please place an “X”
on the appropriate lines):
(Please initial or place an X
or a check mark next to as applicable)
__________ |
(a) |
a Canadian financial institution,
or a Schedule III bank, |
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(b) |
the Business Development Bank of Canada
incorporated under the Business Development Bank of Canada Act (Canada), |
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(c) |
a subsidiary of any person referred to
in paragraphs (a) or (b), if the person owns all of the voting securities of the subsidiary, except the voting securities
required by law to be owned by directors of that subsidiary, |
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__________ |
(d) |
a person registered under the securities
legislation of a jurisdiction of Canada as an adviser or dealer, other than a person registered solely as a limited market
dealer registered under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador), |
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(e) |
an individual registered or formerly registered
under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d), |
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(f) |
the Government of Canada or a jurisdiction
of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada, |
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(g) |
a municipality, public board or commission
in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île
de Montréal or an intermunicipal management board in Québec, |
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(h) |
any national, federal, state, provincial,
territorial or municipal government of or in any foreign jurisdiction, or any agency of that government, |
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(i) |
a
pension fund that is regulated by the Office of the Superintendent of Financial Institutions (Canada), a pension commission
or similar regulatory authority of a jurisdiction of Canada,
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(j) |
an individual who, either alone or with
a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related
liabilities, exceeds $1,000,000, |
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(k) |
an individual whose net income before
taxes exceeded $200,000 in each of the two most recent calendar years or whose net income before taxes combined with that
of a spouse exceeded $300,000 in each of the two most recent calendar years and who, in either case, reasonably expects to
exceed that net income level in the current calendar year, |
__________ |
(l) |
an individual who, either
alone or with a spouse, has net assets of at least $5,000,000, |
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(m) |
a person, other than an individual or
investment fund, that has net assets of at least $5,000,000, as shown on its most recently prepared financial statements, |
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(n) |
an investment fund that distributes
its securities only to |
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(i) |
a person that is or was an accredited investor at the time of distribution, |
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(ii) |
a person that acquires or acquired securities in the circumstances referred to in sections 2.10 [Minimum amount investment], and 2.19 [Additional investment in investment funds], or |
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(iii) |
a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 [Investment fund reinvestment], |
__________ |
(o) |
an investment fund that distributes
or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec,
the securities regulatory authority, has issued a receipt, |
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(p) |
a trust company or trust corporation registered
or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction
of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation,
as the case may be, |
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(q) |
a
person acting on behalf of a fully managed account managed by that person, if that person |
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is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, and |
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in Ontario, is purchasing a security that is not a security of an investment fund; |
__________ |
(r) |
a registered charity under
the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered
under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded, |
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(s) |
an entity organized in a foreign jurisdiction
that is analogous to any of the entities referred to in paragraphs (a) to (d) or paragraph (i) in form and function, |
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(t) |
a person or company in respect of which
all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by
directors, are persons that are accredited investors, |
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(u) |
an
investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an
adviser, or
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(v) |
a person that is recognized or designated
by the securities regulatory authority or, except in Ontario and Québec, the regulator as an accredited investor. |
For the purposes of the foregoing terms
in bold, the following definitions apply:
“bank” means a bank
named in Schedule I or II of the Bank Act (Canada).
“Canadian financial institution”
means
| (a) | an association governed by the Cooperative Credit Associations Act (Canada) or a central
cooperative credit society for which an order has been made under section 473(1) of that Act, or |
| (b) | a bank, loan corporation, trust company, trust corporation, insurance company, treasury
branch, credit union, caisse populaire, financial services cooperative, or league that, in each case, is authorized by an enactment
of Canada or a jurisdiction of Canada to carry on business in Canada or a jurisdiction of Canada. |
“control person” means
any person that holds or is one of a combination of persons, acting in concert by virtue of an agreement, arrangement,
commitment or understanding, that holds
| (a) | a sufficient number of any of the securities of a company so as to affect materially the control
of the company, or |
| (b) | more than 20% of the outstanding voting securities of a company except where there is evidence
showing that the holding of those securities does not affect materially the control of the company. |
“director” means
| (a) | a member of the board of directors of a company or an individual who performs similar functions
for a company, and |
| (b) | with respect to a person that is not a company, an individual who performs functions
similar to those of a director of a company. |
“eligibility adviser” means
| (a) | a person that is registered as an investment dealer and authorized to give advice with respect to
the type of security being distributed, and |
| (b) | in Saskatchewan or Manitoba, also means a lawyer who is a practicing member in good standing with
a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association
of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided
that the lawyer or public accountant must not |
| (i) | have a professional, business or personal relationship with the Corporation, or any of its directors,
executive officers, founders, or control persons, and |
| (ii) | have acted for or been retained personally or otherwise as an employee, executive officer,
director, associate or partner of a person that has acted for or been retained by the Corporation or any of its directors,
executive officers, founders or control persons within the previous 12 months. |
“executive officer” means,
for an Corporation, an individual who is
| (a) | a chair, vice-chair or president, |
| (b) | a vice-president in charge of a principal business unit, division or function including sales,
finance or production, or |
| (d) | performing a policy-making function in respect of the Corporation. |
“financial assets” means
| (c) | a contract of insurance, deposit or an evidence of a deposit that is not a security for the purposes
of securities legislation. |
“founder” means, in
respect of a Corporation, a person who,
| (a) | acting alone, in conjunction, or in concert with one or more persons, directly or indirectly,
takes the initiative in founding, organizing or substantially reorganizing the business of the Corporation, and |
| (b) | at the time of the trade is actively involved in the business of the Corporation. |
“fully managed account”
means an account for of a client for which a person makes the investment decisions if that person has full discretion
to trade in securities for the account without requiring the client’s express consent to a transaction.
“investment fund” has
the a mutual fund or a non-redeemable investment fund, and, for greater certainty n British Columbia, includes an Employee Venture
Capital Corporation and a Venture Capital Corporation.
“non-redeemable investment fund”
means an issuer:
| (a) | whose primary purpose is to invest money provided by
its securityholders; |
| (b) | that does not invest for the purpose of |
| (i) | exercising or seeking to exercise effective control of an issuer other than an issuer which is
a mutual fund or a non-redeemable investment fund, or |
| (ii) | being actively involved in the management of any issuer in which it invests, other than an issuer
that is a mutual fund or a non-redeemable investment fund, and |
| (c) | that is not a mutual fund. |
“person” includes
| (c) | a partnership, trust, fund, and an association, syndicate, organization or other organized group
of persons, whether incorporated or not, and |
| (d) | an individual or other person in that person’s capacity as a trustee, executor, administrator
or personal or other legal representative. |
“related liabilities”
means:
| (a) | liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial
assets; or |
| (b) | liabilities that are secured by financial assets. |
“Schedule III bank” means
an authorized foreign bank named in Schedule III of the Bank Act (Canada);
“spouse” means an individual
who
| (a) | is married to another individual and is not living separate and apart within the meaning of the
Divorce Act (Canada), from the other individual, |
| (b) | is living with another individual in a marriage-like relationship, including a marriage-like relationship
between individuals of the same gender, or |
| (c) | in Alberta, is an individual referred to in paragraph (a) or (b), or is an adult interdependent
partner within the meaning of the Adult Interdependent Relationships Act (Alberta). |
“subsidiary” means an
issuer that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary.
In NI 45-106, an issuer is an “affiliate”
of another issuer if
| (a) | one of them is the subsidiary of the other, or |
| (b) | each of them is controlled by the same person, and |
A person (first person) is considered to “control”
another person (second person) if
| (a) | the first person beneficially owns or directly or indirectly exercises control or direction over
securities of the second person carrying votes which, if exercised, would entitle the first person to elect a majority of the directors
of the second person, unless that first person holds the voting securities only to secure an obligation, |
| (b) | the second person is a partnership, other than a limited partnership, and the first person holds
more than 50% of the interests of the partnership, or |
| (c) | the second person is a limited partnership and the general partner of the limited partnership is
the first person. |
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the ______ day of ___________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IV
ACCREDITED INVESTOR CERTIFICATE
(United States Residents Only)
The Subscriber understands and agrees that
the Securities have not been and will not be registered under the United States Securities Act of 1933, as amended (the
“1933 Act”), or applicable state securities laws, and the Securities are being offered and sold by the Corporation
to the Subscriber in reliance upon Rule 506 of Regulation D and/or Section 4(2) of the 1933 Act.
Capitalized terms used in this Schedule
IV and defined in the Subscription Agreement to which the Schedule IV is attached have the meaning defined in the Subscription
Agreement unless otherwise defined herein.
The undersigned (the “Subscriber”)
represents, warrants and covenants (which representations, warranties and covenants shall survive the Closing) to the Corporation
(and acknowledges that the Corporation is relying thereon) that:
| (a) | it is purchasing the Units either for its own account for investment purposes only or for the account
of a beneficial purchaser for which it is exercising sole investment discretion and that is purchasing the Units for its own account
for investment purposes only and, in any case, not with a view to resale or distribution and, in particular, it has no intention
to distribute either directly or indirectly any of the Units in the United States; provided, however, that the Subscriber may sell
or otherwise dispose of any of the Units pursuant to registration thereof pursuant to the 1933 Act and any applicable state securities
laws or under an exemption from such registration requirements; |
| (b) | it has such knowledge and experience in financial business matters as to be capable of evaluating
the merits and risks of an investment in the Units and it is able to bear the economic risk of loss of its entire investment; |
| (c) | the Corporation has provided to it the opportunity to ask questions and receive answers concerning
the terms and conditions of the offering and it has had access to such information concerning the Corporation as it has considered
necessary or appropriate in connection with its investment decision to acquire the Units; |
| (d) | it, and each beneficial purchaser for whom it is acting, if any, satisfies one or more of the categories
of “accredited investor” as defined in Rule 501(a) of Regulation D of the 1933 Act indicated below (the Subscriber
must initial or place an X or a check mark on the appropriate line(s) for itself and for each beneficial purchaser on behalf
of whom it is purchasing, if any): |
____________ |
Category 1. |
A bank, as defined in Section 3(a)(2) of the 1933 Act, whether acting in its individual or fiduciary capacity; or |
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Category 2. |
A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the 1933 Act, whether acting in its individual or fiduciary capacity; or |
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Category 3. |
A broker or dealer registered pursuant to Section 15 of the United States Securities Exchange Act of 1934; or |
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Category 4. |
An insurance company as defined in Section 2(13) of the 1933 Act; or |
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Category 5. |
An investment company registered under the United States Investment Company Act of 1940; or |
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Category 6. |
A business development company as defined in Section 2(a)(48) of the United States Investment Company Act of 1940; or |
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Category 7. |
A small business investment company licensed by the U.S. Small Business Administration under Section 301 (c) or (d) of the United States Small Business Investment Act of 1958; or |
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Category 8. |
A plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with total assets in excess of US $5,000,000; or |
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Category 9. |
An employee benefit plan within the meaning of the United States Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment adviser, or an employee benefit plan with total assets in excess of US $5,000,000 or, if a self-directed plan, with investment decisions made solely by persons who are accredited investors; or |
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Category 10. |
A private business development company as defined in Section 202(a)(22) of the United States Investment Advisers Act of 1940; or |
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Category 11. |
An organization described in Section 501(c)(3) of the United States Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of US $5,000,000; or |
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Category 12. |
Any director or executive officer of the Corporation; or |
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Category 13. |
A natural person whose individual net worth, or joint net worth with that person’s spouse, excluding the value of his or her primary residence net of any mortgage obligation secured by the property, at the date hereof exceeds US $1,000,000. For purposes of this calculation, if the mortgage or other indebtedness secured by the Subscriber’s primary residence exceeds its value, and the mortgagee or other lender has recourse to the Subscriber personally for any deficiency, the amount of any excess must be considered a liability and deducted from the Subscriber’s net worth; or |
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Category 14. |
A natural person who had an individual income in excess of US $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of US $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or |
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Category 15. |
A trust, with total assets in excess of US $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the 1933 Act; or |
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Category 16. |
Any entity in which all of the equity owners meet the requirements of at least one of the above categories (if this alternative is checked, you must identify each equity owner and provide statements by each demonstrating how each qualifies as an Accredited Investor); |
| (e) | it understands that if it decides to offer, sell or otherwise transfer the Securities, it will
not offer, sell or otherwise transfer any of such securities directly or indirectly, unless: |
| (i) | the transfer is to the Corporation; |
| (ii) | the transfer is made outside the United States in a transaction meeting the requirements of Rule
904 of Regulation S under the 1933 Act and in compliance with applicable local laws and regulations; |
| (iii) | the transfer is made in compliance with the exemption from the registration requirements under
the 1933 Act provided by Rule 144 or Rule 144A thereunder, if available, and in accordance with applicable state securities laws;
or |
| (iv) | the Securities are transferred in a transaction that does not require registration under the 1933 Act
or any applicable state laws and regulations governing the offer and sale of securities; |
and it has prior to such sale furnished
to the Corporation an opinion of counsel of recognized standing or other evidence of exemption, in either case reasonably satisfactory
to the Corporation;
| (f) | it understands that upon the issuance thereof, and until such time as the same is no longer required
under the applicable requirements of the 1933 Act or applicable U.S. state laws and regulations, the certificates representing
the Securities, and all securities issued in exchange therefor or in substitution thereof, will bear a legend in substantially
the following form: |
“THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”).
THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES
IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER
HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY
SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS
ON STOCK EXCHANGES IN CANADA.”
provided, that if any of the Securities
are being sold under clause (B) above, at a time when the Corporation is a “foreign issuer” as defined in Rule 902
under the 1933 Act, the legend set forth above may be removed by providing a declaration to the Corporation and its transfer agent
in such form as the Corporation may from time to time prescribe, together with such other evidence, including an opinion of counsel
in form satisfactory to the Corporation and its transfer agent, as the Corporation and its transfer agent may from time to time
prescribe, to the effect that the sale of such securities is being made in compliance with Rule 904 of Regulation S under the 1933
Act;
provided further, that if any of
the Securities are being sold pursuant to Rule 144 of the 1933 Act, the legend may be removed by delivery to the Corporation’s
transfer agent of an opinion satisfactory to the Corporation to the effect that the legend is no longer required under applicable
requirements of the 1933 Act or state securities laws;
| (g) | it consents to the Corporation making a notation on its records or giving instruction to the registrar
and transfer agent of the Corporation in order to implement the restrictions on transfer set forth and described herein; |
| (h) | it understands and acknowledges that the Warrants may not be exercised in the United States or
by or on behalf of a U.S. Person unless an exemption is available from the registration requirements of the 1933 Act and the securities
laws of all applicable states and the holder has furnished an opinion of counsel of recognized standing in form and substance satisfactory
to the Corporation to such effect; provided that a Subscriber who purchased Units pursuant to the Offering will not be required
to deliver an opinion of counsel in connection with the due exercise of the Warrants that comprise part of the Units if the Subscriber
delivers to the Corporation a warrant exercise form containing representations, warranties and agreements substantially in a form
acceptable to the Corporation; |
| (i) | it understands and acknowledges that the Corporation has no obligation or present intention of
filing with the United States Securities and Exchange Commission or with any state securities administrator any registration statement
in respect of resale of the Securities in the United States; |
| (j) | the office or other address of the Subscriber at which the Subscriber received and accepted the
offer to purchase the Units is the address listed as the “Subscriber’s Address” on the signature page of the
Subscription Agreement; |
| (k) | it acknowledges that it has not purchased the Units as a result of any form of general solicitation
or general advertising (as such terms are used in Regulation D under the 1933 Act), including, but not limited to, any 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; |
| (l) | it understands and agrees that there may be material tax consequences to the Subscriber of an acquisition,
holding, exercise or disposition of the Securities. The Corporation does not give any opinion or makes any representation with
respect to the tax consequences to the Subscriber under United States, state, local or foreign tax law of the Subscriber’s
acquisition, holding, exercise or disposition of such securities, and the Subscriber acknowledges that the undersigned is solely
responsible for determining the tax consequences to its investment. In particular, no determination has been made whether the Corporation
will be a “passive foreign investment company” within the meaning of Section 1297 of the United States Internal Revenue
Code; |
| (m) | it understands and acknowledges that the Corporation (i) is not obligated to remain a “foreign
issuer” within the meaning of Regulation S, (ii) may not, at the time the Securities are resold by it or at any other time,
be a foreign issuer, and (iii) may engage in one or more transactions which could cause the Corporation not to be a foreign issuer,
and if the Corporation is not a foreign issuer at the time of sale or transfer of the Securities pursuant to Rule 904 of Regulation
, the certificates representing the Securities may continue to bear the legend described here; |
| (n) | it understands and agrees that the financial statements of the Corporation have been prepared in
accordance with Canadian generally accepted accounting principles, which differ in some respects from United States generally accepted
accounting principles, and thus may not be comparable to financial statements of United States companies; and |
| (o) | it understands and agrees that the certificates representing the Warrants, and all certificates
issued in exchange therefor or in substitution thereof, shall bear the following legend, or such other legend, as may be advised
by legal counsel for the Corporation: |
“THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. “UNITED STATES” AND “U.S. PERSON” ARE AS DEFINED BY REGULATION
S UNDER THE SECURITIES ACT.”
| (p) | that the funds representing the subscription funds which will be advanced by the Subscriber to
the Corporation hereunder will not represent proceeds of crime for the purposes of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act the “PATRIOT Act”) and the Subscriber acknowledges
that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating
to the Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PATRIOT
Act. No portion of the subscription funds to be provided by the Subscriber (i) has been or will be derived from or related to any
activity that is deemed criminal under the laws of the United States of America, or any other jurisdiction, or (ii) is being tendered
on behalf of a person or entity who has not been identified to or by the Subscriber, and it shall promptly notify the Corporation
if the Subscriber discovers that any of such representations ceases to be true and provide the Corporation with appropriate information
in connection therewith. |
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the ______ day of ___________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE
v
CONFIRMATION OF RELATIONSHIP
family,
friends and business associates CERTIFICATE
(British Columbia, Alberta, Manitoba,
Quebec, Yukon, Nunavut, Northwest Territories and Maritime Residents Only)
The Subscriber represents and warrants
to the Corporation that the Subscriber is buying the Securities as principal and that the Subscriber has read the following definitions
from National Instrument 45-106 Prospectus and Registration Exemptions and certifies that the Subscriber has the relationship(s)
to the Corporation or its directors, executive officers, control persons or founders by virtue of the
Subscriber being:
(Please initial or place an X or a place
a check mark next to one or more as applicable)
___________ |
(a) |
I am a director, executive
officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(b) |
I am a spouse, parent, grandparent,
brother, sister, child or grandchild of a director, executive officer or control person of the Corporation, or of an affiliate
of the Corporation. |
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(c) |
I am a parent, grandparent, brother,
sister, child or grandchild of the spouse of a director, executive officer or control person of the Corporation, or of an
affiliate of the Corporation. |
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(d) |
I am a close personal friend of a director,
executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(e) |
I am a close business associate of
a director, executive officer or control person of the Corporation, or of an affiliate of the Corporation. |
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(f) |
I am a founder of the Corporation or
a spouse, parent, grandparent, brother, sister, child, grandchild or close personal close business associate of a founder
of the Corporation. |
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(g) |
I am a parent, grandparent, brother,
sister, child or grandchild of a spouse of a founder of the Corporation. |
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(h) |
I am a person of which a majority of
the voting securities are beneficially owned by, or a majority of the directors are, persons described in the categories (a)
to (g) above. |
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(i) |
I am a trust or estate of which all
of the beneficiaries or a majority of the trustees or executors are persons described in the categories (a) to (g) above. |
and if any of (b) through (i) is initialled
or marked, the name of the director, executive officer, control person or founder is:
____________________________________________________________
(Print name of director, executive officer,
control person or founder)
For the purposes of the foregoing terms
in bold, the definitions in Schedule III and the following guidance apply:
“close business associate”
is an individual who has had sufficient prior business dealings with the director, executive officer, founder
or control person of the Corporation to be in a position to assess their capabilities and trustworthiness.
An individual is not a close business associate
solely because the individual is (a) a member of the same organization, association or religious group, or (b) a client, customer,
former client or former customer.
The relationship between the individual
and the director, executive officer, founder or control person must be direct. For example, the exemption
is not available for a close business associate of a close business associate of a director, executive officer, founder
or control person.
“close personal friend”
is an individual who known the director, executive officer, founder or control person well enough and
has known them for a sufficient period of time to be in a position to assess their capabilities and trustworthiness. The term “close
personal friend” can include a family member who is not already specifically identified in the exemption above.
An individual is not a close personal friend
solely because the individual is a relative, a member of the same organization, association or religious group or a current or
former client or customer.
The relationship between the individual
and the director, executive officer, founder or control person must be direct. For example, the exemption
is not available for a close personal friend of a close personal friend of the director, executive officer, founder
or control person.
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the ______ day of ___________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE VI
conFIRMATION
OF RELATIONSHIP
founder,
control person and family certificate
(Ontario Residents Only)
The Subscriber represents and warrants
to the Corporation that the Subscriber has read the following definitions from National Instrument 45-106 Prospectus and Registration
Exemptions and certifies that the Subscriber has the relationship(s) to the Corporation or its directors, executive
officers, control persons or founders by virtue of the Subscriber being:
(initial or place an X or place a check
mark next to one or more as applicable)
_________ |
(a) |
a founder of the
Corporation; |
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_________ |
(b) |
an affiliate of a founder
of the Corporation; |
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_________ |
(c) |
a spouse, parent, brother,
sister, grandparent, grandchild or child of an executive officer, director or founder of the Corporation; or |
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_________ |
(d) |
a
control person of the Corporation. |
and if (c) is initialled or marked, the
director, executive officer or founder is:
____________________________________________________
(Print name of director, executive officer
or founder)
For the purposes of the foregoing terms
in bold, the definitions in Schedule III apply.
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the ______ day of ___________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE
vII
Risk
Acknowledgement
Saskatchewan
Close Personal Friends and Close Business Associates
(Saskatchewan Residents Only)
WARNING
I acknowledge that this is a risky investment:
| · | I am investing entirely at my own risk. |
| · | No securities regulatory authority or regulator has evaluated or endorsed the merits of these securities. |
| · | The person selling me these securities is not registered
with a securities regulatory authority or regulator and has no duty to tell me whether this investment is suitable for me. [Instruction:
Delete if sold by registrant] |
| · | I will not be able to sell these securities for 4 months. |
| · | I could lose all the money I invest. |
| · | I do not have a 2-day right to cancel my purchase of these securities or the statutory rights of
action for misrepresentation I would have if I were purchasing the securities under a prospectus. I do have a 2-day right to cancel
my purchase of these securities if I receive an amended offering document. |
I am investing $____________ [total consideration]
in total; this includes any amount I am obliged to pay in future.
I am a close personal friend or
close business associate of ______________________ [state name], who is a ______________________ [state title - founder,
director, executive officer or control person] of Stellar Biotechnologies, Inc.
I acknowledge that I am purchasing based
on my close relationship with ______________________ [state name of founder, director, executive officer or control person] whom I know well
enough and for a sufficient period of time to be able to assess her/his capabilities and trustworthiness.
I acknowledge that this is a risky investment
and that I could lose all the money I invest.
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Signature of Subscriber |
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Print name of Subscriber |
Sign 2 copies of this document. Keep one
copy for your records.
You are buying Exempt Market Securities
They are called exempt market securities
because two parts of securities law do not apply to them. If an issuer wants to sell exempt market securities to you:
| · | the issuer does not have to give you a prospectus (a document that describes the investment in
detail and gives you some legal protections), and |
| · | the securities do not have to be sold by an investment dealer registered with a securities regulatory
authority or regulator. |
There are restrictions on your ability
to resell exempt market securities. Exempt market securities are more risky than other securities.
You may not receive any written information
about the issuer or its business
If you have any questions about the issuer
or its business, ask for written clarification before you purchase the securities. You should consult your own professional advisers
before investing in the securities.
You will not receive advice [Instruction:
Delete if sold by registrant]
Unless you consult your own professional
advisers, you will not get professional advice about whether the investment is suitable for you.
For more information on the exempt market,
refer to the Saskatchewan Financial Services Commission’s website at http://www.sfsc.gov.sk.ca.
[Instruction: The Subscriber must sign
2 copies of this form. The Subscriber and the issuer must each receive a signed copy.]
schedule
vIII
MINIMUM INVESTMENT AMOUNT CERTIFICATE
(Non United States Residents or Offshore
Residents)
The Subscriber represents and warrants
to the Corporation that:
| (a) | the Subscriber is buying the Securities as principal; |
| (b) | the Securities have an acquisition cost to the Subscriber of not less than CDN$150,000 paid in cash
at the time of the distribution; and |
| (c) | the distribution is of a security of a single issuer. |
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the ______ day of ___________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE IX
CONFIRMATION OF RESIDENCE OUTSIDE
CANADA
AND THE UNITED STATES OF AMERICA
NON RESIDENT CERTIFICATE
The Subscriber represents and warrants
and certifies to the Corporation that the Subscriber:
| (a) | is not a resident of Canada; |
| (b) | did not sign this Subscription Agreement in Canada; |
| (c) | is not a resident of the United States of America; |
| (d) | is not U.S. Person, at that term is defined in Regulation S under the United States Securities
Act of 1933; |
| (e) | did not sign this Subscription Agreement in the United States of America; |
| (f) | has fully read this Subscription Agreement, and without restricting the foregoing, has read Section
5 of the General Provisions to this Subscription Agreement. |
The foregoing representations and warranties
are true an accurate as of the date of this Certificate and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate
as of the _______________ day of _________________________, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
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SCHEDULE X |
|
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
This Form will remain on file with the
Exchange and must be completed if required under section 4(b) of Part II of Form 4B. The corporation, trust, portfolio manager
or other entity (the “Placee”) need only file it on one time basis, and it will be referenced for all subsequent Private
Placements in which it participates. If any of the information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed Issuers. If as a result of the Private Placement, the Placee
becomes an Insider of the Issuer, Insiders of the Placee are reminded that they must file a Personal Information Form (2A) or,
if applicable, Declarations, with the Exchange.
1. |
Placee Information: |
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(a) Name: ________________________________________________________________ |
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(b) Complete Address: ______________________________________________________ |
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(c) Jurisdiction of Incorporation or Creation: _____________________________________ |
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2. |
(a) |
Is the Placee purchasing securities as a portfolio manager: (Yes/No)? |
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(b) |
Is the Placee carrying on business as a portfolio manager outside of Canada: (Yes/No)? __________ |
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3. |
If the answer to 2(b) above was “Yes”, the undersigned certifies that: |
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(a) |
it is purchasing securities of an Issuer on behalf of managed accounts for which it is making the investment decision to purchase the securities and has full discretion to purchase or sell securities for such accounts without requiring the client’s express consent to a transaction; |
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(b) |
it carries on the business of managing the investment portfolios of clients through discretionary authority granted by those clients (a “portfolio manager” business) in ____________________ [jurisdiction], and it is permitted by law to carry on a portfolio manager business in that jurisdiction; |
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(c) |
it was not created solely or primarily for the purpose of purchasing securities of the Issuer; |
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(d) |
the total asset value of the investment portfolios it manages on behalf of clients is not less than $20,000,000; and |
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(e) |
it has no reasonable grounds to believe, that any of the directors, senior officers and other insiders of the Issuer, and the persons that carry on investor relations activities for the Issuer has a beneficial interest in any of the managed accounts for which it is purchasing. |
4. |
If the answer to 2(a). above was “No”, please provide the names and addresses of Control Persons of the Placee: |
Name * |
City |
Province or State |
Country |
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* If the Control Person is not
an individual, provide the name of the individual that makes the investment decisions on behalf of the Control Person.
5. |
Acknowledgement - Personal Information and Securities Laws |
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(a) |
“Personal Information” means any information about an identifiable individual, and includes information contained in sections 1, 2 and 4, as applicable, of this Form. |
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The undersigned hereby acknowledges and agrees that it has obtained the express written consent of each individual to: |
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(i) |
the disclosure of Personal Information by the undersigned to the Exchange (as defined in Appendix 6B) pursuant to this Form; and |
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(ii) |
the collection, use and disclosure of Personal Information by the Exchange for the purposes described in Appendix 6B or as otherwise identified by the Exchange, from time to time. |
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(b) |
The undersigned acknowledges that it is bound by the provisions of applicable Securities Law, including provisions concerning the filing of insider reports and reports of acquisitions. |
Dated and certified (if applicable), acknowledged
and agreed, at__________________________ on_______________________________, 2013.
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(Name of Subscriber - please print) |
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X |
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(Authorized Signature) |
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(Official Capacity - please print) |
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(Please print name of individual whose signature appears above) |
THIS IS NOT A PUBLIC DOCUMENT
Exhibit 4.12
THESE SECURITIES HAVE NOT BEEN REGISTERED
WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (“1933
ACT”), OR UNITED STATES STATE LAWS, AND ARE BEING OFFERED FOR SALE AND SOLD IN THE UNITED STATES OR TO A U.S. PERSON IN RELIANCE
ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND SUCH LAWS. THE SECURITIES OFFERED IN THE UNITED STATES OR
TO A U.S. PERSON ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED
UNDER THE 1933 ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED,
HYPOTHECATED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR AN OPINION OF COUNSEL ACCEPTABLE
TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
STELLAR BIOTECHNOLOGIES, INC.
(THE “CORPORATION”)
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(US $1.05 PER UNIT)
INSTRUCTIONS TO SUBSCRIBER
The Corporation is offering for sale an
aggregate of 11,428,572 Units at a subscription price of US $1.05 per Unit to raise gross proceeds of US $12,000,000. Each Unit
is comprised of one common share and one-half of a share purchase warrant. The warrants are only exercisable for full common shares
at an exercise price of US $1.35 per common share for a period of thirty-six months from the initial Closing Date (as defined below).
All Subscribers must sign and deliver
to Tennille Duncan at Newport Coast Securities, Inc., via fax or email (Fax: 212 385-1715 / Email: tduncan@ncsecurities.com), with
originals to follow in the mail to: 76 Beaver Street, 10th Floor, New York, NY 10005:
All Subscribers:
| 1. | A completed and executed copy of this Subscription Agreement
(Page 3); |
| 2. | A Schedule I (TSX Personal Information Acknowledgement
and Consent); |
| 3. | If
the Subscriber is a resident of the United States or is a United States Accredited Investor (as defined below), a completed and
signed Schedule II (Accredited Investor Questionnaire— Resident
of the United States or United States Accredited Investor); |
Each Subscriber Who Is Not an Individual that will Hold More
than 5% of the Issued and Outstanding Shares of the Corporation Must Complete the Following:
| 4. | If the Subscriber is a portfolio manager or is not an
individual (that is, the Subscriber is a corporation, partnership, trust or entity other than an individual), and does not have
a current accurate Form 4C - Corporate Placee Registration Form on file with the TSX Venture Exchange, a completed and signed
Schedule III. |
Each Subscriber Must Pay for the Units ($1.05 per Unit) as
follows:
Wire Transfers:
Signature Bank as Escrow Agent for Stellar Biotechnologies,
Inc.
Signature Bank, 261 Madison Avenue, NY, NY 10016
ABA No. 026013576 for credit to
Signature Bank
as Escrow Agent for Stellar Biotechnologies, Inc.
Account No. 1501985186
FBO: (investor name)
(Investor Address)
Payment by Cashier’s Check:
Payable to “Signature Bank as Escrow Agent for
Stellar Biotechnologies, Inc.”
and deliver to
Signature Bank
261 Madison Avenue
New York, NY 10016
Attn.: Arlene Eliades
SUBSCRIPTION AGREEMENT
| TO: | STELLAR BIOTECHNOLOGIES, INC. |
The undersigned (the “Subscriber”)
hereby irrevocably subscribes for and agrees to purchase from STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
that number of units of the Corporation (the “Units”) set out below at a price of US $1.05 per Unit.
Each Unit consists of one common share of the Corporation (a “Share”) and one-half of a common share purchase
warrant, in substantially the form attached to this document as Exhibit 2 (a “Warrant”). Each whole Warrant
shall entitle the holder thereof to acquire one common share in the capital of the Corporation (a “Warrant Share”)
at a price of US $1.35 per Warrant Share until 5:00 p.m. (Vancouver time) on the date which is thirty-six months following
the Closing Date (as defined herein). The Subscriber agrees to be bound by the terms and conditions set forth in the attached “General
Provisions” including without limitation the representations, warranties and covenants set forth in the applicable exhibits
and schedules attached hereto. The Subscriber further agrees, without limitation, that the Corporation may rely upon the Subscriber’s
representations, warranties and covenants contained in such documents.
SUBSCRIPTION AND SUBSCRIBER INFORMATION
Please print all information (other than
signatures), as applicable, in the space provided below
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Number of Units x
US $1.05 |
(Name of Subscriber) |
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= |
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Account Reference (if applicable): |
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Aggregate Subscription Price: |
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By: |
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(the “Subscription Amount”) |
Authorized Signature |
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(Official Capacity or Title – if the Subscriber is not an individual) |
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Delivery Instructions as set forth below: |
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(Name of individual whose signature appears above if different than the name of the subscriber printed above.) |
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(Name) |
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(Subscriber’s Address, including Municipality, Province/State, Country) |
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(Account Reference, if applicable) |
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(Address) |
(Telephone Number) |
(Fax Number) |
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(Contact Name) |
(Telephone Number) |
(Email Address) |
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1. State whether Subscriber is an Insider of the Corporation: |
Share Certificate Registration Information: |
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(indicate exactly how you want to be registered on the share and warrant certificate) |
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Yes ¨ No ¨ |
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2. State whether Subscriber is a member of the Pro Group: |
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(Name) |
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Yes ¨ No ¨ |
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3. If applicable, state whether the Subscriber has a current Form 4C (Corporate Placee Registration Form) on file with the Exchange |
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(Address, including Postal Code) |
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Yes ¨ No ¨ |
Number and kind of securities of the Corporation held, directly or indirectly, if any: |
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GENERAL PROVISIONS
1.1 In
this Subscription Agreement (including the first page (instruction page), page 3 (cover page), the General Provisions, exhibits
and Schedules incorporated by reference, the following words have the following meanings unless otherwise indicated:
| (a) | “1933 Act” means the United States Securities
Act of 1933, as amended; |
| (b) | “1934 Act” means the United States Securities
Exchange Act of 1934; |
| (c) | “1940 Act” means the United States Investment
Company Act of 1940; |
| (d) | “Agent” means Newport Coast Securities, who
has been retained by the Corporation as the exclusive placement agent to solicit, on a “best efforts” basis, subscriptions
solely for the Brokered Offering; |
| (e) | “Alberta Act” means the Securities Act (Alberta),
the regulations and rules made thereunder and all administrative policy statements, blanket orders, notices, directions and rulings
issued or adopted by the Alberta Securities Commission, all as amended; |
| (f) | “Applicable Canadian Legislation” means the
Securities Act (British Columbia) and the Securities Act (Alberta) and all legislation incorporated in the definition of this
term in other parts of this Subscription Agreement, together with the regulations and rules made and promulgated under that legislation
and all administrative policy statements, blanket orders and rulings, notices and other administrative directions issued by the
Canadian Securities Commissions; |
| (g) | “Applicable Legislation” means the Securities
Legislation Applicable to the Corporation (as defined herein and in the Term Sheet) and all legislation incorporated in the definition
of this term in other parts of this Subscription Agreement, together with the regulations and rules made and promulgated under
that legislation and all administrative policy statements, blanket orders and rulings, notices and other administrative directions
issued by the Securities Commissions; |
| (h) | “BC Act” means the Securities Act (British
Columbia), the regulations and rules made thereunder and all administrative policy statements, blanket orders, notices, directions
and rulings issued or adopted by the British Columbia Securities Commission, all as amended; |
| (i) | “BCI 72-503” means BC Instrument 72-503 of
the British Columbia Securities Commission entitled “Distribution of Securities Outside British Columbia”; |
| (j) | “Canadian Accredited Investor” is an accredited
investor as defined in NI 45-106; |
| (k) | “Canadian Securities Commissions” means the
provincial securities commissions in each of the provinces of Canada; |
| (l) | “Closing” means the completion of the sale
and purchase of the Subscriber’s Units pursuant to this Agreement; |
| (m) | “Closing Date” means the date of completion
of the sale of Units under the Private Placement as may be determined by the Corporation; |
| (n) | “Corporation” means Stellar Biotechnologies,
Inc.; |
| (o) | “Dollars” or use of signs “US $”
or “$” means only lawful money of the United States and not any other currency, regardless of whether that currency
uses the “$” sign to denote its currency or may be readily converted into lawful money of the United States; |
| (p) | “Exchange” means the TSX Venture Exchange; |
| (q) | “Financial Statements” means the Corporation’s
Consolidated audited financial statements as of August 31, 2012 and for the fiscal year ended August 31, 2012 and its unaudited
financial statements (including balance sheet, income statement and statement of cash flows) as of May 31, 2013 and for the 9-month
period ended May 31, 2013. |
| (r) | “General Provisions” means those portions
of this Subscription Agreement headed “General Provisions”; |
| (s) | “International Jurisdictions” has the meaning
ascribed in subparagraph 5.4(a); |
| (t) | “NI 45-102” means National Instrument 45-102
“Resale of Securities” published by the Canadian Securities Administrators; |
| (u) | “NI 45-106” means National Instrument 45-106
“Prospectus and Registration Exemptions” published by the Canadian Securities Administrators; |
| (v) | “Offering Jurisdictions” means all the provinces
of Canada, certain states in the United States, and certain “offshore” jurisdictions outside Canada and the United
States, subject to receipt of all necessary regulatory approvals and compliance with applicable laws; |
| (w) | “Person” means any individual, corporation,
partnership, trust, limited liability company, association or other entity. |
| (x) | “Private Placement” means an offering for
sale of an aggregate of 11,428,572 Units by the Corporation, which will include a brokered portion to institutional and accredited
investors (the “Brokered Offering”) and a non-brokered portion (the “Non-brokered Offering”). |
| (y) | “Public Record” means those documents filed
in the website www.SEDAR.com; |
| (z) | “Regulation D” means Regulation D promulgated
under the 1933 Act; |
| (aa) | “Regulation S” means Regulation S promulgated
under the 1933 Act; |
| (bb) | “Regulatory Authorities” means the Securities Commissions and the Exchange and the
securities regulatory authorities in an International Jurisdiction; |
| (cc) | “SEC” means the United States Securities
and Exchange Commission; |
| (dd) | “Securities” means the Units, Shares, Warrants
and Warrant Shares; |
| (ee) | “Securities Commissions” means the state, provincial or federal, as applicable, securities
commissions in each of the Offering Jurisdictions; |
| (ff) | “Subscription Agreement” means the instruction page, page 3 (cover page), the Term
Sheet, the General Provisions, exhibits and other Schedules incorporated by reference; |
| (gg) | “Terms” means those portions of this Subscription Agreement headed “General Provisions”
and “Term Sheet”; |
| (hh) | “United States” has that meaning ascribed
to it in Rule 902(1) of Regulation S; |
| (ii) | “United States Accredited Investor” means
an accredited investor as defined in Rule 501(a) of Regulation D; |
| (jj) | “Units” has the meaning set forth on page
3; |
| (kk) | “U.S. Person” has the meaning ascribed
to it in Rule 902(k) of Regulation S. Without limiting the foregoing, but for greater clarity in this Subscription Agreement,
a U.S. Person includes, subject to the exclusions set forth in Regulation S, (i) any natural person resident in the United States,
(ii) any partnership or corporation organized or incorporated under the laws of the United States, (iii)
any estate or trust of which any executor, administrator, or trustee is a U.S. Person, (iv) any 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 (v) any partnership or corporation organized or incorporated under the laws of any non-U.S. jurisdiction
which is 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 U.S. Accredited Investors who are not natural persons, estates or trusts; |
| (ll) | “Warrant Shares” has the meaning set forth
on page 3; and |
| (mm) | “Warrants” has the meaning set forth on page
3. |
1.2 In
this Subscription Agreement, unless otherwise specified, currencies are indicated in Dollars.
1.3 In
this Subscription Agreement, other words and phrases that are capitalized have the meaning assigned in this Subscription Agreement.
2.1 An
aggregate of 11,428,572 Units are being offered for sale by the Corporation at a subscription price of US $1.05 per Unit for gross
proceeds of US $12,000,000. The Private Placement will include a brokered portion to institutional and accredited investors for
up to $5,000,000 (the “Brokered Offering”) on a best efforts basis by the Agent pursuant to the terms of an
agency agreement, and a non-brokered portion for up to $7,000,000 (the “Non- brokered Offering”). The Agent
is not acting as selling agent, placement agent or finder with respect to the Non- brokered Offering and shall have no obligation
or duty to investors participating in the Non-brokered Offering.
2.2 By
executing this Agreement, the Subscriber offers to purchase from the Corporation that number of Units set forth on page 3 hereof,
subject to the terms and conditions set out herein. The Subscriber acknowledges that the offer is subject to: (a) the acceptance
of this subscription by the Corporation, (b) delivery by the Subscriber of the documents set out on page 1 (as applicable), and
(c) receipt of all necessary regulatory approvals. Upon the Corporation’s acceptance of this subscription, this Subscription
Agreement will constitute an agreement for the purchase by the Subscriber from the Corporation and for the Corporation to issue
and sell to the Subscriber, the number of Units set forth on page 3 hereof on the terms and conditions set forth herein.
2.3 The
Private Placement is not, and under no circumstances is to be construed as, a public offering of the Securities. The Private Placement
is not being made, and this subscription does not constitute an offer to sell or the solicitation of an offer to buy the Securities
in any jurisdiction where, or to any person whom, it is unlawful to make such an offer of solicitation.
3.1 Each
Unit will be comprised of one Share and one-half of a Warrant. The Units will be issued and registered in the name of the Subscriber.
3.2 The
issue of the Units will not restrict or prevent the Corporation from obtaining any other financing or from issuing additional securities
or rights.
4.1 Each
whole Warrant will entitle the holder, on exercise, to purchase one Warrant Share at an exercise price of US $1.35 for a period
of 36 months following the Closing Date. Warrants may only be exercised for full common shares. Except in accordance with applicable
securities laws, the Warrants will not be transferable and will not be listed for trading on any securities exchange.
4.2 The
certificates representing the Warrants will, among other things, include provisions for the appropriate adjustment in the class,
number and price of the Warrant Shares issued on exercise of the Warrants upon the occurrence of certain events, including any
subdivision, consolidation or reclassification of the Corporation’s common shares, the payment of stock dividends and the
amalgamation of the Corporation.
4.3 The
issue of the Warrants will not restrict or prevent the Corporation from obtaining any other financing, or from issuing additional
securities or rights, during the period within which the Warrants may be exercised.
| 5. | REPRESENTATIONS AND WARRANTIES OF SUBSCRIBER |
5.1 Acknowledgements
Concerning Offering.
The Subscriber acknowledges that:
| (a) | no securities commission or similar regulatory authority
has reviewed or passed on the merits of the Securities; |
| (b) | there is no government or other insurance covering the
Securities; |
| (c) | there are risks associated with the purchase of the Securities
which include, but are not limited to, those risks listed on Schedule IV hereto; |
| (d) | there are restrictions on the Subscriber’s ability
to resell the Securities and it is the responsibility of the Subscriber to determine such restrictions and to comply with them
before selling the Securities; |
| (e) | the Corporation has advised the Subscriber that the Corporation
is relying on an exemption from the requirements to provide the Subscriber with a prospectus and to sell securities through a
person registered to sell securities under the Applicable Legislation (including, but not limited to Regulation D promulgated
by the SEC for sales to US Persons and the laws and regulations of the various states) and, as a consequence of acquiring securities
pursuant to this exemption, certain protections, rights and remedies provided by the Applicable Legislation, including statutory
rights of rescission or damages, will likely not be available to the Subscriber; |
| (f) | no prospectus has been filed by the Corporation with
the Securities Commissions in connection with the issuance of the Securities, the issuance is exempted from the prospectus and
registration requirements of the Applicable Legislation and: |
| (i) | the Corporation is relieved from certain obligations
that would otherwise apply under the Applicable Legislation; |
| (ii) | the Subscriber is restricted from using most of the civil
remedies available under the Applicable Legislation; and |
| (iii) | the Subscriber may not receive information that would
otherwise be required to be provided to the Subscriber under the Applicable Legislation; |
| (g) | the Subscriber acknowledges that the Securities have
not been registered under the 1933 Act and may not be offered or sold in the United States unless registered under the 1933 Act
and the securities laws of all applicable states of the United States or an exemption from such registration requirements is available,
and that the Corporation has no obligation or present intention of filing a registration statement under the 1933 Act or any of
the Securities. Subscriber also understands that there is no assurance that any exemption from registration under the 1933 Act
will be available and that, even if available, such exemption may not allow Subscriber to transfer all or any portion of the Securities
under the circumstances, in the amounts or at the times Subscriber might propose; and |
| (h) | The Subscriber acknowledges that the Corporation is required
to file a report of trade with all applicable Regulatory Authorities containing personal information about Subscribers. This report
of trade will include the full name, residential address and telephone number of each Subscriber, the number and type of Securities
purchased, the total purchase price paid for such Securities, the date of the Closing and the prospectus exemption relied upon
under applicable securities laws to complete such purchase. In Ontario, Canada, this information is collected indirectly by the
Ontario Securities Commission under the authority granted to it under, and for the purposes of the administration and enforcement
of, the securities legislation in Ontario, Canada. Any Subscriber may contact the Administrative Support Clerk at the OSC at Suite
1903, Box 55, 20 Queen Street West, Toronto, Ontario M5H 3S8 Canada or by telephone at (416) 593-3684 for more information regarding
the indirect collection of such information by the Ontario Securities Commission. By completing this Agreement, the Subscriber
authorizes the indirect collection of the information described in this section by all applicable Regulatory Authorities and consents
to the disclose of such information to the public through the filing of a report of trade with all applicable Regulatory Authorities. |
5.2 Representations
by all Subscribers
The Subscriber represents and warrants to the Corporation
that, as at the date of this Agreement and at the Closing:
| (a) | the Subscriber is purchasing the Securities for its,
his or her own account, and not as a nominee or agent, for investment only, and not for the benefit of any other person or for
resale, distribution or other disposition of the Securities, and that the Subscriber has no present intention of selling, granting
any participation in, or otherwise distributing the same and Subscriber further represents that the Subscriber does not presently
have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person
or to any third Person, with respect to any of the Securities; |
| (b) | Subscriber has not been formed for the specific purpose
of acquiring the Securities; |
| (c) | to the best of the Subscriber’s knowledge, the
Securities were not advertised; |
| (d) | no person has made to the Subscriber any written or oral
representations: |
| (i) | that any person will resell or repurchase the Securities; |
| (ii) | that any person will refund the purchase price 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 a stock exchange or that application has been made to list and post any of the Securities for trading on any stock
exchange, other than the Shares and Warrant Shares on the Exchange; |
| (e) | this subscription has not been solicited in any other
manner contrary to the Applicable Legislation; |
| (f) | the Subscriber has been advised to consult its own legal
and tax advisors with respect to applicable resale restrictions and tax considerations, and it is solely responsible for compliance
with applicable resale restrictions and applicable tax legislation; |
| (g) | the Subscriber has no knowledge of a “material
fact” or “material change” (as those terms are defined in the Applicable Canadian Legislation) in the affairs
of the Corporation that has not been generally disclosed to the public, except knowledge of this particular transaction; |
| (h) | the offer made by this subscription is irrevocable once
the subscription payment has been received with fully executed subscription documents as required hereunder (subject to the Subscriber’s
right to withdraw the subscription and to terminate the obligations as set out in this Subscription Agreement) and requires acceptance
by the Corporation and approval of the Exchange; |
| (i) | the Subscriber has the legal capacity and competence
to enter into and execute this Subscription Agreement and to take all actions required pursuant to this Subscription Agreement
and, if the Subscriber is a corporation or other entity, it is duly incorporated or organized, as applicable, and validly subsisting
under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have
been given to authorize execution of this Subscription Agreement on behalf of the Subscriber; |
| (j) | the Subscriber is not a “control person”
of the Corporation as defined in the Applicable Canadian Legislation, will not become a “control person” by virtue
of this purchase of any of the Securities, and does not intend to act in concert with any other person to form a control group
of the Corporation; |
| (k) | unless the Subscriber has completed and signed Schedule
II, the offer was not made to the Subscriber when the Subscriber was in the United States and, at the time the Subscriber signed
this Subscription Agreement and purchased the Securities, the Subscriber was outside of the United States; |
| (l) | unless the Subscriber has completed and signed Schedule
II, the Subscriber is not a U.S. Person; |
| (m) | unless the Subscriber has completed and signed Schedule
II, the Subscriber is not and will not be purchasing Securities for the account or benefit of any U.S. Person; |
| (n) | the entering into of this Subscription Agreement and
the transactions contemplated hereby will not result in the violation of any of the terms and provisions of any law applicable
to, or the 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; |
| (o) | this Subscription Agreement has been duly executed and
delivered by the Subscriber and constitutes a legal, valid and binding agreement of the Subscriber enforceable against the Subscriber; |
| (p) | The
Corporation has provided to Subscriber the opportunity to ask questions and receive answers from the Corporation concerning the
terms and conditions of the offering of the Securities, and has had an opportunity to discuss the Corporation’s business,
management and financial affairs with directors, officers and management of the Corporation’s and has had the opportunity
to review the Corporation’s operations and facilities and it has had access to such other information regarding the business,
properties, prospects and financial condition of the Corporation (including, without limitation, any strategic transaction, public
securities offering, private financing transaction (whether debt or equity), merger, consolidation, recapitalization, reclassification,
reorganization, change of control transaction, sale of assets or securities, liquidation or similar transaction which have been,
are being or may be contemplated by the Corporation) as it has considered necessary or appropriate in connection with its investment
decision to acquire the Units, and Subscriber is aware that the Corporation may in the future sell securities at a price lower
than the per share price at which Subscriber is purchasing the Units; |
| (q) | Subscriber represents that by reason of his, her, its,
or of its management’s, business or financial experience, Subscriber has the capacity to protect Subscriber’s own
interests in connection with the transactions contemplated in this Agreement; |
| (r) | the Subscriber has been independently advised as to the
applicable hold period imposed in respect of the Securities by securities legislation in the jurisdiction in which the Subscriber
resides and confirms that no representation has been made respecting the applicable hold periods for the Securities and is aware
of the risks and other characteristics of the Securities and of the fact that the Subscriber may not be able to resell the Securities
except in accordance with the applicable securities legislation and regulatory policies; |
| (s) | the Subscriber is capable of assessing the proposed investment
as a result of the Subscriber’s financial and business experience or as a result of advice received from a registered person
other than the Corporation or any affiliates of the Corporation and in particular, Subscriber acknowledges the risks inherent
in the Corporation, which include, but not limited to, those risks listed on Schedule IV hereto and incorporated herein by this
reference; |
| (t) | if required by applicable securities legislation, policy
or order or by any securities commission, stock exchange or other regulatory authority, the Subscriber will execute, deliver,
file and otherwise assist the Corporation in filing, such reports, undertakings and other documents with respect to the issue
of the Securities as may be required; |
| (u) | it has satisfied itself as to the full observance of
the laws of its jurisdiction in connection with any invitation to subscribe for the Securities, including (i) the legal requirements
within its jurisdiction for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if
any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Securities and that Subscriber’s
subscription and payment for and continued beneficial ownership of the Securities will not violate any applicable securities or
other laws of the Subscriber’s jurisdiction; |
| (v) | the funds representing the aggregate purchase price which
will be advanced by the Subscriber to the Corporation hereunder will not represent proceeds of crime for the purposes of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act (Canada) (the “PCMLA”) and the Subscriber acknowledges
that the Corporation may in the future be required by law to disclose the Subscriber’s name and other information relating
to this Subscription Agreement and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PCMLA.
To the best of its knowledge, none of the subscription funds to be provided by the Subscriber (i) have been or will be derived
from or related to any activity that is deemed criminal under the law of Canada, the United States of America, or any other jurisdiction
or (ii) are being tendered on behalf of a person or entity who has not been identified to the Subscriber. The Subscriber shall
promptly notify the Corporation if the Subscriber discovers that any of such representations ceases to be true, and to provide
the Corporation with appropriate information in connection therewith; and |
| (w) | Subscribers participating in the Non-brokered Offering
shall have no claims under the laws of any jurisdiction against the Agent with respect to his/her/its subscription and hereby
acknowledges and understands that the Agent is not representing such Subscriber, has not acted as placement agent, finder or selling
agent with respect to the Subscriber’s subscription for Units, has not undertaken any due diligence or analysis on behalf
of Subscribers in the Non-brokered Offering and the Agent is not representing the Subscribers in the Non-brokered Offering in
any capacity. |
5.3 Representations
by residents of the United States or U.S. Persons:
The Subscriber represents and warrants to the Corporation
that, as at the date of this Agreement and at the Closing:
| (a) | the Subscriber is a resident of the United States of
America or U.S. Person, or is otherwise subject to the securities laws thereof; |
| (b) | understands the Securities have not and will not be registered
under the 1933 Act or the securities laws of any state of the United States of America in which the Subscriber is a resident and
the sale contemplated hereby is being made in reliance on private placement exemptions pursuant to Rule 506 of the 1933 Act, which
depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Subscriber’s representations
as expressed herein; |
| (c) | the Subscriber is a United States Accredited Investor
as set out in the completed Schedule II - U.S. Accredited Investor Questionnaire, delivered with this Agreement; |
| (d) | Subscriber is purchasing the Units for his, her or its
own account for investment purposes only and not with a view to resale or distribution and, in particular, it has no intention
to distribute either directly or indirectly any of the Units in the United States; provided, however, that the Subscriber may
sell or otherwise dispose of any of the Units pursuant to registration thereof pursuant to the 1933 Act and any applicable state
securities laws or under an exemption from such registration requirements; |
| (e) | Subscriber has such substantial knowledge and experience
in financial business matters as to be capable of evaluating the merits and risks of an investment in the Units and it is able
to bear the economic risk of loss of its entire investment and has the capacity to protect its own interests; |
| (f) | Subscriber understands that if he/she/it decides to offer,
sell or otherwise transfer the Securities, he/she/it will not offer, sell or otherwise transfer any of such securities directly
or indirectly, unless: |
| (i) | the transfer is made in compliance with the exemption
from the registration requirements under the 1933 Act provided by Rule 144 or Rule 144A thereunder, if available, and in accordance
with applicable state securities laws; or |
| (ii) | the Securities are transferred in a transaction that
does not require registration under the 1933 Act or any applicable state laws and regulations governing the offer and sale of
securities; |
and it has prior to such sale
furnished to the Corporation an opinion of counsel of recognized standing or other evidence of exemption, in either case reasonably
satisfactory to the Corporation;
| (g) | Subscriber understands that upon the issuance thereof,
and until such time as the same is no longer required under the applicable requirements of the 1933 Act or applicable U.S. state
laws and regulations, the certificates representing the Securities, and all securities issued in exchange therefor or in substitution
thereof, will bear a legend in substantially the following form: |
“THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“1933 ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION,
(B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN COMPLIANCE WITH THE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE 1933 ACT PROVIDED BY RULE 144 OR RULE 144A THEREUNDER, IF AVAILABLE,
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE
1933 ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE CORPORATION AN OPINION OF
COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE CORPORATION. DELIVERY OF THIS
CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN
CANADA.”
provided, that if any of the
Securities are being sold under clause (B) above, at a time when the Corporation is a “foreign issuer” as defined in
Rule 902 under the 1933 Act, the legend set forth above may be removed by providing a declaration to the Corporation and its transfer
agent in such form as the Corporation may from time to time prescribe, together with such other evidence, including an opinion
of counsel in form satisfactory to the Corporation and its transfer agent, as the Corporation and its transfer agent may from time
to time prescribe, to the effect that the sale of such securities is being made in compliance with Rule 904 of Regulation S under
the 1933 Act;
provided further, that if any
of the Securities are being sold pursuant to Rule 144 of the 1933 Act, the legend may be removed by delivery to the Corporation’s
transfer agent of an opinion satisfactory to the Corporation to the effect that the legend is no longer required under applicable
requirements of the 1933 Act or state securities laws;
| (h) | Subscriber consents to the Corporation making a notation
on its records or giving instruction to the registrar and transfer agent of the Corporation in order to implement the restrictions
on transfer set forth and described herein; |
| (i) | Subscriber understands and acknowledges that the Warrants
may not be exercised in the United States or by or on behalf of a U.S. Person unless an exemption is available from the registration
requirements of the 1933 Act and the securities laws of all applicable states and the holder has furnished an opinion of counsel
of recognized standing in form and substance satisfactory to the Corporation to such effect; provided that a Subscriber who purchased
Units pursuant to the Offering will not be required to deliver an opinion of counsel in connection with the due exercise of the
Warrants that comprise part of the Units if the Subscriber delivers to the Corporation a warrant exercise form containing representations,
warranties and agreements substantially in a form acceptable to the Corporation; |
| (j) | Subscriber understands and acknowledges that the Corporation
has no obligation or present intention of filing with the United States Securities and Exchange Commission or with any state securities
administrator any registration statement in respect of resale of the Securities in the United States; |
| (k) | the office or other address of the Subscriber at which
the Subscriber received and accepted the offer to purchase the Units is the address listed as the “Subscriber’s Address”
on the signature page of this Agreement; |
| (l) | Subscriber
acknowledges that it has not purchased the Units as a result of any form of general solicitation or general advertising (as such
terms are used in Regulation D under the 1933 Act), including, but not limited to, any 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; |
| (m) | Subscriber understands and agrees that there may be material
tax consequences to the Subscriber of an acquisition, holding, exercise or disposition of the Securities. The Corporation does
not give any opinion or make any representation with respect to the tax consequences to the Subscriber under any tax law of the
Subscriber’s acquisition, holding, exercise or disposition of the Securities, and the Subscriber acknowledges that the Subscriber
is solely responsible for determining the tax consequences to its investment. In particular, no determination has been made whether
the Corporation will be a “passive foreign investment company” within the meaning of Section 1297 of the United States
Internal Revenue Code; |
| (n) | Subscriber understands and acknowledges that the Corporation
(i) is not obligated to remain a “foreign issuer” within the meaning of Regulation S, (ii) may not, at the time the
Securities are resold by it or at any other time, be a foreign issuer, and (iii) may engage in one or more transactions which
could cause the Corporation not to be a foreign issuer, and if the Corporation is not a foreign issuer at the time of sale or
transfer of the Securities pursuant to Rule 904 of Regulation S, the certificates representing the Securities may continue to
bear the legend described here; |
| (o) | Subscriber understands that the Financial Statements
of the Corporation have been prepared in accordance with Canadian generally accepted accounting principles (up to and including
audited financial statements for the year ended August 31, 2011) and International Financial Reporting Standards (financial statements
subsequent to August 31, 2011), which differ in some respects from United States generally accepted accounting principles and
thus may not be comparable to financial statements of United States companies; |
| (p) | Subscriber understands and agrees that the certificates
representing the Warrants, and all certificates issued in exchange therefor or in substitution thereof, shall bear the following
legend, or such other legend, as may be advised by legal counsel for the Corporation: |
“THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT MAY NOT BE EXERCISED IN THE UNITED STATES OR
BY OR ON BEHALF OF, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS
WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND THE APPLICABLE SECURITIES LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION
FROM SUCH REGISTRATION REQUIREMENTS IS AVAILABLE. “UNITED STATES” AND “U.S. PERSON” ARE AS DEFINED BY REGULATION
S UNDER THE SECURITIES ACT.”
| (q) | that
the funds representing the subscription funds which will be advanced by the Subscriber to the Corporation hereunder will not represent
proceeds of crime for the purposes of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (the “PATRIOT Act”) and the Subscriber acknowledges that the Corporation may in
the future be required by law to disclose the Subscriber’s name and other information relating to the Subscription Agreement
and the Subscriber’s subscription hereunder, on a confidential basis, pursuant to the PATRIOT Act. No portion of the subscription
funds to be provided by the Subscriber (i) has been or will be derived from or related to any activity that is deemed criminal
under the laws of the United States of America, or any other jurisdiction, or (ii) is being tendered on behalf of a person or
entity who has not been identified to or by the Subscriber, and it shall promptly notify the Corporation if the Subscriber discovers
that any of such representations ceases to be true and provide the Corporation with appropriate information in connection
therewith. |
5.4 Representations
by residents outside of Canada and the United States:
The Subscriber represents and
warrants to the Corporation that, as of the date of this Agreement and at the Closing:
| (a) | is knowledgeable of, or has been independently advised
as to the applicable securities laws and the applicable rules of any securities regulatory authorities having application in the
jurisdiction in which the Subscriber is a resident (the “International Jurisdiction”) which would apply to
the acquisition of the Subscriber’s Securities, if any; |
| (b) | is purchasing the Securities pursuant to exemptions from
the prospectus and registration requirements under the applicable securities laws of the International Jurisdiction or, if such
is not applicable, the Subscriber is permitted to purchase the Units under the applicable securities laws of the International
Jurisdiction without the need to rely on any exemption; |
| (c) | the applicable securities laws of the International Jurisdiction
do not require the Corporation to make any filings or seek any approvals of any nature whosoever from any regulatory authority
of any kind whatsoever in the International Jurisdiction in connection with the issue and sale or resale of the Securities; and |
| (d) | is complying with the requirements of all applicable
securities legislation in the jurisdiction of its residence and will provide such evidence of compliance with all such matters
as the Corporation may request. |
5.5 Reliance,
indemnity and notification of changes
The representations and warranties
in this Subscription Agreement (including the schedules, exhibits and appendices incorporated by reference) are made by the Subscriber
with the intent that they be relied upon by the Corporation in determining its suitability as a Subscriber of Securities, and the
Subscriber hereby agrees to indemnify the Corporation against all losses, claims, costs, expenses and damages or liabilities which
any of them may suffer or incur as a result of reliance thereon. The Subscriber undertakes to notify the Corporation immediately
of any change in any representation, warranty or other information relating to the Subscriber set forth in this Subscription Agreement
(including the schedules, exhibits and appendices incorporated by reference) which takes place prior to the Closing.
5.6 Survival
of representations and warranties
The representations and warranties
contained in this Section will survive the Closing.
| 6. | REPRESENTATIONS AND WARRANTIES OF THE CORPORATION |
6.1 The
Corporation represents and warrants to the Subscriber that, as of the date of this Agreement and at the Closing:
| (a) | the Corporation and its subsidiaries, if any, are valid
and subsisting corporations duly incorporated, continued or amalgamated and in good standing under the laws of the jurisdictions
in which they are incorporated, continued or amalgamated with respect to all acts necessary to maintain their corporate existence; |
| (b) | the
Corporation is the beneficial owner of the properties, business and assets or the interests in the properties, business and assets
referred to in the Public Record, except as disclosed in the Public Record all agreements by which the Corporation holds an interest
in a property, business or asset are in good standing according to their terms, and there has not been any breach of the applicable
laws of the jurisdictions in which such properties, business and assets are situated which would have a material adverse
effect on such properties, business and assets; |
| (c) | the Financial Statements accurately reflect the financial
position of the Corporation as at the date thereof and have been properly prepared in accordance with Canadian Generally Accepted
Accounting Principles (up to and including audited financial statements for the year ended August 31, 2011) and International
Financial Reporting Standards (financial statements subsequent to August 31, 2011); |
| (d) | no adverse material changes in the financial position
of the Corporation have taken place since the date of the latest balance sheet contained in the Financial Statements (namely,
May 31, 2013), except as has been publicly disclosed; |
| (e) | except as provided in the Public Record, the Corporation
and its subsidiaries are not currently a party to any actions, suits or proceedings which could materially affect the Corporation’s
business or financial condition; |
| (f) | except as disclosed in the Public Record and for options
granted in the ordinary course under the Corporation’s stock option plan, there are no outstanding options, warrants or
other securities exercisable to purchase or convertible or exchangeable into common shares of the Corporation; |
| (g) | the Corporation has complied and will comply with all
applicable corporate and securities laws and regulations in connection with the offer, sale and issuance of the Securities; |
| (h) | the issuance and sale of the Securities by the Corporation
does not and will not conflict with and does not and will not result in a breach of any of the terms, conditions or provisions
of its constating documents or any agreement or instrument to which the Corporation is a party; |
| (i) | this Agreement has been duly authorized by all necessary
corporate action on the part of the Corporation and, subject to acceptance by the Corporation, constitutes a valid obligation
of the Corporation legally binding upon it and enforceable in accordance with its terms; |
| (j) | the issuance of the Securities, at the time of their
issue, will have been approved by all requisite corporate action and any shares comprising part of the Securities, upon issue
and delivery, will be validly issued as fully paid and non-assessable; |
| (k) | the Corporation is a reporting issuer under the BC Act
and Alberta Act, its common shares are listed for trading on the Exchange; and |
| (l) | all consents, approvals, authorizations, orders or agreements
of any stock exchanges, securities commissions or similar authorities in Canada, governmental agencies or regulators, courts or
any other persons which may be required for the issuance of the Securities and the delivery of certificates representing the Securities
to the Subscriber, shall be obtained and in effect prior to or on the date of delivery of such certificates. |
6.2 Survival
of representations and warranties
The representations and warranties
contained in this Section will survive the Closing.
7.1 The
Subscriber acknowledges that, although Securities may be issued to other purchasers under the Private Placement concurrently with
the Closing, there may be other sales of Securities under the Private Placement, some or all of which may close before or after
the Closing.
7.2 On
or before the business day before the Closing Date, the Subscriber will deliver to the Corporation this Subscription Agreement
and all applicable schedules and required forms, duly executed, and payment in full for the total purchase price of the Securities
to be purchased by the Subscriber in the manner as set forth on page 1 of this Subscription Agreement.
7.3 At
Closing or as soon as reasonably possible thereafter, the Corporation will deliver to the Subscriber the certificates representing
the Securities purchased by the Subscriber registered in the name of the Subscriber or its nominee, or as directed by the Subscriber.
7.4 There
is no minimum Offering amount which must be subscribed prior to any Closing. The Corporation (and the Agent in the Brokered Offering)
may hold one or more closings from time to time during the offering period. The offering period for the Brokered Offering commences
on August 29, 2013 and terminates on September 13, 2013 unless extended, without further notice to the subscribers, to September
20, 2013. Funds may be released to and available to the Corporation at any time. Closings in the Brokered Offering shall be held
from time to time upon acceptance of subscriptions and delivery of closing documents as shall be determined by the Corporation
and the Agent.
8.1 The
Subscriber agrees to sell, assign or transfer the Securities only in accordance with the requirements of applicable securities
laws and any legends placed on the Securities as contemplated by this Subscription Agreement.
8.2 The
Subscriber hereby authorizes the Corporation to correct any minor errors in, or complete any minor information missing from any
part of this Subscription Agreement and any other exhibits, schedules, forms, certificates or documents executed by the Subscriber
and delivered to the Corporation in connection with the Private Placement.
8.3 The
Corporation may rely on delivery by fax machine of an executed copy of this subscription or electronic mail (including, but not
limited to PDF), and acceptance by the Corporation of such faxed copy or electronic transmission will be equally effective to create
a valid and binding agreement between the Subscriber and the Corporation in accordance with the terms of this Subscription Agreement.
8.4 Without
limitation, this subscription and the transactions contemplated by this Subscription Agreement are conditional upon and subject
to the Corporation’s having obtained such regulatory approval of this subscription and the transactions contemplated by this
Subscription Agreement as the Corporation considers necessary.
8.5 This
Subscription Agreement is not assignable or transferable by the parties hereto without the express written consent of the other
party to this Subscription Agreement.
8.6 Time
is of the essence of this Subscription Agreement and will be calculated in accordance with the provisions of the Interpretation
Act (British Columbia).
8.7 Except
as expressly provided in this Subscription Agreement and in the agreements, instruments and other documents contemplated or provided
for in this Subscription Agreement, this Subscription Agreement contains the entire agreement between the parties with respect
to the Securities and there are no other terms, conditions, representations or warranties whether expressed, implied, oral or written,
by statute, by common law, by the Corporation, or by anyone else.
8.8 The
parties to this Subscription Agreement may amend this Subscription Agreement only in writing.
8.9 This
Subscription Agreement enures to the benefit of and is binding upon the parties to this Subscription Agreement and their successors
and permitted assigns.
8.10 A
party to this Subscription Agreement will give all notices to or other written communications with the other party to this Subscription
Agreement concerning this Subscription Agreement by (a) personal delivery to the party to be notified, (b) when sent, if
sent by electronic mail (including PDF) or facsimile during normal business hours of the recipient, and if not sent during normal
business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight
courier, freight prepaid, specifying next business day delivery, with written verification of receipt, addressed to the address
given on page 3, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance
with this paragraph 8.10.
8.11 This
Subscription Agreement is to be read with all changes in gender or number as required by the context.
8.12 This
Subscription Agreement will be governed by and construed in accordance with the internal laws of British Columbia (without reference
to its rules governing the choice or conflict of laws), and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction
of the courts of British Columbia with respect to any dispute related to this Subscription Agreement.
[Signature Page Follows]
The Corporation hereby accepts
the subscription for Securities as set forth on page 3 of this Subscription Agreement on the terms and conditions contained in
the Subscription Agreement (including all applicable exhibits and schedules) this day
of ,
2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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* |
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Per: |
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Frank Oakes, Chief
Executive Officer an
Authorized Signatory |
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EXHIBIT 1
TERM SHEET
STELLAR BIOTECHNOLOGIES, INC.
(Capitalized terms have the meanings assigned
in the Subscription Agreement.)
THE CORPORATION |
Stellar Biotechnologies, Inc. |
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PRIVATE PLACEMENT |
The Private Placement consists of 11,428,572 Units. The Private Placement will include a brokered portion to institutional and accredited investors (the “Brokered Offering”) and a non-brokered portion (the “Non-brokered Offering”). The Corporation has retained Newport Coast Securities (the “Agent”) as the exclusive placement agent to solicit, on a “best efforts” basis, subscription for the Brokered Offering. |
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SECURITIES |
Each Unit consists of one previously unissued common share, as presently constituted (a “Share”) and one-half of a common share purchase warrant (a “Warrant”) of the Corporation. Each whole Warrant will entitle the holder, on exercise, to purchase one additional common share of the Corporation (a “Warrant Share”), at a price of US $1.35 per Warrant Share until the close of business on the day which is thirty-six months from the Closing Date. |
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TOTAL AMOUNT |
US $12,000,000, of which up to $5,000,000 shall be in the Brokered Offering. |
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PRICE |
US $1.05 per Unit. |
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WARRANTS |
The Warrants will be transferable, subject to compliance with applicable securities legislation. |
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The certificates representing the Warrants will, among other things, include provisions for the appropriate adjustment in the class, number and price of the Warrant Shares issued upon exercise of the Warrants upon the occurrence of certain events, including any subdivision, consolidation or reclassification of the Corporation’s common shares, the payment of stock dividends and the amalgamation of the Corporation. |
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The issue of the Warrants will not restrict or prevent the Corporation from obtaining any other financing, or from issuing additional securities or rights, during the period within which the Warrants may be exercised. |
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PLACEMENT AGENT FEE |
The Agent will receive a cash fee equal to 7% of the gross proceeds raised by the Agent in connection with the Brokered Offering (or 3.5% of the gross proceeds from investors identified by the Corporation who participate in the Brokered Offering). The Agent will also receive agent warrants (“Agent Warrants”) in an amount equal to 7% of the aggregate number of Shares sold by the Agent. Each Agent Warrant will be exercisable for a period of thirty-six months from the date of issuance into one common share at U.S. $1.05, a price equal to the issue price of the Brokered Offering. We have also agreed to pay to the Agent (or its counsel) expenses of up to $30,000. We have also agreed to pay to the Agent the fees of its clearing firm which may be imposed with respect to the acceptance of the Securities on behalf of subscribers. The Corporation will not pay a placement agent fee on the Non-brokered Offering. |
EXEMPTIONS |
The offering will be made in accordance with the following exemptions from the prospectus requirements: |
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| (a) | the “accredited investor” exemption (section
2.3 of National Instrument 45-106 published by the Canadian Securities Administrators); |
| (b) | Section 4(a)(2) of the 1933 Act and Rule 506 of Regulation
D promulgated under the 1933 Act; and |
| (g) | the “offshore exemption” (BC Instrument 72-503). |
RESALE RESTRICTIONS AND LEGENDS |
For Securities issued to all persons, such
Securities shall be subject to a four month and one day hold period that commences on Closing. For Shares issued to persons who
are residents of the United States, such Shares shall be subject to a six month hold period that commences on Closing and may be
sold thereafter only in accordance with exemptions provided therein and the regulations promulgated by the SEC. For Warrant Shares
issued to persons who are residents of the United States, such Warrant Shares shall be subject to a six month hold period that
commences upon exercise of the Warrants.
The Subscriber acknowledges that the certificates
representing the Securities will bear the following legends:
“UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE [INSERT THE DATE THAT IS FOUR MONTHS AND A DAY AFTER
THE DISTRIBUTION DATE.]”
“WITHOUT PRIOR WRITTEN APPROVAL OF
THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE
IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL [DATE THAT IS FOUR MONTHS AND A DAY AFTER THE CLOSING].”
If the Subscriber is a resident of the
United States, then the Subscriber acknowledges that the certificates representing the Securities will bear the additional following
legend or such other legend as legal counsel for the Corporation may advise: |
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“THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (“1933 ACT”), OR UNITED STATES STATE LAWS, AND ARE BEING OFFERED FOR SALE AND SOLD IN THE UNITED STATES OR TO A U.S. PERSON IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND SUCH LAWS. THE SECURITIES OFFERED IN THE UNITED STATES OR TO A U.S. PERSON ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE 1933 ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, HYPOTHECATED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR AN OPINION OF COUNSEL ACCEPTABLE TO THE CORPORATION AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.” |
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Subscribers are advised to consult with their own legal counsel or advisors to determine the resale restrictions that may be applicable to them. |
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CLOSING DATE |
Payment for the Units is required as soon as possible, and the delivery of the Units is scheduled to occur following receipt of the required approval of the TSX Venture Exchange or on such date as may be designated by the Corporation (the “Closing Date”). There is no minimum offering amount and funds shall be available immediately to the Corporation following each closing. Closings may take place from time to time at later dates as may be determined by the Corporation. With respect to the Brokered Offering, subscription funds shall be placed in escrow at Signature Bank in New York, New York, pending closings to be held at such times as shall be agreed upon by the Corporation and the Agent, following confirmation of accepted subscriptions, delivery of usual and customary closing documents and opinions of counsel. Securities purchased in the Brokered Offering shall be delivered to subscribers (or the Agent on behalf of Subscribers) within 10 days following each closing. |
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USE OF PROCEEDS |
Proceeds of the Private Placement will be used for product research, aquaculture and KLH production development, capital expenditures and working capital. |
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REGULATORY APPROVAL: |
The completion of the Offering is subject to regulatory approval by the TSX Venture Exchange. |
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JURISDICTION OF ORGANIZATION |
The Corporation is a validly existing company under the laws of the British Columbia Business Corporations Act. |
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STOCK EXCHANGE LISTING |
Shares of the Corporation are listed on the TSX Venture Exchange. |
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SECURITIES LEGISLATION APPLICABLE TO THE CORPORATION |
The “Securities Legislation Applicable to the Corporation” is the Securities Act (British Columbia) and the Securities Act (Alberta) and applicable United States federal and state securities laws, including but not limited to, Section 4(a)(2) of the Securities Act of 1933, as amended and Rule 506 of Regulation D promulgated thereunder by the United States Securities and Exchange Commission. |
EXHIBIT 2
FORM OF WARRANT
UNLESS PERMITTED UNDER SECURITIES
LEGISLATION, THE HOLDER OF THIS SECURITY AND ANY SECURITY ISSUED ON EXERCISE HEREOF MUST NOT TRADE THE SECURITY
BEFORE [DATE]. [four months
and a day after the date the warrants are issued]
WITHOUT PRIOR APPROVAL OF
THE TSX VENTURE EXCHANGE (THE “EXCHANGE”) AND COMPLIANCE WITH ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AND ANY SECURITIES ISSUED ON EXERCISE HEREOF MAY NOT BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE
TRADED ON OR THROUGH THE FACILITIES OF THE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A CANADIAN RESIDENT UNTIL
[DATE THAT IS FOUR MONTHS AND A DAY AFTER THE CLOSING].
THIS WARRANT AND THE SECURITIES
DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “1933
ACT”), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE
TRANSFERRED WITHOUT COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE UNITED STATES FEDERAL AND STATE
SECURITIES LAWS OR WITHOUT DELIVERING AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
DELIVERY OF THIS WARRANT MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.
THIS WARRANT CERTIFICATE IS VOID IF NOT
EXERCISED ON OR BEFORE
5:00 P.M. (PACIFIC TIME) ON [DATE] [36
months from Closing].
WARRANT CERTIFICATE
STELLAR BIOTECHNOLOGIES,
INC.
(Continued under the laws of
the Province of British Columbia)
WARRANT
CERTIFICATE NO. 2013- |
WARRANTS
entitling the holder to acquire, subject to adjustment, one Common Share for each Warrant represented hereby. |
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THIS IS
TO CERTIFY THAT [Name] of [Address] (hereinafter referred to as the “holder” or the “Warrantholder”)
is entitled to acquire for each Warrant represented hereby, in the manner and subject to the restrictions and adjustments set forth
herein, at any time and from time to time until 5:00 p.m. (Pacific time) (the “Expiry Time”) on [Date] [36
months from Closing] (the “Expiry Date”), one fully paid and non-assessable common share (“Common
Share”) in the capital of STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British
Columbia, Canada (the “Company”).
These
Warrants may only be exercised at the head office of the Company located at 332 East Scott Street, Port Hueneme, California, 93041,
or the registered office of the Company located at Suite 401, 1231 Barclay Street, Vancouver, British Columbia, V6E 1H5 (or such
other office or agency of the Company as it may designate by notice in writing to the Warrantholder at the address of the Warrantholder
appearing on the books of the Company).
These Warrants are issued subject to the terms and
conditions appended hereto as Schedule “A”.
IN WITNESS
WHEREOF, the Company has caused this Warrant Certificate to be executed by a duly authorized officer of the Company.
DATED
for reference the day of September, 2013.
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STELLAR BIOTECHNOLOGIES, INC. |
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Per: |
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Frank R. Oakes, Chief Executive Officer |
(See terms and conditions attached hereto)
SCHEDULE “A”
TERMS AND CONDITIONS FOR WARRANT
CERTIFICATE
Terms and Conditions
attached to the Warrant Certificate issued by STELLAR BIOTECHNOLOGIES, INC. (the “Company”) and dated
for reference the day of September, 2013.
ARTICLE 1
INTERPRETATION
1.1 Definitions.
In these Terms and Conditions, unless there is something in the subject matter or context inconsistent therewith:
(a) “1933
Act” means the United States Securities Act of 1933, as amended;
(b) “Common
Shares” means the common shares in the capital of the Company to be issued pursuant to the exercise of Warrants;
(c) “Company”
means STELLAR BIOTECHNOLOGIES, INC., a corporation formed under the laws of the province of British Columbia, Canada unless
and until a successor corporation shall have become such in the manner prescribed in Article 6, and thereafter “Company”
shall mean such successor corporation;
(d) “Company’s
Auditors” means an independent firm of accountants duly appointed as auditors of the Company;
(e) “Dollars”
or use of signs “US $” or “$” means only lawful money of the United States and not any other
currency, regardless of whether that currency uses the “$” sign to denote its currency or may be readily converted
into lawful money of the United States;
(f) “Exchange”
means the TSX Venture Exchange or such other stock exchange on which the Company’s Common Shares are listed and posted for
trading; Schedule “A”;
(g)
“Exercise Date” has that meaning ascribed to that term in Section 3.2 of this before [Date];
(h)
“Exercise Price” means the price of US $1.35 per share if exercised on or
(i) “Expiry
Time” means 5:00 p.m. (Pacific Time) on the Expiry Date;
(j) “Expiry
Date” means [Date].
(k) “herein”,
“hereby” and similar expressions refer to these Terms and Conditions as the same may be amended or modified
from time to time; and the expression “Article” and “Section” followed by a number refer to the specified
Article or Section of these Terms and Conditions;
(l) “Issue
Date” means the issue date of the Warrant shown on the face page of the Warrant Certificate;
(m) “person”
means an individual, corporation, partnership, trustee or any unincorporated organization and words importing persons have a similar
meaning;
(n) “Subscription
Form” has that meaning ascribed to that term in Section 3.1 of this Schedule “A”;
(o) “United
States” has that meaning ascribed to it in Rule 902(1) of Regulation S;
(p) “Warrant”
means the warrant to acquire Common Shares evidenced by the Warrant Certificate; and
(q) “Warrant
Certificate” means the certificate to which these Terms and Conditions are attached.
1.2 Interpretation
Not Affected by Headings.
(a) The
division of these Terms and Conditions into Articles and Sections, and the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation thereof.
(b) Words
importing the singular number include the plural and vice versa and words importing the masculine gender include the feminine and
neuter genders.
1.3 Applicable
Law. The terms hereof and of the Warrant shall be construed in accordance with the laws of the Province of British Columbia
and the laws of Canada, and the parties hereto irrevocably attorn and submit to the exclusive jurisdiction of the courts of British
Columbia with respect to any dispute related to this Warrant.
ARTICLE 2
ISSUE OF WARRANT
2.1 Issue
of Warrants. That number of Warrants set out on the Warrant Certificate are hereby created and authorized to be issued.
2.2 Additional
Warrants. Subject to any other written agreement between the Company and the Warrantholder, the Company may at any time and
from time to time undertake further equity or debt financing and may issue additional Common Shares, warrants or grant options
or similar rights to purchase Common Shares to any person.
2.3 Issue
in Substitution for Lost Warrants. If the Warrant Certificate becomes mutilated, lost, destroyed or stolen:
(a) the
Company shall issue and deliver a new Warrant Certificate of like date and tenor as the one mutilated, lost, destroyed or stolen,
in exchange for and in place of and upon cancellation of such mutilated, lost, destroyed or stolen Warrant Certificate; and
(b) the
holder shall bear the cost of the issue of a new Warrant Certificate hereunder and in the case of the loss, destruction or theft
of the Warrant Certificate, shall furnish to the Company such evidence of loss, destruction, or theft as shall be satisfactory
to the Company in its discretion and the Company may also require the holder to furnish indemnity in an amount and form satisfactory
to the Company in its discretion, and shall pay the reasonable charges of the Company in connection therewith.
2.4 Warrantholder
Not a Shareholder. The Warrant shall not constitute the holder a shareholder of the Company, nor entitle it to any right or
interest in respect thereof (including but not limited to voting rights) except as may be expressly provided in the Warrant.
ARTICLE 3
EXERCISE OF THE WARRANT
3.1 Method
of Exercise of the Warrant. The right to purchase Common Shares conferred by the Warrant Certificate may be exercised, prior
to the Expiry Time, by the holder delivering to the Company (whether via facsimile or otherwise) a duly completed and executed
subscription form substantially in the form attached hereto as Schedule “B” (the “Subscription Form”)
and a certified check, bank draft, wire transfer or a money order payable to or to the order of the Company, for the Exercise Price
applicable at the time of exercise in respect of the Common Shares subscribed for in lawful money of the United States, to the
Company.
3.2 Effective
Date of Exercise of the Warrant. This Warrant Certificate together with such Subscription Form, certified check, bank draft,
wire transfer or a money order will be deemed to be exercised only upon actual receipt thereof by the Company as set out above
(the “Exercise Date”).
3.3 Effect
of Exercise of the Warrant.
(a) Upon
delivery of the Subscription Form and payment as aforesaid the Common Shares so subscribed for shall be issued as fully paid and
non-assessable shares and the holder shall become the holder of record of such Common Shares on the date of such delivery and such
payment; and
(b) Within
five business days after delivery and payment as aforesaid, the Company shall forthwith cause the issuance to the holder of a certificate
for the Common Shares purchased as aforesaid.
3.4 Subscription
for Less than Entitlement. The holder may subscribe for and purchase a number of Common Shares less than the number which it
is entitled to purchase pursuant to this Warrant Certificate. Execution and delivery of a Subscription Form with respect to less
than all of the shares underlying this Warrant shall have the same effect as cancellation of the original of this Warrant and issuance
of a new Warrant evidencing the right to purchase the remaining number of shares underlying this Warrant. Execution and delivery
of a Subscription Form for all of the then- remaining shares underlying this Warrant shall have the same effect as cancellation
of the original of this Warrant after delivery of the shares underlying this Warrant in accordance with the terms hereof.
3.5 Expiration
of the Warrant. After the Expiry Time all rights hereunder shall wholly cease and terminate and the Warrant shall be void and
of no effect.
3.6 Hold
Periods and Legending of Share Certificate. The certificates representing the Common Shares to be issued pursuant to the exercise
of this Warrant shall bear a legend in substantially the following forms:
(a)
“THE SHARES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND MAY NOT
BE SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT
OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THIS CERTIFICATE THAT REGISTRATION IS NOT REQUIRED UNDER THE 1933 ACT.”
(b)
“Unless permitted under securities
legislation, the holder of the securities shall not trade the securities before [Date].”
“Without prior written approval
of the TSX Venture Exchange and compliance with all applicable securities legislation, the securities represented by this certificate
may not be sold, transferred, hypothecated or otherwise traded on or through the facilities of the TSX Venture Exchange or otherwise
in Canada or to or for the benefit of a Canadian resident until [Date].”
ARTICLE 4
ADJUSTMENTS
4.1 Adjustments.
The number of Common Shares purchasable upon the exercise of each Warrant and the Exercise Price shall be subject to adjustment
as follows:
(a) in
the event the Company shall:
(i)
pay a dividend in Common Shares or make a distribution in Common Shares;
(ii) subdivide
its outstanding Common Shares;
(iii)
combine its outstanding Common Shares into a smaller number of Common Shares; or
(iv) issue
by reclassification of its Common Shares other securities of the Company (including any such reclassification in connection with
a consolidation, merger, amalgamation or other combination in which the Company is the surviving corporation);
the number of Common Shares (or other securities)
purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the Warrantholder shall be entitled
to receive the kind and number of Common Shares or other securities of the Company which it would have owned or have been entitled
to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening
of such event or any record date with respect thereto. An adjustment made pursuant to this subsection (a) shall become effective
immediately after the effective date of such event retroactive to the record date, if any, for such event.
(b) In
case the Company shall issue rights, options or warrants to all or substantially all holders of its outstanding Common Shares,
without any charge to such holders, entitling them (for a period within 45 days after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share which is lower than 95% of the current market price at the record date mentioned
below (as determined in accordance with subsection (d) below), the number of Common Shares thereafter purchasable upon the exercise
of each Warrant shall be determined by multiplying the number of Common Shares theretofore purchasable upon exercise of each Warrant
by a fraction, of which the numerator shall be the number of Common Shares outstanding on the date of issuance of such rights,
options or warrants plus the number of additional Common Shares offered for subscription or purchase, and of which the denominator
shall be the number of Common Shares outstanding on the date of issuance of such rights, options or warrants plus the number of
shares which the aggregate offering price of the total number of Common Shares so offered would purchase at the current market
price per Common Share at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued,
and shall become effective immediately after the record date for the determination of shareholders entitled to receive such rights,
options or warrants.
(c) In
case the Company shall distribute to all or substantially all holders of its Common Shares evidences of its indebtedness or assets
(excluding cash dividends or distributions payable out of consolidated earnings or earned surplus and dividends or distributions
referred to in subsection (a) above or in subsection (d) below or rights, options or warrants, or convertible or exchangeable securities
containing the right to subscribe for or purchase Common Shares (excluding those referred to in subsection (b) above)), then in
each case the number of Common Shares thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying
the number of Common Shares theretofore purchasable upon the exercise of each Warrant by a fraction, of which the numerator shall
be the then current market price per Common Share (as determined in accordance with subsection (d) below) on the date of such distribution,
and of which the denominator shall be the then current market price per Common Share less the then fair value (as determined by
the board of directors of the Company, acting reasonably) of the portion of the assets or evidences of indebtedness so distributed
or of such subscription rights, options or warrants, or of such convertible or exchangeable securities applicable to one Common
Share. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution
retroactive to the record date for the determination of shareholders entitled to receive such distribution.
In the event of the distribution
by the Company to all or substantially all of the holders of its Common Shares of shares of a subsidiary or securities convertible
or exercisable for such shares, then in lieu of an adjustment in the number of Common Shares purchasable upon the exercise of each
Warrant, the Warrantholder of each Warrant, upon the exercise thereof, shall receive from the Company, such subsidiary or both,
as the Company shall reasonably determine, the shares or other securities to which such Warrantholder would have been entitled
if such Warrantholder had exercised such Warrant immediately prior thereto, all subject to further adjustment as provided in this
Section 4.1 provided, however, that no adjustment in respect of dividends or interest on such shares or other securities shall
be made during the term of a Warrant or upon the exercise of a Warrant.
(d) For
the purpose of any computation under subsections (b) and (c) of this Section 4.1, the current market price per Common Share at
any date shall be the weighted average price per Common Share for twenty-five (25) consecutive trading days, commencing not more
than 45 trading days before such date on the stock exchange on which the Common Shares are then traded; provided if the Common
Shares are then traded on more than one stock exchange, then on the stock exchange on which the largest volume of Common Shares
were traded during such twenty-five (25) consecutive trading day period. The weighted average price per Common Share shall be determined
by dividing the aggregate sale price of all Common Shares sold on such exchange or market, as the case may be, during the said
twenty-five (25) consecutive trading days by the total number of shares so sold. For purposes of this subsection (d), trading day
means, with respect to a stock exchange, a day on which such exchange is open for the transaction of business. Should the Common
Shares not be listed on any stock exchange the current market price per Common Share at any date shall be determined by the board
of directors of the Company, acting reasonably.
(e) In
any case in which this Article 4 shall require that any adjustment in the Exercise Price be made effective immediately after a
record date for a specified event, the Company may elect to defer until the occurrence of the event the issuance, to the holder
of any Warrant exercised after that record date, of the Common Shares and other shares of the Company, if any, issuable upon the
exercise of the Warrant over and above the Common Shares and other shares of the Company; provided, however, that the Company shall
deliver to the holder an appropriate instrument evidencing the holder’s right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(f) No
adjustment in the number of Common Shares purchasable hereunder shall be required unless such adjustment would require an increase
or decrease of at least one percent (1%) in the number of Common Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this subsection (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations shall be made to the nearest one-hundredth of a share.
(g) Wherever
the number of Common Shares purchasable upon the exercise of each Warrant is adjusted, as herein provided, the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of Common Shares purchasable upon the exercise of such Warrant immediately prior to
such adjustment, and of which the denominator shall be the number of Common Shares purchasable immediately thereafter.
(h) No
adjustment in the number of Common Shares purchasable upon the exercise of each Warrant need be made under subsections (b) and
(c) if, the Company issues or distributes to the Warrantholder the rights, options, warrants, or convertible or exchangeable securities,
or evidences of indebtedness or assets referred to in those subsections which the Warrantholder would have been entitled to receive
had the Warrants been exercised prior to the happening of such event or the record date with respect thereto.
(i) In
the event that at any time, as a result of an adjustment made pursuant to subsection (a) above, the Warrantholder shall become
entitled to purchase any securities of the Company other than Common Shares, thereafter the number of such other shares so purchasable
upon exercise of each Warrant and the Exercise Price of such shares shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with respect to the Common Shares contained in subsections (a)
through (h), inclusive, above, and the provisions of sections 4.2 through 4.4, inclusive, of this Article 4 with respect to the
Common Shares, shall apply on like terms to any such other securities.
(j) Upon
the expiration of any rights, options, warrants or conversion or exchange privileges, if any thereof shall not have been exercised,
the Exercise Price and the number of Common Shares purchasable upon the exercise of each Warrant shall, upon such expiration, be
readjusted and shall thereafter be such as it would have been had it been originally adjusted (or had the original adjustment not
been required, as the case may be) as if:
(i) the
only Common Shares so issued were the Common Shares, if any, actually issued or sold upon the exercise of such rights, options,
warrants or conversion or exchange rights; and
(ii) such
Common Shares, if any, were issued or sold for the consideration actually received by the Company upon such exercise plus the aggregate
consideration, if any, actually received by the Company for the issuance, sale or grant of all such rights, options, warrants or
conversion or exchange rights whether or not exercised;
provided further, that no such readjustment
shall have the effect of increasing the Exercise Price or decreasing the number of Common Shares purchasable upon the exercise
of each Warrant by an amount in excess of the amount of the adjustment initially made with respect to the issuance, sale or grant
of such rights, options, warrants or conversion or exchange rights.
4.2 Voluntary
Adjustment by the Company. Subject to requisite Exchange approval, the Company may, at its option, at any time during the term
of the Warrants, reduce the then current Exercise Price to any amount deemed appropriate by the Board of Directors of the Company.
4.3 Notice
of Adjustment. Whenever the number of Common Shares purchasable upon the exercise of each Warrant or the Exercise Price of
such Common Shares is adjusted, as herein provided, the Company shall promptly send to the Warrantholder by first class mail, postage
prepaid, notice of such adjustment or adjustments.
4.4 No
Adjustment for Dividends. Except as provided in Section 4.1 of this Article 4, no adjustment in respect of any dividends shall
be made during the term of a Warrant or upon the exercise of a Warrant.
4.5 Preservation
of Purchase Rights Upon Merger, Consolidation, etc. In connection with any consolidation of the Company with, or amalgamation
or merger of the Company with or into, another corporation (including, without limitation, pursuant to a “takeover bid”,
“tender offer” or other acquisition of all or substantially all of the outstanding Common Shares) or in case of any
sale, transfer or lease to another corporation of all or substantially all the property of the Company, the Company or such successor
or purchasing corporation, as the case may be, shall execute with the Warrantholder an agreement that the Warrantholder shall have
the right thereafter, upon payment of the Exercise Price in effect immediately prior to such action, to purchase upon exercise
of each Warrant the kind and amount of shares and other securities and property which it would have owned or have been entitled
to receive after the happening of such consolidation, amalgamation, merger, sale, transfer or lease had such Warrant been exercised
immediately prior to such action, and the Warrantholder shall be bound to accept such shares and other securities and property
in lieu of the Common Shares to which it was previously entitled; provided, however, that no adjustment in respect of dividends,
interest or other income on or from such shares or other securities and property shall be made during the term of a Warrant or
upon the exercise of a Warrant. Any such agreement shall provide for adjustments, which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Schedule “A”. The provisions of this Article 4 shall similarly
apply to successive consolidations, mergers, amalgamation, sales, transfers or leases.
4.6 Determination
of Adjustments. If any questions shall at any time arise with respect to the Exercise Price, such question shall be conclusively
determined by the Company’s Auditors, or, if they decline to so act, any other firm of Chartered Accountants, in Vancouver,
British Columbia, that the Company may designate and the Warrantholder, acting reasonably, may approve, and who shall have access
to all appropriate records and such determination shall be binding upon the Company and the holder.
ARTICLE 5
COVENANTS BY THE COMPANY
5.1 Reservation
of Common Shares. The Company will reserve and there will
remain unissued out of its authorized capital a sufficient number of Common Shares to satisfy the rights of acquisition provided
for in the Warrant Certificate.
ARTICLE 6
MERGER AND SUCCESSORS
6.1 Company
May Consolidate, etc. on Certain Terms. Nothing herein contained shall prevent any consolidation, amalgamation or merger of
the Company with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the properties
and estates of the Company as an entirety to any corporation lawfully entitled to acquire and operate same, provided, however,
that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially
all the properties and estates of the Company as an entirety shall, simultaneously with such amalgamation, merger, conveyance
or transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed
or observed by the Company.
6.2 Successor
Company Substituted. In case the Company, pursuant to Section 6.1 shall be consolidated, amalgamated or merged with or into
any other corporation or corporations or shall convey or transfer all or substantially all of its properties and estates
as an entirety to any other corporation, the successor corporation formed by such consolidation or amalgamation, or into which
the Company shall have been consolidated, amalgamated or merged or which shall have received a conveyance or transfer as aforesaid,
shall succeed to and be substituted for the Company hereunder and such changes in phraseology and form (but not in substance) may
be made in the Warrant Certificate and herein as may be appropriate in view of such amalgamation, merger or transfer.
ARTICLE 7
AMENDMENTS
7.1 Amendment,
etc. This Warrant Certificate may only be amended and the obligations
of the Company and the rights of the Warrantholder under this Warrant Certificate may be amended, waived, discharged or terminated
(either generally or in a particular instance, either retroactively or prospectively and either for a specified period of time
or indefinitely) by a written instrument signed by the Company and the Warrantholder.
ARTICLE 8
MISCELLANEOUS
8.1 Time.
Time is of the essence of the terms of this Warrant Certificate.
8.2 Notice.
Any notice or other communication to be given in connection with this Warrant Certificate must be in writing and given by (a) personal
delivery to the party to be notified,
(b) when sent, if sent by electronic
mail (including PDF) or facsimile during normal business hours of the recipient, and if not sent during normal business hours,
then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one (1) business day after deposit with an internationally recognized overnight courier,
freight prepaid, specifying next business day delivery, with written verification of receipt, to the recipient at the address below
indicated:
If to the Company:
Stellar Biotechnologies, Inc.
332 E. Scott St.
Port Hueneme, CA 93041
Tel: (805) 488-2800 / Fax: (805) 488-2889
Attention: Chief Financial Officer
If to the Warrantholder:
To the address of such
Holder set forth on the books and records of the Company.
or such other address
or to the attention of such other person as the recipient party shall have specified by prior written notice to the sending party
in accordance with the provisions of this paragraph 8.2.
8.3 Disposition
of Shares and Warrant.
(a) The
Holder hereby acknowledges that: (i) this Warrant and any Common Shares issuable upon exercise of the Warrant have not been registered
(A) under the 1933 Act on the ground that the issuance of this Warrant is exempt from registration under Section 4(a)(2) of the
1933 Act as not involving any public offering, or (B) under any applicable state securities law because the issuance of this Warrant
does not involve any public offering; and (ii) that the Company’s reliance on the registration exemption under Section 4(a)(2)
of the 1933 Act and under applicable state securities laws is predicated in part on the representations hereby made to the Company
by the Warrantholder. The Warrantholder represents and warrants that he, she or it is acquiring this Warrant and will acquire Common
Shares issuable upon exercise of the Warrant for investment for his, her or its own account, with no present intention of dividing
his, her or its participation with others or reselling or otherwise distributing this Warrant or Common Shares issuable upon exercise
of the Warrant.
(b) The
Warrantholder hereby agrees that he, she or it will not sell, transfer, pledge or otherwise dispose of (collectively, “Transfer
”) all or any part of this Warrant and/or Common Shares issuable upon exercise of the Warrant unless and until he,
she or it shall have first obtained an opinion, reasonably satisfactory to counsel for the Company, of counsel (competent in securities
matters, selected by the Warrantholder and reasonably satisfactory to the Company) to the effect that the proposed Transfer may
be made without registration under the 1933 Act and without registration or qualification under any United States state law.
(c) If,
at the time of issuance of Common Shares issuable upon exercise of the Warrant, no registration statement is in effect with respect
to such shares under applicable provisions of the 1933 Act and the Common Shares issuable upon exercise of the Warrant may not
be sold pursuant to Rule 144 of the 1933 Act, the Company may, at its election, require that any stock certificate evidencing Common
Shares issuable upon exercise of the Warrant shall bear the legend reading substantially as set forth in paragraph 3.6(a) above.
In addition, so long as the foregoing legend may remain on any stock certificate evidencing Common Shares issuable upon exercise
of the Warrant, the Company may maintain appropriate “stop transfer” orders with respect to such certificates and the
shares represented thereby on its books and records and with those to whom it may delegate registrar and transfer functions.
8.4 Transfer
of Warrants. Subject to applicable securities legislation (including, but not limited to, the 1933 Act) and the rules, policies,
notices and orders issued by applicable securities regulatory authorities, including the TSX Venture Exchange (or any other stock
exchange on which the Common Shares are listed), the Warrants evidenced hereby (or any portion thereof) may be assigned or transferred
by the holder by duly completing and executing the transfer form attached hereto as Schedule “C”. The rights and obligations
of the Company and Warrantholder shall be binding upon and enure to the benefit of their successors and permitted assigns.
8.5 Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record holder hereof from time to time. The Company may deem and treat the registered
holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the holder, and
for all other purposes, absent actual notice to the contrary.
SCHEDULE “B”
SUBSCRIPTION FORM
| TO: | Stellar Biotechnologies, Inc. |
332 E. Scott Street
Port Hueneme, California 93041
The undersigned Holder
of the within Warrants hereby subscribes for common shares (the “Common Shares”) of STELLAR BIOTECHNOLOGIES,
INC. (the “Company”) pursuant to the within Warrants at US $1.35 per Common Share on the terms specified
in the said Warrants. This subscription is accompanied by a certified check, bank draft, wire transfer or a money order payable
to or to the order of the Company for the whole amount of the purchase price of the Common Shares.
In connection with this subscription: (check
one):
1. ¨
The undersigned hereby certifies that (i) it is not a U.S. Person
(as defined in Regulation S under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”),
the definition of which includes, but is not limited to, any individual resident in the United States, any partnership or corporation
organized or incorporated under the laws of the United States, and any estate or trust of which any administrator, executor or
trustee is a U.S. Person), (ii) at the time of exercise it is not within the United States and it did not execute and deliver this
subscription form in the United States, and (iii) it is not exercising any of the Warrants represented by this Warrant Certificate
for or on behalf of any U.S. Person or person within the United States.
2. ¨
The undersigned hereby certifies that (i) it is an Accredited Investor
(as defined in Rule 501(a) under the U.S. Securities Act) that purchased the Warrants represented by this Warrant Certificate directly
from the Company for its own account, (ii) it is exercising the Warrants for its own account, and (iii) it remains an Accredited
Investor on the date of exercise of the Warrants.
Note: The Common Shares will not be registered
or delivered to a U.S. address unless the undersigned has checked box 2 above and satisfied the applicable requirements thereof.
A legend will be placed on any Common Shares issued pursuant to box 2 above to the effect that the Common Shares may not be transferred
except pursuant to an exemption from registration under the U.S. Securities Act and all applicable state securities laws.
The undersigned hereby directs that the
Common Shares be registered as follows:
Name(s) in full |
Address |
Number of Common Shares |
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DATED
this day
of ,
20 .
Name of Holder: |
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Signature of Holder |
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Mailing Address: |
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Instructions:
| 1. | The signature to the subscription must be the signature
of the person appearing on the face of the Warrant Certificate. |
| 2. | If there is more than one holder of the Warrants, all
holders must sign. |
| 3. | In the case of persons signing by a trustee, executor,
administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity,
the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of subscription
are being forwarded by mail, registered mail must be employed. |
SCHEDULE “C”
TRANSFER FORM
| TO: | Stellar Biotechnologies, Inc. |
332 E. Scott Street
Port Hueneme, California 93041
FOR VALUE RECEIVED,
the undersigned hereby sells, assigns and transfers unto
(name) (“Assignee”), of (address),
Warrants of STELLAR BIOTECHNOLOGIES, INC. (the “Company”) registered in the name of the undersigned
on the records of the Company represented by the within warrant certificate and irrevocably appoints
the attorney of the undersigned to transfer the said securities on the books or register with full power of substitution.
The undersigned hereby
certifies that, by assignment hereof, the Warrant and the shares of stock to be issued upon exercise of the Warrant are being acquired
for investment and that the Assignee will not offer, sell or otherwise dispose of the Warrant or any shares of stock to be issued
upon exercise thereof except under circumstances which will not result in a violation of the United States Securities Act of 1933,
as amended, or any United States state securities laws. Further, the Assignee has acknowledged that upon exercise of this Warrant,
the Assignee shall, if requested by the Company, confirm in writing, in a form satisfactory to the Company, that the shares of
stock so purchased are being acquired for investment and not with a view toward distribution or resale.
DATED this day
of ,
20 .
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(Witness) |
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(Signature of Registered Warrant Holder) |
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(Print name of Registered Warrant Holder) |
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Signature of transferor guaranteed by: |
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* |
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* Authorized Signature Number |
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NOTE: The signature of the Holder to this
assignment must correspond exactly with the name of the Holder as set forth on the face of this Warrant certificate in every particular,
without alteration or enlargement or any change whatsoever and the signature must be guaranteed by a Canadian chartered bank or
by a Canadian trust company or by a medallion signature guarantee from a member of a recognized Signature Medallion Guarantee Program.
Instructions:
| 1. | Signature of transferor must be the signature of the
person appearing on the face of the Warrant Certificate. |
| 2. | If there is more than one person appearing on the face
of the Warrant Certificate, all must sign. |
| 3. | If the Transfer of Warrants is signed by a trustee, executor,
administrator, curator, guardian, attorney, officer of a corporation or any person acting in a fiduciary or representative capacity,
the certificate must be accompanied by evidence of authority to sign satisfactory to the Company. |
| 4. | If the Warrant certificate and the form of transfer are
being forwarded by mail, registered mail must be employed. |
SCHEDULE I
PERSONAL INFORMATION ACKNOWLEDGEMENT
AND CONSENT
IN THE MATTER OF PERSONAL INFORMATION
PROVIDED TO STELLAR BIOTECHNOLOGIES, INC. (the “Corporation”)
TO BE COMPLETED BY ALL SUBSCRIBERS
“Personal Information” means any information
about the undersigned and includes information obtained from the undersigned through written or verbal means between the undersigned
and the Corporation, its agents or representatives.
ACKNOWLEDGEMENT AND CONSENT:
I, the undersigned, have read and understand the TSX
Personal Information Acknowledgement set out below.
I hereby consent to:
| (1) | the disclosure of my Personal Information to the TSX
Venture Exchange Inc. and its affiliates, authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively
referred to as “the Exchange”) as requested from the Exchange; |
| (2) | the collection, use and disclosure of my Personal Information
by the Exchange for the purposes described below under “TSX Personal Information Acknowledgement” or as otherwise
identified by the Exchange, from time to time; |
| (3) | the disclosure of my Personal Information to the British
Columbia Securities Commission and to any other applicable regulatory authority (collectively referred to as the “Regulatory
Authorities”) as requested from the Regulatory Authorities; and |
| (4) | the collection, use and disclosure of my Personal Information
by the Regulatory Authorities for such purposes as are identified by the Regulatory Authorities from time to time. |
DATED
the day
of ,
2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
TSX PERSONAL INFORMATION ACKNOWLEDGEMENT
TSX Venture Exchange Inc. and its affiliates,
authorized agents, subsidiaries and divisions, including the TSX Venture Exchange (collectively referred to as “the Exchange”)
collect Personal Information in certain Forms that are submitted by the individual and/or by an Issuer
or Applicant and use it for the following purposes:
| ● | to conduct background checks, |
| ● | to verify the Personal Information that has been provided about each individual, |
| ● | to consider the suitability of the individual to act as an officer, director, insider, promoter,
investor relations provider or, as applicable, an employee or consultant, of the Issuer or Applicant, |
| ● | to consider the eligibility of the Issuer or Applicant to list on the Exchange, |
| ● | to provide disclosure to market participants as to the security holdings of directors, officers,
other insiders and promoters of the Issuer, or its associates or affiliates, and includes information as to such individual’s
involvement with any other reporting issuers, issuers subject to a cease trade order or bankruptcy, as well as information respecting
penalties, sanctions or personal bankruptcies, to which such individual has been subject, as well as any conflicts of interest
that the individual may have with the Issuer, |
| ● | to detect and prevent fraud, |
| ● | to conduct enforcement proceedings, and |
| ● | to perform other investigations as required by and to ensure compliance
with all applicable rules, policies, rulings and regulations of the Exchange, securities legislation
and other legal and regulatory requirements governing the conduct and protection of the public markets in Canada. |
As part of
this process, the Exchange also collects additional Personal Information from other sources, including but not limited to, securities
regulatory authorities in Canada or elsewhere, investigative, law enforcement or self-regulatory organizations, regulations services
providers and each of their subsidiaries, affiliates, regulators and authorized agents, to ensure that the purposes set out above
can be accomplished.
The Personal Information the Exchange collects
may also be disclosed:
| (a) | to the agencies and organizations in the preceding paragraph,
or as otherwise permitted or required by law, and they may use it in their own investigations for the purposes described above;
and |
| (b) | on the Exchange’s website or through printed materials
published by or pursuant to the directions of the Exchange. |
The Exchange may from time
to time use third parties to process information and/or provide other administrative services. In this regard, the Exchange may
share the information with such third party service providers.
SCHEDULE II
ACCREDITED INVESTOR QUESTIONNAIRE
(Residents of the United States or United
States Accredited Investors)
The Subscriber understands
and agrees that the Securities have not been and will not be registered under the United States Securities Act of 1933, as amended
(the “1933 Act”), or applicable state securities laws, and the Securities are being offered and sold by Stellar
Biotechnologies, Inc. (the “Corporation”) to the Subscriber in reliance upon Rule 506 of Regulation D and/or
Section 4(a)(2) of the 1933 Act.
Capitalized terms used
in this Schedule II and defined in the Subscription Agreement to which the Schedule II is attached have the meaning defined in
the Subscription Agreement unless otherwise defined herein.
In order to determine
(i) whether an investment in the Corporation by the undersigned (the “Subscriber”) is suitable in light of the
Subscriber’s personal and financial position, and (ii) whether the Subscriber, either alone or with a representative, has
sufficient knowledge and experience in financial and business affairs to evaluate the merits and risks of the prospective investment
(the “Investment”) as described in the Subscription Agreement.
The Subscriber understands
that this questionnaire (this “Questionnaire”) is intended to enable the Corporation and Newport Coast Securities,
Inc., as placement agent (“Placement Agent”), to discharge their respective responsibilities under an exemption
from registration under the 1933 Act, and with respect to the Placement Agent, its obligations under applicable FINRA rules, and
thus the Corporation, the Placement Agent and their respective advisors will rely upon the information contained herein.
Accordingly, the undersigned
represents, warrants and covenants (which representations, warranties and covenants shall survive the Closing) to the Corporation
and the Placement Agent as follows:
(i) The
information contained herein is complete and accurate and may be relied upon by the Corporation and its advisors; and
(ii) The
Subscriber will notify the Corporation immediately of any material change in any information provided herein occurring prior to
the acceptance or rejection of a subscription agreement between the Corporation and the Subscriber.
The Subscriber understands
and agrees that, although the Corporation will use its best efforts to keep the information provided in the answers to this Questionnaire
strictly confidential, the Corporation may present this Certificate and the information provided in it by the Subscriber to such
parties as the Corporation deems advisable if called upon to establish the availability under any federal or state securities laws
of an exemption from registration or if the contents thereof are relevant to any issue in any action, suit, or proceeding to which
the Corporation is a party or by which it is or may be bound.
The
Subscriber realizes that this Certificate does not constitute an offer of securities by the Corporation, but rather is a
request for information.
Subscriber Information
INSTRUCTIONS: Please print or type all answers.
If the answer to any question is “none” or
“not applicable,” please so state.
Part A –
Personal Data For Subscribers who are NOT Natural
Persons:
(i.e., corporations, partnerships, limited liability
companies, trusts or other entities)
| 1. | Name of the Subscriber:
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| 2. | Tax Identification
No.: |
(Address where It received and accepted the offer
to purchase the Units):
_______________________________________________________________
_______________________________________________________________
Personal Data For Subscribers who ARE Natural
Persons:
(i.e., individuals)
| 5. | Name of the Subscriber:
|
(The address given must be your residence address where
you are registered to vote. Post office boxes and other addresses including addresses care of a representative will not be accepted).
_______________________________________________________________
| 10. | Home Telephone
Number: |
| 14. | Business Telephone
Number: |
| 17. | Education. Please describe your business or professional
education or training, listing any schools you have attended and degrees you have received: |
Dates |
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School |
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Degrees and Area of
Concentration (if any) |
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School |
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Degrees and Area of
Concentration (if any) |
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Part B — Financial Data and Investment
History
| 18. | Please state whether you are an “accredited
investor,” as such term is defined under the 1933 Act. |
Check the applicable category below:
_______ (a) A
“Bank” as defined in Section 3(a)(2) of the 1933 Act, or any savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the 1933 Act whether acting in its individual or fiduciary capacity;
_______ (b) Any
broker or dealer registered pursuant to Section 15 of the 1934 Act;
_______ (c) An
insurance company as defined in Section 2(13) of the 1933 Act;
_______ (d) An
investment company registered under the 1940 Act or a business development company as defined in Section 2(a)(48) of the 1940 Act;
_______ (e) A
“Small Business Investment Company” licensed by the U.S. Small Business Administration under Section 301(c) or (d)
of the Small Business Investment Act of 1958;
_______ (f) A
plan established and maintained by a state, or its political subdivisions, or any agency or instrumentality of a state or its political
subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000;
_______ (g) Any
employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association,
insurance company, or registered investment advisor, or if the employee benefit plan has total assets in excess of $5,000,000 or,
if a self-directed plan, with investment decisions made solely by persons that are Accredited Investors.
_______ (h) A
“Private Business Development Company” as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
_______ (i) An
organization described in Section 501(c)(3) of the Internal Revenue Code, corporation or similar business trust, or partnership,
not formed for the specific purpose of acquiring the Units, with total assets in excess of $5,000,000.
_______ (j) A
natural person whose individual net worth,* or joint net worth with that person’s spouse, at the time of purchase exceeds
$1,000,000.
_______ (k) A
natural person who had an individual income** in excess of $200,000 in each of the two most recent years or joint income with that
person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income
level in the current year.
_______ (l) A
trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the Units, whose purchase is
directed by a sophisticated person as described in Rule 506(b)(2)(ii) of Regulation D promulgated under the Act.
_______ (m) Any
entity in which all of the equity owners are Accredited Investors.***
* For purposes hereof, net worth shall be deemed to include
ALL of your assets, liquid or illiquid (excluding the value of your principal residence) MINUS any liabilities (including such
items as home mortgages and other debts and liabilities).
** For purposes hereof, the term “income” is
not limited to “adjusted gross income” as that term is defined for federal income tax purposes, but rather includes
certain items of income which are deducted in computing “adjusted gross income.” For Subscribers who are salaried employees,
the gross salary of such Subscribers, minus any significant expenses personally incurred by such Subscriber in connection with
earning the salary, plus any income from any other source including unearned income, is a fair measure of “income”
for purposes hereof. For Subscribers who are self-employed, “income” is generally construed to mean total revenues
received during the calendar year minus significant expenses incurred in connection with earning such revenues.
*** If the Subscriber intends to qualify under (m), then
all owners of the entity must complete a Subscription Agreement as an individual.
19. For
Subscribers Who are Natural Persons:
19A. Please provide your net worth
(together with your joint net worth including your spouse, if married) as of the time of your investment. Joint net worth is the
sum of the individual net worth of both spouses. The term is not limited to property which is jointly held in a formal sense (e.g.,
tenancy in common, tenancy by the entirety, or community property). In calculating net worth, all assets, such as home, home furnishings
and automobiles, less liabilities, should be considered.
________________________________________________________________________________________
19B. Please indicate (a) your individual income from
all sources for the calendar years 2011 and 2012 and estimated income for 2013 or (b) your joint income with your spouse from all
sources for the calendar years 2011 and 2012 and estimated income for 2013 (It is important that you check the highest applicable
amount; for guidance in computing “income” for purposes of this Subscription Agreement, see the notes at the end of
“Section B: Accredited Investor Status.”):
(a) individual
income:
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$200,000 |
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$300,000 |
|
$400,000 |
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$500,000 |
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to |
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to |
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to |
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and |
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$299,000 |
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$399,000 |
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$499,000 |
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over |
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2011 |
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2012 |
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2013 |
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(b) joint
income:
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$200,000 |
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$300,000 |
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$400,000 |
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$500,000 |
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to |
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to |
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to |
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and |
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$299,000 |
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$399,000 |
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$499,000 |
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over |
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2011 |
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2012 |
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2013 |
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20. For
ALL Subscribers:
20A. Following the time of your investment
in the Corporation, will you have adequate liquid assets (defined as cash, cash equivalents and freely marketable securities) to
meet your current needs and personal contingencies without considering the funds used to make the investment?
20B. Please indicate below any additional
matter of a financial nature that is relevant to an analysis of your financial position, including whether you have filed for or
been involved in personal bankruptcy proceedings within the past five years; whether there have been any lawsuits or claims pending
or threatened against you materially affecting your net worth as reported in this questionnaire; and whether other significant
liabilities have existed for which you may have been obligated:
20C. Have you invested in securities offered
through private placements in the last five years?
20D. Do you always make your own ultimate
decisions on your investments?
20E. Do you believe that you have sufficient
knowledge and experience in financial and business matters to evaluate the merits and risks of your investment in the Corporation?
20F. Have you used a purchaser representative
in connection with your investment in the Corporation (i.e., someone who has such knowledge and experience in financial and business
matters that he or she is capable of evaluating the merits and risks of your investment in the Corporation and whom you acknowledged
in writing during the course of your investment to be your purchaser representative)?
If yes, please provide name and contact information:
20G. Do
you understand that there is no guarantee of any financial return on this investment?
20H. Do
you understand that this investment is not liquid and the securities of the Corporation may not continue to be publicly traded?
20I. Do
you have adequate means of providing for your current needs and personal contingencies in view of the fact that this is not a liquid
investment and you may incur a complete loss of your entire investment?
20J. Are
you aware of the Corporation’s business affairs and financial condition, and have you acquired all such information about
the Corporation as you deem necessary and appropriate to enable you to reach an informed and knowledgeable decision to acquire
the Units?
20K. Do
you have a “pre-existing relationship” with the Corporation or any of its officers, managers or members?
(For purposes hereof, “Pre-existing relationship”
means any relationship consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent
Subscriber to be aware of the character, business acumen, and general business and financial circumstances of the person with whom
such relationship exists.)
If so, please indicate whether the relationship is
with the Corporation, and/or name the individual(s) with whom you have a pre-existing relationship and describe the relationship:
20L. In
order for the Corporation and its selling agents to comply with applicable anti-money laundering/U.S. Treasury Department Office
of Foreign Assets Control (“OFAC”) rules and regulations, Subscriber is required to provide the following information:
(i) Name
and address (including country) of the bank from which Subscriber’s payment to the Corporation is being wired (the “Wiring
Bank”):
____________________________________
____________________________________
____________________________________
____________________________________
(ii) Subscriber’s
wiring instructions at the Wiring Bank:
____________________________________
____________________________________
____________________________________
(iii) Is
the Wiring Bank located in the U.S. or another “FATF Country”*?
Yes No
(iv) Is
Subscriber a customer of the Wiring Bank?
Yes No
Part C — Additional Information
21. Subscribers
wishing to subscribe must provide the following additional information or documents:
For Subscribers who ARE Natural Persons:
| ______ | A government issued form of picture identification (e.g., passport or drivers license). |
| ______ | Proof of the individual’s current address (e.g., current utility bill), if not included in the form of picture
identification. |
For Funds of Funds or Entities that Invest on Behalf
of Third Parties:
| ______ | A certificate of due formation and organization and continued authorization to conduct business in the jurisdiction of its
organization (e.g., certificate of good standing). |
| ______ | An “incumbency certificate” attesting to the title of the individual executing these subscription materials on
behalf of the prospective subscriber. |
* As of
the date hereof, countries that are members of the Financial Action Task Force on Money Laundering (“FATF Country”)
are: Argentina, Australia, Austria, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong, Iceland, Ireland,
Italy, Japan, Luxembourg, Mexico, Kingdom of the Netherlands, New Zealand, Norway, Portugal, Russian Federation, Singapore, South
Africa, Spain, Sweden, Switzerland, Turkey, United Kingdom and the United States of America.
| ______ | A completed copy of a certification that the entity has adequate anti-money laundering policies
and procedures (“AML Policies and Procedures”) in place that are consistent with the USA PATRIOT Act,
OFAC and other relevant federal, state or non-U.S. anti- money laundering laws and regulations (with a copy of the entity’s
current AML Policies and Procedures to which such certification relates). |
| ______ | A letter of reference any entity not located in the U.S. or other FATF country, from the entity’s
local office of a reputable bank or brokerage firm that is incorporated, or has its principal place of business located, in the
U.S. or other FATF Country certifying that the prospective subscriber maintains an account at such bank/brokerage firm for a length
of time and containing a statement affirming the prospective Subscriber’s integrity. |
For all other Subscribers who are NOT Natural Persons:
| ______ | A certificate of due formation and organization and continued authorization to conduct business
in the jurisdiction of its organization (e.g., certificate of good standing). |
| ______ | An “incumbency certificate” attesting to the title of the individual executing these
subscription materials on behalf of the prospective Subscriber. |
| ______ | A letter of reference from the entity’s local office of a reputable bank or brokerage firm
that is incorporated, or has its principal place of business located, in the U.S. or other FATF Country certifying that the prospective
Subscriber maintains an account at such bank/brokerage firm for a length of time and containing a statement affirming the prospective
Subscriber’s integrity. |
| ______ | If the prospective Subscriber is a privately-held entity, a certified list of the names of every
person or entity who is directly or indirectly the beneficial owner of 25% or more of any voting or non-voting class of equity
interests of the Subscriber, including (i) country of citizenship (for individuals) or principal place of business (for entities)
and, (ii) for individuals, such individual’s principal employer and position. |
| ______ | If the prospective Subscriber is
a trust: |
a certified list of (i) the names of the current
beneficiaries of the trust that have, directly or indirectly, 25% or more of any interest in the trust, (ii) the name of the settlor
of the trust, (iii) the name(s) of the trustee(s) of the trust, and (iv) the country of citizenship (for individuals) or principal
place of business (for entities).
22. For
Subscribers who are Trusts (exclusively):
Certain trusts generally may not qualify as accredited Subscribers
except under special circumstances. Therefore, if you intend to purchase the shares of the Corporation’s securities in whole
or in part through a trust, please answer each of the following questions:
| 22A. | Is the trustee of the trust a national or state bank
that is acting in its fiduciary capacity in making the investment on behalf of the trust? |
Yes ¨ No
¨
Does this investment in the Corporation exceed 10% of
the trust assets?
Yes ¨ No
¨
22B. If the trust is a revocable
trust, please complete Question 1 below. If the trust is an irrevocable trust, please complete Question 2 below.
Can the trust be amended or revoked at any time by its
grantors:
Yes ¨ No
¨
If yes, please answer the following questions relating
to each grantor (please add sheets if necessary):
Grantor Name:
Net worth of grantor (including
spouse, if applicable), including home, home furnishings and automobiles exceeds $1,000,000?
Yes ¨ No
¨
OR
Income (exclusive of any income
attributable to spouse) was in excess of $200,000 for 2011 and 2012 and is reasonably expected to be in excess of $200,000 for
2013?
Yes ¨ No
¨
OR
Income (including income attributable
to spouse) was in excess of $300,000 for 2006 and 2007 and is reasonably expected to be in excess of $300,000 for 2008?
Yes ¨ No
¨
If the trust is an irrevocable trust, please answer
the following questions:
Please provide the name of each trustee:
Trustee Name:
Trustee Name:
A. Does
the trust have assets greater than $5 million?
Yes ¨ No
¨
B. Do
you have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of
an investment in the Corporation?
Yes ¨ No
¨
C. Indicate
how often you invest in:
Marketable Securities
Often ¨ Occasionally
¨ Seldom ¨ Never
¨
Restricted Securities
Often ¨ Occasionally
¨ Seldom ¨ Never
¨
Venture Capital Companies
Often ¨ Occasionally
¨ Seldom ¨ Never
¨
Signature Page to
STELLAR BIOTECHNOLOGIES, INC.
ACCREDITED INVESTOR QUESTIONNAIRE
The foregoing representations and warranties
are true and accurate as of the date of this Questionnaire and will be true and accurate as of Closing. If any such representations
and warranties shall not be true and accurate prior to Closing, the Subscriber shall give immediate written notice of such fact
to the Corporation.
The undersigned has executed this Certificate as of the
day of
, 2013.
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Signature of individual (if Subscriber is an individual) |
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Authorized signatory (if Subscriber is not an individual) |
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Name of Subscriber (please print) |
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Name of authorized signatory (please print) |
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Official capacity of authorized signatory (please print) |
SCHEDULE III
FORM 4C
CORPORATE PLACEE REGISTRATION FORM
This Form will remain on file with
the Exchange and must be completed if required under section 4(b) of Part II of Form 4B. The corporation, trust, portfolio manager
or other entity (the “Placee”) need only file it on one time basis, and it will be referenced for all subsequent Private
Placements in which it participates. If any of the information provided in this Form changes, the Placee must notify the Exchange
prior to participating in further placements with Exchange listed Issuers. If as a result of the Private Placement, the Placee
becomes an Insider of the Issuer, Insiders of the Placee are reminded that they must file a Personal Information Form (2A) or,
if applicable, Declarations, with the Exchange.
(a) Name:
(b) Complete
Address:
(c) Jurisdiction
of Incorporation or Creation:
2. |
(a) |
Is the Placee purchasing securities as a portfolio
manager: (Yes/No)?
|
|
(b) |
Is the Placee carrying on business as a portfolio manager outside of Canada: |
|
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(Yes/No)? |
| 3. | If the answer to 2(b) above was “Yes”, the
undersigned certifies that: |
| (a) | it is purchasing securities of an Issuer on behalf of
managed accounts for which it is making the investment decision to purchase the securities and has full discretion to purchase
or sell securities for such accounts without requiring the client’s express consent to a transaction; |
| (b) | it carries on the business of managing the
investment portfolios of clients through discretionary authority granted by those
clients (a “portfolio manager” business) in
[jurisdiction],
and it is permitted by law to carry on a portfolio manager business in that jurisdiction; |
| (c) | it was not created solely or primarily for the purpose
of purchasing securities of the Issuer; |
| (d) | the total asset value of the investment portfolios it
manages on behalf of clients is not less than $20,000,000; and |
| (e) | it has no reasonable grounds to believe, that any of
the directors, senior officers and other insiders of the Issuer, and the persons that carry on investor relations activities for
the Issuer has a beneficial interest in any of the managed accounts for which it is purchasing. |
| 4. | If the answer to 2(a). above was “No”,
please provide the names and addresses of Control Persons of the Placee: |
Name * |
City |
Province or State |
Country |
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* If the Control Person is not an individual, provide
the name of the individual that makes the investment decisions on behalf of the Control Person.
| 5. | Acknowledgement - Personal Information and Securities
Laws |
| (a) | “Personal Information” means any information
about an identifiable individual, and includes information contained in sections 1, 2 and 4, as applicable, of this Form. |
The undersigned hereby acknowledges and agrees that
it has obtained the express written consent of each individual to:
| (i) | the disclosure of Personal Information by the undersigned
to the Exchange (as defined in Appendix 6B) pursuant to this Form; and |
| (ii) | the collection, use and disclosure of Personal Information
by the Exchange for the purposes described in Appendix 6B or as otherwise identified by the Exchange, from time to time. |
| (b) | The undersigned acknowledges that it is bound by the
provisions of applicable Securities Law, including provisions concerning the filing of insider reports and reports of acquisitions. |
Dated
and certified (if applicable), acknowledged and agreed, at on ,
2013.
|
X |
|
(Name of Subscriber - please print) |
|
|
|
X |
|
(Authorized Signature) |
|
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|
|
(Official Capacity - please print) |
|
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|
|
(Please print name of individual whose signature appears above) |
THIS IS NOT A PUBLIC DOCUMENT
SCHEDULE IV
CERTAIN RISKS RELATING TO THE CORPORATION
THE UNITS OFFERED ARE HIGHLY SPECULATIVE
IN NATURE AND INVOLVE AN EXTREMELY HIGH DEGREE OF RISK, DUE TO, AMONG SEVERAL REASONS, THE NATURE OF THE CORPORATION’S BUSINESS
AND THE PRESENT STAGE OF RESEARCFH AND DEVELOPMENT. THE UNITS SHOULD BE PURCHASED ONLY BY INVESTORS WHO CAN AFFORD TO LOSE THEIR
ENTIRE INVESTMENT. THEREFORE, EACH PROSPECTIVE SUBSCRIBER SHOULD, PRIOR TO PURCHASE, CONSIDER VERY CAREFULLY THE FOLLOWING RISK
FACTORS, AS WELL AS ALL THE OTHER INFORMATION SET FORTH ELSEWHERE IN THIS SUBSCRIPTION AGREEMENT.
CERTAIN RISKS RELATING TO THE OPERATIONS
OF THE CORPORATION
| 1. | Research and Development of drugs and medical
products can be costly and require years of research and development activities. The Corporation is expending substantial
resources on research and development of its products and aquaculture technology. Much of the products and technology is at the
development stage, and may never be commercially successful. The Corporation’s future success will be in part dependent
upon the Corporation’s ability to successfully develop its products, the ability to obtain the required regulatory approvals,
the protection of its processes and products, and commercial acceptance of its products. |
| 2. | The Corporation may not achieve its projected development goals in the timeframes it announces
and expects. The Corporation has established certain developmental goals, and made public statements regarding the anticipated
timing of meeting its objectives. The timing of these events may be affected by various factors, including financial limitations,
progress and timing of third-party developmental activities, delays or failures of regulatory approvals and clinical trials, and
delays and failures in increasing KLH aquaculture and production. Any inability to meet its projected goals could have a negative
effect on the Corporation’s operations and financial position. |
| 3. | The Corporation may be unable to achieve certain
milestones associated with external partnerships. Certain of the Corporation’s agreements with third parties include
certain milestones the Corporation must meet in order to obtain payments and continue the partnership agreements. If the Corporation
were unable to achieve these milestones, it would have a negative effect on the Corporation’s operations and financial condition.
Additionally, it would likely curtail future development programs which would also have a negative effect on the Corporation’s
operations. |
| 4. | The Corporation depends on third parties for
its manufacturing operations. The Corporation is currently dependent upon a small number of contractors and locations
for its manufacturing capacity. The Corporation does not currently have backup manufacturing capacity for some of its key products.
If the Corporation is unable to retain its current contractors, or is unable to obtain new contractors to provide manufacturing
services, it will have a negative effect on the Corporation’s operations. These contract manufacturers provide services
to many biotechnology and research companies, and may not provide the quality, quantity, or costs required by the Corporation.
In addition, they may not be able to provide the services required on a schedule acceptable to the Corporation. These issues may
result in the Corporation being unable to manufacture its products in the required quantities or at an acceptable cost, which
would have a negative effect on the Corporation’s financial condition. |
| 5. | Rapid technological change could make the Corporation’s
products obsolete. New developments in products, methods or technology may negatively affect the development and sale
of some or all of the products utilizing the Corporation’s products and technology, and may render them obsolete. New product
development and/or modification is costly, requires significant research and development time and expense, and may not necessarily
result in the successful commercialization of any new product. If the Corporation is unable to enhance and improve its products,
or to develop and introduce new products that incorporate new technologies that achieve market acceptance, it may have a negative
effect on the Corporation’s operations and financial position. |
| 6. | Protection of Patents and Proprietary Rights
is limited. The Corporation’s success will depend in part on its ability to protect its proprietary rights and technologies.
The Corporation relies upon a combination of contractual arrangements, licenses, patents, trade secrets and know-how to protect
its proprietary technology and rights. These measures may not apply or may afford only limited protection. The Corporation may
not have adequate remedies for any infringement or funds to take action against those infringing, or that its trade secrets will
not otherwise become known or independently developed by competitors. There can be no assurance that any current or future patents
licensed by or applied for by the Corporation will be upheld, if challenged, or that the protections afforded will not be circumvented
by others. If the Corporation enters litigation in regards to its business or to protect or enforce its patents, it may involve
substantial expenditures and require significant management attention, even if the Corporation ultimately prevails. If the Corporation
is unable to protect its intellectual property rights, it may result in the loss of valuable technologies and undermine its competitive
position which would have a negative effect on the Corporation’s operations and financial position. |
| 7. | The Corporation competes with other companies
in KLH production and manufacturing. The Corporation competes with other companies in the production and sale of KLH and
suKLH for pharmaceutical use. The KLH and suKLH produced by the Corporation are not unique as ingredients for pharmaceutical use
from that produced by other companies. Many of these other companies, both public and private, have greater financial and personnel
resources than the Corporation, and have greater sales and marketing experience in the industry than the Corporation. If they
are able to produce and sell KLH and suKLH for less than the Corporation, it will have a negative effect on the Corporation's
ability to operate successfully and will have a negative effect on the Corporation's operations and financial position. |
| 8. | The Corporation is subject to substantial government
regulation. The Corporation is subject to various laws, regulations, regulatory actions and court decisions at the local,
state and federal level in the United States and other countries. Failure to obtain regulatory approvals or delays in obtaining
regulatory approvals by the Corporation, its collaborators, customers, vendors or service providers will adversely affect the
development or marketing of its products and services. Changes in the regulatory environment could adversely affect the ability
of the Corporation to attain its corporate objectives and obligations. Any new government regulation that affects biotechnology
companies or relate specifically to the Corporation’s processes and products may increase the Corporation’s costs
and price of its systems. These regulations may have a negative effect on the Corporation’s operations and financial condition. |
| 9. | The Corporation's customers face uncertainties
related to regulatory approval. A primary market for the Corporation's KLH products is for the use in the commercial manufacture
and sale of vaccines. The therapeutic drug industry is subject to significant government regulation, and many of the products
developed by the Corporation's customers that utilize Stellar's KLH are not yet approved for commercial sale. Before regulatory
approvals for the commercial sale of any products is granted, a drug must be demonstrated through preclinical testing and clinical
trials to be safe and effective for their intended use in humans. The process to determine safety and efficacy, including clinical
trials, is expensive and prolonged. The time necessary to complete these processes and trials and submit applications for the
regulatory approvals is difficult to predict and is subject to numerous factors, and these trials may not be successful. Larger
or later stage clinical trials may not produce the same results as earlier trials. Successful results in clinical trials may not
result in regulatory approval, due to certain factors including unacceptable side effects or safety issues. Even if regulatory
approval is granted for any drug or product that utilizes the Corporation's products, it will be subject to ongoing regulatory
requirements, which include registration, manufacturing, labeling, advertising and promotion, packaging, distribution, record
keeping and reporting, and storage. Manufacturing facilities are subject to continual review and inspection, and failure to meet
these regulatory requirements can interrupt delay, or shut down these facilities. Previously unknown problems may result in regulatory
restrictions on such products, including withdrawal from the marketplace. Delays in obtaining regulatory approvals for products
from third party customers which use the Corporation's products, or failure to obtain or maintain regulatory approvals altogether,
would have a negative effect on market demand for the Corporation's products, and have a negative effect on the Corporation's
operations and financial condition. |
| 10. | Even if the Corporation obtains marketing approval,
its products will be subject to ongoing regulatory review. If the Corporation or its partners receive regulatory
approval to market any product, they will be subject to ongoing regulatory requirements, which include registration, manufacturing,
labeling, advertising and promotion, packaging, distribution, record keeping and reporting, and storage. Manufacturing facilities,
both those operated by the Corporation and its vendors, are subject to continual review and inspection, and failure to meet these
regulatory requirements can interrupt delay, or shut down these facilities. Previously unknown problems with the Corporation's
products, or products produced by others which utilize the Corporation's products, may result in regulatory restrictions on such
products, including withdrawal from the marketplace. These factors could have a negative effect on the Corporation's operations
and financial condition. |
| 11. | The Corporation may not be able to manufacture
its products in commercial quantities, which would prevent it from marketing its products. Currently, the production
of KLH by the Corporation is limited, and it has not been determined if it is economic to manufacture KLH and related products
on a large scale. The Corporation contracts with third-party vendors for the manufacture of its products, and may be unable to
establish and maintain relationships with qualified manufacturers in order to produce sufficient supplies of its finished products.
If the Corporation were unable to produce economic quantities of its products, it would have a negative effect on the Corporation's
operations and financial condition. |
| 12. | The Corporation may not be able to meet demand
for KLH from either wild or internally raised sources. The Corporation is dependent upon a supply of California
giant keyhole limpets (Megathura crenulata) for KLH production. The range of keyhole limpets in the wild is limited, and due to
the lack of a regulated harvest, the wild stocks of M. crenulata are believed to be declining. If the wild stocks are depleted,
and the Corporation's hatchery and aquaculture operations are unable to produce sufficient supplies of captive M. crenulata to
meet demand, it would have a negative effect on the Corporation's operations and financial condition. |
| 13. | The Corporation has limited marketing, sales
and distribution experience. The Corporation and its personnel have limited experience in the marketing, sales and distribution
of diagnostic products. The Corporation may not be able to establish its marketing, sales and distribution capabilities itself,
or establish agreements with its collaborators, licensees or third parties to successfully perform these tasks. If the Corporation
contracts or makes arrangements with third parties for the sales and marketing of its products, Corporation revenues will be dependent
on the efforts of these third parties, whose efforts may not be successful. If the Corporation markets any of its products directly,
it must either internally develop or acquire a marketing and sales force, which would require substantial resources and management
attention. |
| 14. | The Corporation’s products, if approved,
may fail to achieve market acceptance. If the Corporation is successful in developing its products and receives the required
approvals from the applicable regulatory authorities, its products may not achieve market acceptance. The Corporation’s
intended products will compete with a number of drugs and other products currently available in the marketplace, as well as other
products currently under development from other pharmaceutical companies. The market acceptance of any of the Corporation’s
products will depend on a number of factors, including the demonstration and establishment of the efficacy and safety, as well
as their advantages over other alternative products. |
| 15. | The Corporation is subject to the risk of product
liability claims, for which it may not have, or be able to obtain, adequate insurance coverage. The Drug industry
is subject to product liability claims in the event of adverse effects, even in respect to products that have received regulatory
approval for commercial sale. Such claims might be made directly by consumers, healthcare providers or by pharmaceutical companies,
or others selling or utilizing the Corporation's products. Although the Corporation currently maintains liability insurance of
up to $2 million for its products, it may not be able to obtain or maintain sufficient and affordable insurance coverage for all
claims that may occur. Any product liability claims would require management attention and related costs, and would have a negative
effect on the Corporation's operations and financial condition. |
| 16. | The Corporation currently depends upon a limited
number of customers for almost all of its sales and contract income. Approximately 88% of the Corporation’s
commercial sales and contract income during fiscal year 2011 were from one customer, approximately 90% of commercial sales and
contract income during fiscal year 2012 were from two customers and approximately 75% of the Corporation’s commercial sales
and contract income during fiscal year 2013 (as at August 8, 2013) were from three customers. Any loss of a key customer, the
financial collapse or bankruptcy of a key customer, a significant reduction in purchases from a key customer or any nonperformance
by a key customer under a sales contract could have a negative effect on the Corporation’s operations and financial position. |
CERTAIN RISKS RELATING TO THE FINANCING OF THE
CORPORATION
| 1. | No Minimum Offering Amount. There is
no minimum offering amount with respect to the sale of the securities. As a result, we may not obtain all of the proposed proceeds
and may in fact receive substantially less than the maximum offering amount of $12,000,000 (of which up to $5,000,000 for the
Brokered Offering portion). As a result, we may receive less than may be required to implement all of our intended uses of such
proceeds, and may be required to modify our plans or to raise additional capital in a subsequent offering or more than one subsequent
offering. Funds will be made available to the Corporation immediately following each closing. Closings shall be held from time
to time following receipt and acceptance of subscriptions and with respect to the Brokered Offering, upon completion of closing
documents acceptable to the Agent. |
| 2. | The Shares and the Warrants are “restricted
securities” within the meaning of the U.S. federal securities laws and neither the Shares nor the Warrants are being
registered in connection with this offering. The Shares and the Warrants comprising each of the Units are considered
“restricted securities” within the meaning of the Securities Act of 1933 as currently amended (the “Securities
Act”) and will not be registered under the Securities Act or under the laws of any state or other jurisdiction. The
absence of such registration places severe limitations on the ability to resell the securities unless they are subsequently registered
under the Securities Act or an exemption from such registration exists. Furthermore, the Corporation is under no obligation to
register the securities at any time in the future. Common shares of the Corporation are extremely thinly traded and the Corporation
is under no obligation to maintain a public market for the trading of its securities. Consequently, holders of the Shares and
Warrants may not be able to readily liquidate their investment and, as such, holders must be able to bear the risk of the investment
for an indefinite period of time. |
| 3. | Management included a "Going Concern"
note in the financial statements. Management has included “going concern” disclosure as described in Note
1 of the Corporation's Consolidated Financial Statements for the year ended August 31, 2012. Without raising additional financial
resources or achieving profitable operations, there is substantial doubt about the ability of the Corporation to continue as a
going concern. If the Corporation is unable to meet these necessary requirements, it will not be able to fulfill its business
plan and be forced to reduce certain operations or cease operations altogether. |
| 4. | The Corporation has a history of net losses and
limited cash flow to sustain operations. The Corporation currently has limited revenue from product sales, and anticipates
its planned research and development expenditures, as well as its general and administrative expenses, will be greater than its
revenues for the foreseeable future. The Corporation has incurred net losses of ($5,196,696) in fiscal 2012 and ($3,597,279) in
fiscal 2011, and as of August 31, 2012 had an accumulated deficit of ($10,317,513) since inception. The Corporation has paid no
dividends on its shares since incorporation and does not anticipate doing so in the foreseeable future. The Corporation has historically
relied upon the sale of common shares to help fund its operations and meet its obligations. Any future additional equity financing
would cause dilution to current stockholders. If the Corporation does not have sufficient capital for its operations, management
would be forced to reduce or discontinue its activities which would have a negative effect on the Corporation’s operations
and financial condition. |
| 5. | The Corporation will require additional financing
which could result in substantial dilution to existing shareholders. The Corporation anticipates that it will require
additional funds to meet its anticipated obligations for fiscal 2013, which will likely require the sale of additional common
shares in order to raise funds required to meet its budgeted expenditures and obligations. Management currently estimates that
the Corporation's operations, including research and development, capital expenditures and general and administrative expenses,
will require approximately $3 million per year. The Corporation’s ongoing research and development activities are dependent
upon the Corporation’s ability to obtain the required funds, which is expected to include the sale of common shares, as
well as possible debt financings, joint-ventures, or other means. Such sources of financing may not be available on acceptable
terms, if at all. Failure to obtain such financing may result in delay or indefinite postponement of research and development
of the Corporation’s current and any future products. Any transaction involving the issuance of previously authorized but
unissued shares of common shares, or securities convertible into common shares, could result in dilution, possibly substantial,
to present and prospective holders of common shares. These financings may be on terms less favorable to the Corporation than those
obtained previously. |
| 6. | The Corporation finances a portion of its operations
through grants from the U.S. government, and failure to receive future grants could have a negative effect on the Corporation’s
operations. The Corporation has historically financed a portion of its operations through the receipt of monetary grants
made available through programs funded and administered by various United States Government departments, such as the National
Science Foundation and the Internal Revenue Service. The Corporation has filed for a total of approximately $300,000 in new grants
in fiscal year 2013. Failure by the Corporation to secure such governmental grants in the future would likely curtail future development
programs which would have a negative effect on the Corporation’s operations. |
CERTAIN RISKS RELATING TO AN INVESTMENT IN THE SECURITIES
OF THE CORPORATION
| 1. | The Corporation has a dependence upon key management
employees, the loss or absence of which could have a negative effect on the Corporation’s operations. The
Corporation strongly depends on the business and technical expertise of its management and key personnel, including President
and Chief Executive Officer Frank Oakes, Chief Financial Officer Scott Davis, and Executive Vice-President Darrell Brookstein.
There is little possibility that this dependence will decrease in the near term. The Corporation only has "at-will"
employment agreements with its key management employees and they are free to leave their employment with the Corporation at any
time. As the Corporation’s operations expand, additional general management resources will be required. The Corporation
may not be able to attract and retain additional qualified personnel and this would have a negative effect on the Corporation’s
operations. |
| 2. | The
market for the Corporation’s common shares has been subject to volume and price volatility which could negatively
affect a shareholder’s ability to buy or sell the Corporation’s shares. The market for the common shares of
the Corporation may be highly volatile for reasons both related to the performance of the Corporation or events pertaining to
the biopharmaceutical industry, as well as factors unrelated to the Corporation or its industry. During the fiscal year ended
August 31, 2012, the price of Stellar's common shares on the TSX Venture Exchange ranged from a high of CDN $0.69 to a low of
CDN $0.25. The Corporation’s common shares can be expected to be subject to volatility in both price and volume arising
from market expectations, announcements and press releases regarding the Corporation’s business, and changes in estimates
and evaluations by securities analysts or other events or factors. In recent years the securities markets in the United States
and Canada have experienced a high level of price and volume volatility, and the market price of securities of many companies,
particularly small- capitalization companies such as the Corporation, have experienced wide fluctuations that have not necessarily
been related to the operations, performances, underlying asset values, or prospects of such companies. For these reasons, the
price of the Corporation’s common shares can also be expected to be subject to volatility resulting from purely market forces
over which the Corporation will have no control. Further, despite the existence of a market for trading the Corporation’s
common shares in Canada, stockholders of the Corporation may be unable to sell significant quantities of common shares in the
public trading markets without a significant reduction in the price of the stock. |
| 3. | The Corporation could be deemed a passive foreign
investment company which could have negative consequences for U.S. investors. The Corporation could be classified
as a Passive Foreign Investment Company (“PFIC”) under the United States tax code. If the Corporation is declared
a PFIC, then owners of the Corporation’s common shares who are U.S. taxpayers generally will be required to treat any so-called
"excess distribution" received on its common shares, or any gain realized upon a disposition of common shares, as ordinary
income and to pay an interest charge on a portion of such distribution or gain, unless the taxpayer makes a qualified electing
fund ("QEF") election or a mark-to-market election with respect to the Corporation’s shares. A U.S. taxpayer who
makes a QEF election generally must report on a current basis its share of the Corporation’s net capital gain and ordinary
earnings for any year in which the Corporation is classified as a PFIC, whether or not the Corporation distributes any amounts
to its shareholders. |
| 4. | Broker-Dealers may be discouraged from effecting
transactions in our common shares because they are considered "Penny Stocks" and are subject to the Penny Stock
Rules. Rules 15g-1 through 15g-9 promulgated under the Securities Exchange Act of 1934, as amended, impose sales practice
and disclosure requirements on FINRA broker-dealers who make a market in "a penny stock". A penny stock generally includes
any equity security that has a market price of less than $5.00 per share that is not registered on certain national securities
exchanges or quoted on the NASDAQ system. The additional sales practice and disclosure requirements imposed upon broker-dealers
may discourage broker-dealers from effecting transactions in our shares, which could severely limit the market liquidity of the
shares and impede the sale of our shares in the secondary market. Under the penny stock regulations, a broker-dealer selling penny
stock to anyone other than an established customer or "accredited investor" under US securities laws must make a special
suitability determination for the purchaser and must receive the purchaser's written consent to the transaction prior to sale,
unless the broker-dealer or the transaction is otherwise exempt. In addition, the penny stock regulations require the broker-dealer
to deliver, prior to any transaction involving a penny stock, a disclosure schedule prepared by the US Securities and Exchange
Commission relating to the penny stock market, unless the broker-dealer or the transaction is otherwise exempt. A broker-dealer
is also required to disclose commissions payable to the broker-dealer and the registered representative and current quotations
for the securities. Finally, a broker-dealer is required to send monthly statements disclosing recent price information with respect
to the penny stock held in a customer's account and information with respect to the limited market in penny stocks. |
| 5. | As a “Foreign Private Issuer”, the
Corporation is exempt from the Section 14 Proxy Rules and Section 16 of the 1934 Securities Act. The submission
of proxy and annual meeting of shareholder information (prepared to Canadian standards) on Form 6-K may result in shareholders
having less complete and timely data. In addition, the Corporation's officers, directors and principal shareholders are exempt
from the short-swing insider disclosure and profit recovery provisions of Section 16 of the Exchange Act. The exemption from Section
16 rules regarding sales of common shares by insiders may result in shareholders having less data. |
| 6. | We
are governed by the corporate laws in British Columbia, Canada which in some cases have a different effect on shareholders
than the corporate laws in Delaware, United States. The material differences between the Business Corporations Act of
British Columbia (“BCBCA”) as compared to the Delaware General Corporation Law (the “DGCL”),
which may be of most interest to shareholders include the following: (i) for material corporate transactions (such as mergers
and amalgamations, other extraordinary corporate transactions, amendments to our articles) the BCBCA generally requires two-thirds
majority vote by shareholders, whereas DGCL generally only requires a majority vote of stockholders for similar material corporate
transactions; (ii) the quorum for shareholders meetings is not prescribed under the BCBCA and is only one person representing
5% of the issued shares under our articles, whereas under DGCL, quorum requires a minimum of one-third of the shares entitled
to vote to be present and companies’ certificates of incorporation frequently require a higher percentage to be present;
(iii) under the BCBCA a holder of 5% or more of our common shares can requisition a special meeting at which any matters that
can be voted on at our annual meeting can be considered, whereas the DGCL does not give this right; (iv) our articles require
two-thirds majority vote by shareholders to pass a special resolution for one or more directors to be removed, whereas DGCL only
requires the affirmative vote of a majority of the stockholders; however, many public company charters limit removal of directors
to a removal for cause; and (v) our articles may be amended by resolution of our directors to alter our authorized share structure,
including to (a) consolidate or subdivide any of our shares and (b) alter the identifying name of any of our shares, whereas
under DGCL, a majority vote by stockholders is generally required to amend a corporation’s certificate of incorporation
and a separate class vote may be required to authorize alterations to a corporation’s authorized share structure. |
| 7. | As a Canadian corporation, the Corporation is
not required to keep accounting records in compliance with United States generally accepted accounting principles.
The financial statements of the Corporation have been prepared in accordance with Canadian generally accepted accounting principles
(up to and including audited financial statements for the year ended August 31, 2011) and International Financial Reporting Standards
(financial statements subsequent to August 31, 2011), which differ in some respects from United States generally accepted accounting
principles and thus may not be comparable to financial statements of United States companies. |
Exhibit 10.18
Collaboration
Agreement
This collaboration
agreement (the “Agreement”) is entered into and effective as of December 7, 2013 (the “Effective Date”),
by and between Stellar Biotechnologies Inc., a California corporation (“SBI”), and Amaran Biotechnology Inc.,
a Taiwan corporation (“ABI”). SBI and ABI are referred to individually herein from time to time as a “Party,”
and collectively as the “Parties.”
Whereas,
SBI owns certain patents, know-how and other intellectual property rights for keyhole limpet hemocyanin (“KLH”)
formulation and manufacturing; and
Whereas,
SBI is engaged in the business of designing, developing and manufacturing KLH for conjugated cancer vaccines; and
Whereas,
ABI is engaged in the business of designing, developing and manufacturing KLH-conjugated OBI-822 drug product candidate (OBI-822)
based on the specifications of its customers; and
Whereas,
SBI and ABI desire to collaborate, on a non-commercial basis, to develop KLH formulations meeting the product specifications agreed
on by the Parties in connection with the possible future manufacture and commercial sale of OBI-822 ;
Now,
therefore, for good and valuable consideration, the Parties agree as follows:
1. Appendices.
The following appendices are attached to this Agreement, and are hereby incorporated as part of this Agreement:
| | Appendix A – Table of Contents of Appendix B-X |
Appendix B – Appendix B-X: Statement of Work
Appendix C – Nondisclosure Agreement
2. Development.
2.1 Purpose.
The purpose of this collaboration is to develop and evaluate methods for the manufacture of ABI’s OBI-822 using Stellar cGMP
grade keyhole limpet hemocyanin (“Stellar cGMP grade KLH”) to meet the regulatory requirements and specifications
provided by ABI and agreed upon by the Parties, and to produce certain KLH reference standards required by ABI. Additionally, the
goal of the collaboration project is to significantly reduce ABI’s cost of KLH and improve the yields in the commercial manufacture
of OBI-822.
2.2 Statement
of Work. SBI shall be responsible for the production and delivery of Stellar cGMP-grade KLH and non-GMP grade KLH manufactured
from aquaculture KLH in sub-unit forms (“Stellar KLH20-M”) for evaluation by ABI for suitability as a carrier
protein in OBI-822, and for method development, product formulation and process qualification for certain KLH reference standards
for evaluation by ABI. ABI shall be responsible for establishing the development objectives and product specifications. ABI may
assign work plan responsibilities to sub-contractors, including OBI Pharma, Inc. in accordance with Section 2.11 hereof. Whenever
required, these activities shall be performed in compliance with the U.S.A. Food and Drug Administration cGMP regulation guidelines
and with the objectives, specifications, milestones, schedule and deliverables as described in respective Statement of Work to
be attached as Appendix B-X.
2.3 Modifications
to Statement of Work. If the Parties desire any change in the specifications of products, the schedule or other aspects of
the collaboration, any such change shall be accomplished only by a written amendment to the respective Statement of Work. Any amendment
to any Statement of Work shall take effect no less than 30 days prior to the intended start date of each project contemplated by
that amended Statement of Work.
2.4 Deliverables.
On an ongoing basis (as available), SBI and ABI shall deliver to the other Party any and all test articles, data, and other documentation
as appropriate to permit prompt performance under this Agreement including summaries of data that such Party collects through its
testing of the intermediate or final test articles. All deliverables of test articles shall be delivered as mutually agreed upon
within the Timeline attached as Appendix B-X. All shipment of test articles between the Parties would be FCA (Incoterms
2000) to the receiving Party unless otherwise agreed upon in writing between the Parties in advance. All deliverables of test articles
shall be memorialized by a delivery confirmation that sets forth the nature and condition of the deliverables, the medium of delivery
and the date of delivery. The receiving Party shall countersign the delivery confirmation to indicate receipt of the contents described
therein.
2.5 Testing
of Deliverables. The deliverables under any Statement of Work will be inspected, tested, accepted, rejected, re-tested and
regression tested as required by the respective Statement of Work. In the event that any article delivered under this Agreement
is rejected by the receiving Party, reasons for rejection shall be stated in writing in reasonable detail and the delivering Party
shall use reasonable commercial efforts to correct any deficiencies or non-conformities, and resubmit the rejected items as promptly
as possible. Failure to provide notice of rejection in writing for any article within 14 (fourteen) business days after receipt
of a deliverable for which the Statement of Work does require acceptance testing, will constitute acceptance.
2.6 Standard
of Performance. SBI and ABI shall each devote such time and resources as reasonably necessary to timely accomplish the objectives
of this Agreement, and all services shall be accomplished in compliance with applicable laws and regulations. SBI and ABI shall
each perform its respective obligations, and shall fully cooperate and communicate with each other, in a reasonable and good faith
manner in order not to hinder or delay the services of the other Party, and in order to facilitate the prompt and satisfactory
completion of the Statement of Work. SBI and ABI shall each promptly notify the other in writing of any factor, occurrence or event
coming to its attention that may affect its ability to timely fulfill its obligations under this Agreement.
2.7 Regulatory
Compliance. ABI shall carry out all quality and clinical research, testing and studies relating to vaccine formulations that
include SBI test articles as required to obtain all regulatory approvals needed to import, market, sell or use SBI test articles.
SBI shall consult with and assist ABI as reasonably requested in making any necessary submissions or filings for regulatory approval.
SBI and ABI will each follow its own standard operating procedures for quality control through this development project; provided,
however, that quality control procedures applied to SBI’ test article in vaccine, should be no lower than the U.S.A. Food
and Drug Administration Code of Federal Regulations, Title 21 (21 CFR) Part 820 Quality System Regulation procedures, as amended
from time to time.
2.8 Limitation
on Services. Except as specifically provided in the Statement of Work or otherwise in this Agreement, the Parties have no obligation
to provide research, development, support, training, maintenance, product enhancements, modifications or other services for the
benefit of the other. Any such services must be agreed in the Statement of Work, or written amendment to this Agreement, signed
by both Parties.
2.9 Designated
Representatives. The following individuals shall be the primary representatives to manage and implement the collaboration (the
“Representatives”). The Representatives may be substituted from time to time by the respective employing Party
following notice given to the other Party, and provided that the substituted Representative holds substantially similar authority.
Meetings or conference calls of the Representatives shall be held as needed (but at least once every two weeks) at a time and location
mutually acceptable to each Party, in order to evaluate performance, to discuss problems and to set goals. Additionally Representatives
may appoint such other persons as the Parties may determine appropriate to form a Joint Steering Committee to meet from time to
time, but no less than quarterly to review progress of the projects.
|
SBI |
|
ABI |
Name: |
Catherine Brisson, Ph.D. |
|
Yu Hung Chiu, Ph.D. |
Title: |
Chief of Operations |
|
Technical Consultant/Director |
Email: |
cbrisson@stellarbiotech.com |
|
yuhungchiu@amaran.com.tw |
Phone: |
805-488-2147 |
|
858-232-3514 |
Fax: |
805-488-2889 |
|
|
2.10 Fees
and Expenses.
a. Labor
Expense. ABI shall pay SBI a quarterly labor expense fee of US$45,000 (tax included) per calendar quarter based upon the needs
during the Agreement, pro-rated for partial quarters, to fund the equivalent of the burdened salary for one manufacturing scientist
and one technician required for the implementation of this Agreement (the “Labor Expense”). The Labor Expense
shall be due and payable on the first day of each calendar quarter with the first payment within 30 days of the Effective Date.
The Labor Expense can be renegotiated based upon the needs of the contract and can be extended, amended or terminated (60 days’
notice required).
b. Direct
Cost Reimbursement. Subject to ABI’s prior approval in writing, ABI shall reimburse SBI for all direct costs for contract
expenses and specialty items specifically requested by ABI; and SBI shall reimburse ABI for all direct costs for contract expenses
and specialty items specifically requested by SBI in the execution of the provisions of this Agreement as specified in the work
plans of each respective Appendix B-X.
c. Expenses.
Each Party shall be responsible for its own project expenses and payment schedules as agreed and provided above or specified in
Appendix B-X. Neither Party shall have any responsibility for the payment or reimbursement of any expenses incurred by the
other Party outside of the Statement of Work of this Agreement, unless specified by another agreement between the Parties.
2.11 Use
of Subcontractors. Either Party shall have the right to subcontract services under this Agreement to reasonably qualified subcontractors,
subject to (a) the other Party’s prior written consent, which shall not be unreasonably withheld, and (b) the subcontractor
signing an appropriate nondisclosure agreement equivalent to the Nondisclosure Agreement attached as Appendix C. However,
the subcontracting of any services shall not diminish the contractual responsibility hereunder of the Party entering into such
relationship. The notice required by this paragraph shall include the name, address, contact information, scope of the services
subcontracted, and other pertinent information. Notwithstanding the foregoing or any other term of this Agreement, ABI covenants
and agrees that it shall not transfer or make available to any third party any Stellar Materials (as defined below) without the
express prior written consent of SBI.
3. Manufacture
and Supply.
3.1 KLH
Supply Agreement. In the event that the Parties determine to proceed with the manufacture, for commercial purposes, of ABI’s
OBI-822 using Stellar cGMP grade KLH, then SBI and ABI will in good faith negotiate the terms of a KLH supply agreement, with the
best efforts to complete and sign that agreement at least three months prior to the delivery by SBI to ABI the first commercial
lot of Stellar cGMP grade KLH produced for ABI under GMP and meeting the ABI specification. ABI shall use any KLH formulations
and test articles provided by SBI hereunder exclusively for evaluation purposes and shall not use any such materials for commercial
purposes.
4. Proprietary
Rights.
4.1 SBI/ABI
Intellectual Property. SBI and ABI shall retain ownership of all intellectual property presently owned by each, unless otherwise
agreed in this Agreement or in writing by both Parties. SBI shall retain all right, title and interest in Stellar KLH20-M, any
other KLH formulations and test articles provided by SBI hereunder, any precursors or components of any of the foregoing, and any
reformulations or improvements of any of the foregoing that are conceived of and/or reduced to practice for use as a KLH starting
material for OBI-822 or any ABI product during and as a result of the work conducted hereunder (collectively, “Stellar
Materials”).
4.2 Joint
Intellectual Property. Although it is not intended that SBI and ABI will jointly develop any intellectual property on test
article during the course of this collaboration hereunder, if any intellectual property is jointly developed, the Parties shall
attempt to negotiate ownership and licensing rights in good faith, depending on the technology being developed and the relative
interests and needs of the Parties. If no agreement can be reached on the allocation of ownership and licensing rights, then:
a. all
jointly conceived or developed Intellectual Property in or relating to Stellar Materials shall belong to SBI regardless of the
Party by whom such intellectual property was generated;
b. all
jointly conceived or developed intellectual property in or relating to OBI-822 drug product shall belong to ABI regardless of the
Party by whom such intellectual property was generated; and
c. any
other intellectual property that is jointly conceived or developed by SBI and ABI shall be jointly owned by SBI and ABI.
The Parties shall from time to time each
execute and deliver to the other assignments of intellectual property in order to effectuate the foregoing.
4.3 Nondisclosure.
SBI and ABI acknowledge and agree that each will have access to, become acquainted with, and receive confidential information of
the other in the course of performance of this collaboration hereunder. SBI and ABI hereby confirm and agree that the previously
signed mutual Nondisclosure Agreement attached hereto as Appendix C shall be included as part of this Agreement.
4.4 Collaboration
Data. Each Party shall use good scientific practices and shall comply in all material respects with applicable regulations
and customary good laboratory and clinical practices in the performance of the evaluation activities hereunder and under any Statement
of Work (including all data in the form required to be maintained under any applicable governmental regulations). Such records
shall comprise books, results, reports, research notes, charts, graphs, comments, computations, analyses, recordings, photographs,
computer programs and documentation thereof, computer information storage means, samples of materials and other graphic or written
data generated in connection with such evaluation activities. Any such data developed by employees of SBI, or others on behalf
of SBI, shall be owned by SBI (“SBI Data”) and any such data developed by
employees of ABI, or others on behalf of ABI, shall be owned by ABI (“ABI Data”).
For purposes of evaluation of mutual performance of the objectives defined in the Statement of Work and to support regulatory filings,
each Party shall provide summaries of its Data, to the extent reasonably required. Each Party shall maintain such data in confidence
in accordance with Section 4.3 above and Appendix C hereto and shall not use such data
of the other Party except to the extent otherwise permitted by this Agreement or consented by the other Party.
4.5 No
Other Technology Rights. Except as otherwise expressly provided in this Agreement, under no circumstances shall a Party hereto,
as a result of this Agreement, obtain any ownership interest in. license rights to use, or other right to any technology, know-how,
patents, pending patent applications, compounds, products or biological materials of the other Party, including items owned, controlled
or developed by the other Party, or transferred by the other Party to said Party at any time pursuant to this Agreement. [Note:
Deleted for repetition in Section 4.2(a).]
4.6 Warranties
and Representations. SBI and ABI each warrant and represent that:
a. It
shall not make any unauthorized use of any patents, copyrights, trade secrets, confidential information, or any other intellectual
property of any third party in performing under this Agreement;
b. It
shall own all rights, title and interest in and to the intellectual property, or it shall obtain valid and enforceable licenses
to the intellectual property.
c. It
has the right, power and authority to enter into and perform this Agreement and, by entering into this Agreement, it will not constitute
a breach or default under any license, agreement, contract, arrangement, judgment, decree, order, law, regulation or permit.
4.7 Indemnification.
SBI and ABI shall each indemnify, defend and hold harmless the other Party and its affiliates, officers, directors, managers and
employees against any and all claims, suits, actions or threats of action, liabilities, settlement amounts, damages, expenses or
costs of any kind whatsoever, including without limitation reasonable attorneys' fees and costs, which directly result from or
arise out of (a) any material inaccuracy of any representations or warranties made by the indemnifying Party under this Agreement,
(b) the indemnifying Party's material breach or failure to perform any provision of this Agreement that it is required to perform
and remain uncured per Section 5.2 hereof, or (c) the gross negligence or intentional misconduct of the indemnifying Party.
5. Termination
and Remedies.
5.1 Term.
This Agreement shall commence on the Effective Date. Unless earlier terminated in accordance with the provisions of this Agreement
or extended by a duly executed Statement of Work or other amendment of this Agreement that is executed by both Parties, this Agreement
shall continue in effect for twenty-four (24) months from the Effective Date. The expiration or earlier termination of this Agreement
shall not trigger the expiration or termination of any manufacture or supply agreement subsequently entered into between the Parties,
the terms of which agreement will be subject to its own provisions.
5.2 Termination
for Breach. Either Party may terminate this Agreement if the other Party materially breaches any of its duties or obligations
hereunder and such breach remains uncured for at least thirty (30) days after the non-breaching Party gives written notice of the
breach. Any such termination shall not constitute the sole remedy in the event of a breach.
5.3 No
Exclusive Remedy. Nothing in this Agreement is intended to limit any remedies available to either Party.
5.4 Survival.
The following Sections shall survive any expiration or termination of this Agreement: Sections 2.8, 2.10, 4.1 through 4.1 - 4.7,
5.3, 5.4, 6.1 and 7.1 through 7.11, and Appendix C.
6. Relationships.
6.1 Relationship.
Pursuant to the terms of this Agreement, SBI and ABI shall act in this collaboration as independent contractors. SBI and ABI shall
not be partners, of each other, and the collaboration shall not constitute a partnership, unincorporated association or any other
form of legal entity. No Party is authorized to, and shall not; enter into any contract or commitments in the name of, or on behalf
of, the other Party.
6.2 Business
Opportunities. Unless otherwise specified in this Agreement or any Statement of Work, SBI and ABI shall each be free to conduct
its own business and to pursue its own opportunities, regardless of any competition that may be created or furthered between the
Parties. Additionally, except as so specified, the Parties shall not have an obligation to disclose to the other any business opportunities
that may result from the activities generated by this Agreement or any Statement of Work.
6.3 Non-Transferability.
The Parties have carefully selected each other for this collaboration as a result of many factors including, without limitation,
technical expertise, credibility, integrity, reputation and business acumen. Therefore, subject to the Parties rights to engage
subcontractors pursuant to Section 2.11 hereof, no Party shall voluntarily or by operation of law, assign, hypothecate, give, transfer,
mortgage, or otherwise transfer or encumber all or any part of its rights, duties or other interests in this Agreement (collectively
“Assignment”), without the other Party’s prior written consent, which consent may be withheld at the sole
discretion of the non-assigning Party. Any attempt to make an Assignment in violation of this provision shall be a material breach
of this Agreement and any Assignment in violation of this provision shall be null and void. Notwithstanding the foregoing, this
Agreement shall be assignable as part of a bona fide transfer of all or substantially all of the assets or stock of a Party, or
a merger in which the Party is not the surviving entity.
7. General
Provisions.
7.1 Export.
Each Party shall comply with all applicable laws, regulations and restrictions of the United States concerning the export of products,
technical data and direct products thereof including, without limitation, all regulations regarding export, asset control and destination
control of the Commerce, Treasury, State and Defense Departments of the United States Government, and the Export Administration
Act of 1979, as amended from time to time.
7.2 Amendment.
No amendment or modification of this Agreement shall be binding on any of the Parties unless it is in writing and signed by each
of the Parties hereto at the time of the modification.
7.3 Successors.
Without limiting any restrictions on assignment contained in this Agreement, each and all of the provisions hereof shall be binding
on and inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
7.4 Dispute
Resolution. If any dispute arises between the Parties relating to the validity, construction, enforceability, or performance
of this Agreement, the aggrieved Party shall notify the other Party in writing of such dispute. If, within thirty (30) days after
such notice is deemed to have been received, the Parties have not succeeded in negotiating a resolution of the dispute, either
Party shall be free to proceed to arbitration the arbitration shall be conducted pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The Arbitrator shall, in rendering its decision, apply the substantive law of the State of
California without regard to its conflict of laws provisions, except that the interpretation of an enforcement of this section
shall be governed by the United States Federal Arbitration Act.
7.5 Warranty
Limitation. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY, AND EACH PARTY EXPRESSLY DISCLAIMS
ALL DISCLAIMS, ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO ANY COMPOUNDS OR OTHER BIOLOGICAL OR CHEMICAL MATERIALS OR INFORMATION PROVIDED TO THE OTHER PARTY PURSUANT TO THIS AGREEMENT.
7.6 Entire
Agreement. This Agreement and Appendices A, B-X, C constitute the entire agreement between the Parties.
There are no verbal representations between or among the Parties that are being relied upon by either of the Parties other than
those expressly set forth in this Agreement.
7.7 Notices.
All notices required to be given under this Agreement must be made in writing by (i) first-class mail, postage prepaid, certified,
return receipt, (ii) by regularly scheduled commercial delivery service, Federal Express or equivalent, (iii) by facsimile
followed immediately by first-class mail, or (iv) by personal delivery. Such notices will be deemed given five business days
after deposit with the postal service, three business days after deposit with the commercial carrier, or on the day of personal
delivery.
7.8 Severability.
If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason,
such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Agreement, and such provision shall
not affect the legality, enforceability, or validity of the remainder of this Agreement.
7.9 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
7.10 Waiver.
Any waiver must be in writing. No waiver of any provision or consent to any action shall constitute a waiver of any other provision
or consent to any other action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a waiver in the future except to the extent specifically set forth in writing. Any waiver given by a
Party shall be null and void if the Party requesting such waiver has not provided a full and complete disclosure of all material
facts relevant to the waiver requested.
7.11 Time
of Essence. For purposes of this Agreement, time is of the essence.
IN WITNESS WHEREOF,
each of the Parties hereto have executed this Agreement as of the date first set forth above.
Amaran Biotechnology, Inc. |
|
Stellar Biotechnologies, Inc. |
|
|
|
By: |
/s/ Tessie Che |
|
By: |
/s/ Frank Oakes |
|
Tessie Che |
|
|
Frank Oakes |
|
General Manager |
|
|
Chief Executive Officer |
Appendix A
Table of Contents of Statement of Work
To Collaboration Agreement
Appendix B-X |
|
Project Title |
Appendix B-1 |
|
Evaluation of 3 lots of subunit KLH for comparability study at OBI (Stellar KLH 20M) |
Appendix B-2 |
|
Reference Standard KLH Dimer (Aquaculture) |
Appendix B-3 |
|
Reference Standard KLH-1 Dimer (Aquaculture) |
Appendix B-4 |
|
Reference Standard KLH-2 Dimer (Aquaculture) |
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT
OF 2002
(18 U.S.C. SECTION 1350)
I, Frank R. Oakes, certify that:
| 1. | I have reviewed this Amendment No. 2 to the Annual Report
on Form 10-K of Stellar Biotechnologies, Inc. for the year ended August 31, 2014; |
| 2. | Based on my knowledge, the report does not contain any
untrue statement of a material fact or fail to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, and is not misleading with respect to the period covered by the report; |
| 3. | Based on my knowledge, the financial statements, and
other financial information included in the report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in the report; |
| 4. | The registrant’s other certifying officer and I
are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have: |
| a. | Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating
to the registrant, including its consolidated subsidiaries, was made known to us by others within those entities, particularly
during the period in which the report was being prepared; |
| b. | Designed such internal control over financial reporting,
or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles; |
| c. | Evaluated the effectiveness of the registrant’s
disclosure controls and procedures, and presented in the report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by the report based on such evaluation; and |
| d. | Disclosed in the report any change in the registrant’s
internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter covered by the
report (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or was reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I
disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a. | All significant deficiencies and material weaknesses
in the design or operation of internal control over financial reporting which were reasonably likely to adversely affect the registrant’s
ability to record, process, summarize and report financial information; and |
| b. | Any fraud, whether or not material, that involved management
or other employees who had a significant role in the registrant’s internal control over financial reporting. |
Date: September 9, 2015 |
By: |
/s/ Frank R. Oakes |
|
|
Frank R. Oakes |
|
|
President and Chief Executive Officer |
|
|
(Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT
OF 2002
(18 U.S.C. SECTION 1350)
I, Kathi Niffenegger, certify that:
| 1. | I have reviewed this Amendment No. 2 to the Annual Report
on Form 10-K of Stellar Biotechnologies, Inc. for the year ended August 31, 2014; |
| 2. | Based on my knowledge, the report does not contain any
untrue statement of a material fact or fail to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, and is not misleading with respect to the period covered by the report; |
| 3. | Based on my knowledge, the financial statements, and
other financial information included in the report, fairly present in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the periods presented in the report; |
| 4. | The registrant’s other certifying officer and I
are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the
registrant and have: |
| a. | Designed such disclosure controls and procedures, or
caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating
to the registrant, including its consolidated subsidiaries, was made known to us by others within those entities, particularly
during the period in which the report was being prepared; |
| b. | Designed such internal control over financial reporting,
or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles; |
| c. | Evaluated the effectiveness of the registrant’s
disclosure controls and procedures, and presented in the report our conclusions about the effectiveness of the disclosure controls
and procedures, as of the end of the period covered by the report based on such evaluation; and |
| d. | Disclosed in the report any change in the registrant’s
internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter covered by the
report (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or was reasonably
likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I
disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors
and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| a. | All significant deficiencies and material weaknesses
in the design or operation of internal control over financial reporting which were reasonably likely to adversely affect the registrant’s
ability to record, process, summarize and report financial information; and |
| b. | Any fraud, whether or not material, that involved management
or other employees who had a significant role in the registrant’s internal control over financial reporting. |
Date: September 9, 2015 |
By: |
/s/ Kathi Niffenegger |
|
|
Kathi Niffenegger |
|
|
Chief Financial Officer |
|
|
(Principal Financial Officer) |
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