Exhibit 10.1
(U.S. AND CANADIAN ACCREDITED PURCHASERS ONLY)
NONE OF THE SECURITIES TO WHICH THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
(THE "SUBSCRIPTION AGREEMENT") RELATES HAVE BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY U.S. STATE
SECURITIES LAWS, AND, UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD IN THE
UNITED STATES OR TO U.S. PERSONS (AS DEFINED HEREIN) EXCEPT PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS.
LIFE STEM GENETICS INC.
PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
ACCREDITED INVESTORS
INSTRUCTIONS TO PURCHASER
1. THIS SUBSCRIPTION FORM is for use by United States and Non-U.S. Accredited
Investors.
2. COMPLETE the information on page 2 of this Subscription Agreement.
3. COMPLETE the Canadian Questionnaire on page 15 to this Subscription
Agreement.
4. If a US resident, COMPLETE the Questionnaire attached on page 11.
5. All other information must be filled in where appropriate.
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PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT
TO: LIFE STEM GENETICS INC. (the "ISSUER")
Subject and pursuant to the terms set out in the Terms on page 3 of this
Subscription Agreement, the General Provisions on pages 5 to 10 of this
Subscription Agreement and the other schedules and appendices attached which are
hereby incorporated by reference, the Purchaser hereby irrevocably subscribes
for, and on Closing will purchase from the Issuer, the following securities at
the following price:
___________________ Units
USD$1.00 per Unit for a total purchase price of USD$_______
The Purchaser owns, directly or indirectly, the following securities of the
Issuer:
[CHECK IF APPLICABLE] The Purchaser is an affiliate of the Issuer or a
professional advisor of the Issuer.
The Purchaser directs the Issuer to issue, register and deliver the certificates
representing the Shares as follows:
REGISTRATION INSTRUCTIONS DELIVERY INSTRUCTIONS
----------------------------------- -----------------------------------------
Name to appear on certificate Name and account reference, if applicable
----------------------------------- -----------------------------------------
Account reference if applicable Contact name
----------------------------------- -----------------------------------------
Address Address
----------------------------------- -----------------------------------------
Telephone Number
EXECUTED BY THE PURCHASER THIS DAY OF NOVEMBER, 2013. BY EXECUTING THIS
SUBSCRIPTION AGREEMENT, THE PURCHASER CERTIFIES THAT THE PURCHASER AND ANY
BENEFICIAL PURCHASER FOR WHOM THE PURCHASER IS ACTING AS RESIDENT IN THE
JURISDICTION SHOWN AS THE "ADDRESS OF PURCHASER".
WITNESS: EXECUTION BY PURCHASER:
X
----------------------------------- -------------------------------------------
Signature of Witness Signature of individual (if Purchaser IS
an individual)
X
----------------------------------- -------------------------------------------
Name of Witness Authorized signatory (if Purchaser is
NOT an individual)
----------------------------------- -------------------------------------------
Address of Witness Name of Purchaser (PLEASE PRINT)
----------------------------------- -------------------------------------------
Name of authorized signatory (PLEASE PRINT)
Accepted this __ day of
November, 2013 -------------------------------------------
LIFE STEM GENETICS INC. Address of Purchaser (residence)
-------------------------------------------
Per: *Telephone Number
----------------------------------- -------------------------------------------
Authorized Signatory *E-mail address
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*Social Security/Insurance No./Gov ID No.:
* Required from all Purchasers
By signing this acceptance, the Issuer agrees to be bound by the Terms on page 3
of this Subscription Agreement, the General Provisions on pages 5 to 10 of this
Subscription Agreement and the other schedules and appendices incorporated by
reference. IF FUNDS ARE DELIVERED TO THE ISSUER'S LAWYERS, THEY ARE AUTHORIZED
TO RELEASE THE FUNDS TO THE ISSUER without further authorization from the
Purchaser.
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TERMS
REFERENCE DATE OF THIS
SUBSCRIPTION AGREEMENT November _____________, 2013 (the "AGREEMENT DATE")
THE OFFERING
THE ISSUER LIFE STEM GENETICS INC. (the "ISSUER")
OFFERING The offering consists of units ("UNITS") at $1.00
per Unit. Each Unit will consist of one common
share in the capital of the Issuer (each, a
"SHARE") and one half of one common share purchase
warrant (each whole warrant a "WARRANT") subject to
adjustment. Each Warrant shall entitle the holder
thereof to purchase one common share in the capital
stock of the Issuer (each, a "WARRANT SHARE"), as
defined below. The Warrants will be exercisable for
12 months following the Closing at $1.00 per share.
The Shares, Warrants and Warrant Shares are
individually and collectively referred to as the
"SECURITIES".
WARRANTS Exercisable for twelve (12) months from Closing at
an exercise price of USD$1.00 per share of common
stock.
PURCHASED SECURITIES The "PURCHASED SECURITIES" under this Subscription
Agreement are Shares, Warrants and the Warrant
Shares.
OFFERING RESTRICTIONS This offering is not subject to any minimum
offering.
ISSUE PRICE USD$1.00 per Unit.
SELLING JURISDICTIONS The Units may only be sold in jurisdictions where
they may be lawfully sold (the "SELLING
JURISDICTIONS") including, without limitation, all
provinces of Canada, but excluding the Province of
Quebec.
SECURITIES EXEMPTIONS The offering will be made in accordance with the
following prospectus registration exemptions:
(a) the Accredited Investor exemption as defined by
Regulation D promulgated under the 1933 Act; or
(b) the exemption afforded by Regulation S of the
1933 Act for offerings of securities in an offshore
transaction to persons who are not U.S. persons;
and
(c) the Accredited Investor exemption defined in
Canadian National Instrument 45-106; or
with the approval of the Issuer, such other
exemptions as may be available pursuant to the
securities laws of the Selling Jurisdictions.
CLOSING DATE On or before November __, 2013, or on such other
date determined by the Issuer in its discretion.
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RESALE RESTRICTIONS
AND LEGENDS The Purchaser acknowledges that the certificates
representing the Purchased Securities will bear the
following legends:
FOR US PURCHASERS:
"THE SECURITIES REPRESENTED HEREBY (and if a
warrant, the legend shall include the following:
AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF)
HAVE NOT BEEN 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 PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933
ACT OR: (A) TO THE ISSUER, (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 THEREUNDER, IF
AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS, OR (D) WITH THE PRIOR CONSENT OF
THE ISSUER, IN A TRANSACTION T HAT DOES NOT REQUIRE
REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE
STATE SECURITIES LAWS, AND THE HOLDER HAS FURNISHED
TO THE ISSUER AN OPINION TO SUCH EFFECT FROM
COUNSEL OF RECOGNIZED STANDING REASONABLY
SATISFACTORY TO THE ISSUER PRIOR TO SUCH OFFER,
SALE, PLEDGE OR TRANSFER."
FOR NON-U.S. PURCHASERS:
THIS PRIVATE PLACEMENT SUBSCRIPTION AGREEMENT (THE
"SUBSCRIPTION AGREEMENT") RELATES TO AN OFFERING OF
SECURITIES IN AN OFFSHORE TRANSACTION TO PERSONS
WHO ARE NOT U.S. PERSONS (AS DEFINED HEREIN)
PURSUANT TO REGULATION S UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT").
NONE OF THE SECURITIES TO WHICH THIS SUBSCRIPTION
AGREEMENT RELATES HAVE BEEN REGISTERED UNDER THE
1933 ACT, OR ANY U.S. STATE SECURITIES LAWS, AND,
UNLESS SO REGISTERED, NONE MAY BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR TO
U.S. PERSONS (AS DEFINED HEREIN) EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF REGULATION S
UNDER THE 1933 ACT, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND IN EACH CASE ONLY
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS.
Purchasers 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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GENERAL PROVISIONS
1. DEFINITIONS
1.1 In the Subscription Agreement (including the first (cover) page, the Terms
on page 3 and 4, these General Provisions and the other schedules,
questionnaires and appendices 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 Issuer (as defined on page 8) and all legislation incorporated
in the definition of this term in other parts of the 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" means the date on which the Closing occurs, which shall
be on or before November , 2013, or on such other date determined by
the Issuer in its discretion;
(e) "CLOSING YEAR" means the calendar year in which the Closing takes
place;
(f) "COMMISSIONS" means the Commissions with Jurisdiction over the Issuer
(as defined below) and the securities commissions incorporated in the
definition of this term in other parts of the Subscription Agreement;
(g) "FINAL CLOSING" means the last Closing under the Private Placement;
(h) "GENERAL PROVISIONS" means those portions of the Subscription
Agreement headed "GENERAL PROVISIONs" and contained on pages 5 to 10;
(i) "PRIVATE PLACEMENT" means the offering of the Units on the terms and
conditions of this Subscription Agreement;
(j) "PURCHASED SECURITIES" has the meaning assigned in the Terms;
(k) "REGULATORY AUTHORITIES" means the Commissions;
(l) "SECURITIES" has the meaning assigned in the Terms;
(m) "SUBSCRIPTION AGREEMENT" means the first (cover) page, the Terms on
pages 3 to 4, the General Provisions and the other schedules and
appendices incorporated by reference; and
(n) "TERMS" means those portions of the Subscription Agreement headed
"Terms" and contained on pages 3 to 4.
1.2 In the Subscription Agreement, the following terms have the meanings defined
in Regulation S under the 1933 Act: "DIRECTED SELLING EFFORTS", "FOREIGN
ISSUER", "OFFSHORE", "SUBSTANTIAL U.S. MARKET INTEREST", "U.S. PERSON" and
"UNITED STATES".
1.3 In the Subscription Agreement, unless otherwise specified, currencies are
indicated in U.S. dollars.
1.4 In the Subscription Agreement, other words and phrases that are capitalized
have the meanings assigned to them in the body hereof.
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2. ACKNOWLEDGEMENTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 ACKNOWLEDGEMENTS CONCERNING OFFERING
The Purchaser acknowledges that:
(a) the Securities have not been registered under the 1933 Act, or under
any state securities or "blue sky" laws of any state of the United
States, and are being offered only in a transaction not involving any
public offering within the meaning of the 1933 Act, and, unless so
registered, may not be offered or sold in the United States or to U.S.
Persons (as defined herein), except pursuant to an effective
registration statement under the 1933 Act, or pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the 1933 Act, and in each case only in accordance with
applicable state securities laws;
(b) the Issuer will refuse to register any transfer of the Securities not
made in accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the 1933 Act or pursuant to an
available exemption from, or in a transaction not subject to, the
registration requirements of the 1933 Act;
(c) the Issuer has not undertaken, and will have no obligation, to
register any of the Securities under the 1933 Act;
(d) the decision to execute this Subscription Agreement and purchase the
Units agreed to be purchased hereunder has not been based upon any
oral or written representation as to fact or otherwise made by or on
behalf of the Issuer and such decision is based entirely upon a review
of information (the "ISSUER INFORMATION") which has been provided by
the Issuer to the Purchaser. If the Issuer has presented a business
plan or any other type of corporate profile to the Purchaser, the
Purchaser acknowledges that the business plan, the corporate profile
and any projections or predictions contained in any such documents may
not be achieved or be achievable;
(e) the Purchaser and the Purchaser's advisor(s) have had a reasonable
opportunity to ask questions of and receive answers from the Issuer
regarding the Offering, and to obtain additional information, to the
extent possessed or obtainable without unreasonable effort or expense,
necessary to verify the accuracy of the information contained in the
Issuer Information, or any business plan, corporate profile or any
other document provided to the Purchaser;
(f) the books and records of the Issuer were available upon reasonable
notice for inspection, subject to certain confidentiality
restrictions, by the Purchaser during reasonable business hours at its
principal place of business and that all documents, records and books
pertaining to this Offering have been made available for inspection by
the Purchaser, the Purchaser's attorney and/or advisor(s);
(g) by execution hereof the Purchaser has waived the need for the Issuer
to communicate its acceptance of the purchase of the Units pursuant to
this Subscription Agreement;
(h) the Issuer is entitled to rely on the representations and warranties
and the statements and answers of the Purchaser contained in this
Subscription Agreement and in the Questionnaire, and the Purchaser
will hold harmless the Issuer from any loss or damage it may suffer as
a result of the Purchaser's failure to correctly complete this
Subscription Agreement or the Questionnaire;
(i) the Purchaser will indemnify and hold harmless the Issuer and, where
applicable, its respective directors, officers, employees, agents,
advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced
or threatened) arising out of or based upon any representation or
warranty of the Purchaser contained herein, the Questionnaire or in
any other document furnished by the Purchaser to the Issuer in
connection herewith, being untrue in any material respect or any
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breach or failure by the Purchaser to comply with any covenant or
agreement made by the Purchaser to the Issuer in connection therewith;
(j) the issuance and sale of the Units to the Purchaser will not be
completed if it would be unlawful or if, in the discretion of the
Issuer acting reasonably, it is not in the best interests of the
Issuer;
(k) the Purchaser has been advised to consult its own legal, tax and other
advisors with respect to the merits and risks of an investment in the
Units and with respect to applicable resale restrictions and it is
solely responsible (and the Issuer is in any way responsible) for
compliance with applicable resale restrictions;
(l) the Securities are not listed on any stock exchange or automated
dealer quotation system and no representation has been made to the
Purchaser that any of the Securities will become listed on any stock
exchange or automated dealer quotation system;
(m) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Securities ;
(n) no documents in connection with this Offering have been reviewed by
the SEC or any state securities administrators;
(o) there is no government or other insurance covering any of the
Securities ; and
(p) this Subscription Agreement is not enforceable by the Purchaser unless
it has been accepted by the Issuer, and the Purchaser acknowledges and
agrees that the Issuer reserves the right to reject any Subscription
for any reason..
2.2 REPRESENTATIONS BY THE PURCHASER
The Purchaser represents and warrants to the Issuer that, as at the Agreement
Date and at the Closing:
(a) the Purchaser is resident at the address indicated on page 2 hereof;
(b) the Purchaser has received and carefully read this Subscription
Agreement;
(c) the Purchaser has the legal capacity and competence to enter into and
execute this Subscription Agreement and to take all actions required
pursuant hereto and, if the Purchaser 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 obtained to authorize execution and
performance of this Subscription Agreement on behalf of the Purchaser;
(d) the Purchaser (i) has adequate net worth and means of providing for
its current financial needs and possible personal contingencies, (ii)
has no need for liquidity in this investment, and (iii) is able to
bear the economic risks of an investment in the Units for an
indefinite period of time, and can afford the complete loss of such
investment;
(e) the Purchaser is aware that an investment in the Issuer is speculative
and involves certain risks, including the possible loss of the
investment;
(f) the entering into of this Subscription Agreement and the transactions
contemplated hereby do not result in the violation of any of the terms
and provisions of any law applicable to, or, if applicable, the
constating documents of, the Purchaser, or of any agreement, written
or oral, to which the Purchaser may be a party or by which the
Purchaser is or may be bound;
(g) the Purchaser has duly executed and delivered this Subscription
Agreement and it constitutes a valid and binding agreement of the
Purchaser enforceable against the Purchaser;
(h) the Purchaser has the requisite knowledge and experience in financial
and business matters as to be capable of evaluating the merits and
risks of the investment in the Units and the Issuer, and the Purchaser
7
is providing evidence of such knowledge and experience in these
matters through the information requested in the Questionnaire;
(i) the Purchaser understands and agrees that the Issuer and others will
rely upon the truth and accuracy of the acknowledgements,
representations and agreements contained in this Subscription
Agreement, and agrees that if any of such acknowledgements,
representations and agreements are no longer accurate or have been
breached, the Purchaser shall promptly notify the Issuer;
(j) all information contained in the Questionnaire is complete and
accurate and may be relied upon by the Issuer, and the Purchaser will
notify the Issuer immediately of any material change in any such
information occurring prior to the Closing of the purchase of the
Securities ;
(k) the Purchaser is purchasing the Units for its own account for
investment purposes only and not for the account of any other person
and not for distribution, assignment or resale to others, and no other
person has a direct or indirect beneficial interest is such Units, and
the Purchaser has not subdivided his interest in the Units with any
other person;
(l) the Purchaser is not an underwriter of, or dealer in, the common
shares of the Issuer, nor is the Purchaser participating, pursuant to
a contractual agreement or otherwise, in the distribution of the
Securities ;
(m) the Purchaser has made an independent examination and investigation of
an investment in the Units and the Issuer and has depended on the
advice of its legal and financial advisors and agrees that the Issuer
will not be responsible in anyway whatsoever for the Purchaser's
decision to invest in the Units and the Issuer;
(n) if the Purchaser is acquiring the Units as a fiduciary or agent for
one or more investor accounts, the investor accounts for which the
Purchaser acts as a fiduciary or agent satisfy the definition of an
"Accredited Investor", as the term is defined under Regulation D of
the 1933 Act;
(o) if the Purchaser is acquiring the Units as a fiduciary or agent for
one or more investor accounts, the Purchaser has sole investment
discretion with respect to each such account, and the Purchaser has
full power to make the foregoing acknowledgements, representations and
agreements on behalf of such account;
(p) the Purchaser is not aware of any advertisement of any of the Units
and is not acquiring the Units as a result of any form of general
solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or
any seminar or meeting whose attendees have been invited by general
solicitation or general advertising; and
(q) no person has made to the Purchaser any written or oral
representations:
(i) that any person will resell or repurchase any of the Securities ;
(ii) that any person will refund the purchase price of any of the
Securities ;
(iii) as to the future price or value of any of the Securities; or
(iv) that any of the Securities will be listed and posted for trading
on any stock exchange or automated dealer quotation system or
that application has been made to list and post any of the
Securities of the Issuer on any stock exchange or automated
dealer quotation system.
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2.3 RELIANCE, INDEMNITY AND NOTIFICATION OF CHANGES
The representations and warranties in the Subscription Agreement (including the
first (cover) page, the Terms, the General Provisions and the other schedules
and appendices incorporated by reference) are made by the Purchaser with the
intent that they be relied upon by the Issuer in determining its suitability as
a purchaser of Purchased Securities, and the Purchaser hereby agrees to
indemnify the Issuer 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 Purchaser undertakes to notify the Issuer immediately of any change
in any representation, warranty or other information relating to the Purchaser
set forth in the Subscription Agreement (including the first (cover) page, the
Terms, the General Provisions and the other schedules and appendices
incorporated by reference) which takes place prior to the Closing.
2.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in this Section will survive the
Closing.
3. ISSUER'S ACCEPTANCE
The Subscription Agreement, when executed by the Purchaser, and delivered to the
Issuer, will constitute a subscription for Units which will not be binding on
the Issuer until accepted by the Issuer by executing the Subscription Agreement
in the space provided on the face page(s) of the Agreement and, notwithstanding
the Agreement Date, if the Issuer accepts the subscription by the Purchaser, the
Subscription Agreement will be entered into on the date of such execution by the
Issuer.
4. CLOSING
4.1 On or before the end of the business day before the Closing Date, the
Purchaser will deliver to the Issuer the Subscription Agreement and all
applicable schedules and required forms, duly executed, and payment in full for
the total price of the Purchased Securities to be purchased by the Purchaser.
4.2 At Closing, the Issuer will deliver to the Purchaser the certificates
representing the Purchased Securities purchased by the Purchaser registered in
the name of the Purchaser or its nominee, or as directed by the Purchaser.
5. MISCELLANEOUS
5.1 The Purchaser 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 the Subscription Agreement.
5.2 The Purchaser hereby authorizes the Issuer to correct any minor errors in,
or complete any minor information missing from any part of the Subscription
Agreement and any other schedules, forms, certificates or documents executed by
the Purchaser and delivered to the Issuer in connection with the Private
Placement.
5.3 The Issuer may rely on delivery by fax machine of an executed copy of this
subscription, and acceptance by the Issuer of such faxed copy will be equally
effective to create a valid and binding agreement between the Purchaser and the
Issuer in accordance with the terms of the Subscription Agreement.
5.4 Without limitation, this subscription and the transactions contemplated by
this Subscription Agreement are conditional upon and subject to the Issuer's
having obtained such regulatory approval of this subscription and the
transactions contemplated by this Subscription Agreement as the Issuer considers
necessary.
5.5 This Subscription Agreement is not assignable or transferable by either
party 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.
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
9
other terms, conditions, representations or warranties whether expressed,
implied, oral or written, by statute, by common law, by the Issuer, 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 Ontario (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 the State of Nevada with
respect to any dispute related to this Subscription Agreement.
End of General Provisions
10
UNITED STATES
ACCREDITED INVESTOR QUESTIONNAIRE
All capitalized terms herein, unless otherwise defined, have the meanings
ascribed thereto in the Subscription Agreement.
This Questionnaire is for use by each Purchaser who is a US person (as that term
is defined Regulation S of the United States Securities Act of 1933 (the "1933
Act")) and has indicated an interest in purchasing Shares of the Issuer. The
purpose of this Questionnaire is to assure the Issuer that each Purchaser will
meet the standards imposed by the 1933 Act and the appropriate exemptions of
applicable state securities laws. The Issuer will rely on the information
contained in this Questionnaire for the purposes of such determination. The
Securities will not be registered under the 1933 Act in reliance upon the
exemption from registration afforded by Section 3(b) and/or Section 4(2) and
Regulation D of the 1933 Act. This Questionnaire is not an offer of the
Securities or any other securities of the Issuer in any state other than those
specifically authorized by the Issuer.
All information contained in this Questionnaire will be treated as confidential.
However, by signing and returning this Questionnaire, each Purchaser agrees
that, if necessary, this Questionnaire may be presented to such parties as the
Issuer deems appropriate to establish the availability, under the 1933 Act or
applicable state securities law, of exemption from registration in connection
with the sale of the Securities hereunder.
The Purchaser covenants, represents and warrants to the Issuer that it satisfies
one or more of the categories of "Accredited Investors", as defined by
Regulation D promulgated under the 1933 Act, as indicated below: (Please initial
in the space provide those categories, if any, of an "Accredited Investor" which
the Purchaser satisfies.)
____ Category 1 An organization described in Section 501(c)(3) of the United
States Internal Revenue Code, a corporation, a Massachusetts
or similar business trust or partnership, not formed for the
specific purpose of acquiring the Securities, with total
assets in excess of US $5,000,000.
____ Category 2 A natural person whose individual net worth, or joint net
worth with that person's spouse (excluding their primary
residence), on the date of purchase exceeds US $1,000,000.
____ Category 3 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 $360,000 in
each of those years and has a reasonable expectation of
reaching the same income level in the current year.
____ Category 4 A "bank" as defined under Section (3)(a)(2) of the 1933 Act
or savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the 1933 Act acting in its
individual or fiduciary capacity; a broker dealer registered
pursuant to Section 15 of the SECURITIES EXCHANGE ACT OF
1934 (United States); an insurance Issuer as defined in
Section 2(13) of the 1933 Act; an investment Issuer
registered under the INVESTMENT ISSUER ACT OF 1940 (United
States) or a business development Issuer as defined in
Section 2(a)(48) of such Act; a Small Business Investment
Issuer licensed by the U.S. Small Business Administration
under Section 361(c) or (d) of the SMALL BUSINESS INVESTMENT
ACT OF 1958 (United States); a plan with total assets in
excess of $5,000,000 established and maintained by a state,
a political subdivision thereof, or an agency or
instrumentality of a state or a political subdivision
thereof, for the benefit of its employees; an employee
benefit plan within the meaning of the EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974 (United States) whose investment
decisions are made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings
and loan association, insurance Issuer or registered
investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000, or, if a self-directed
plan, whose investment decisions are made solely by persons
that are accredited investors.
____ Category 5 A private business development Issuer as defined in Section
202(a)(22) of the INVESTMENT ADVISERS ACT OF 1940 (United
States).
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____ Category 6 A director or executive officer of the Issuer.
____ Category 7 A trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Securities,
whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) under the 1933 Act.
____ Category 8 An entity in which all of the equity owners satisfy the
requirements of one or more of the foregoing categories.
Note that prospective Purchaser claiming to satisfy one of the above categories
of Accredited Investor may be required to supply the Issuer with a balance
sheet, prior years' federal income tax returns or other appropriate
documentation to verify and substantiate the Purchaser's status as an Accredited
Investor.
If the Purchaser is an entity which initialled Category 8 in reliance upon the
Accredited Investor categories above, state the name, address, total personal
income from all sources for the previous calendar year, and the net worth
(exclusive of home, home furnishings and personal automobiles) for each equity
owner of the said entity:
PURCHASER'S ACKNOWLEDGEMENTS. The Purchaser acknowledges and agrees (on its own
behalf and, if applicable, on behalf of each beneficial purchaser for whom the
Purchaser is contracting hereunder) with the Issuer, the U.S. Affiliates and the
Agents (which acknowledgements and agreements shall survive the Closing) that:
(a) no agency, governmental authority, regulatory body, stock exchange or
other entity has made any finding or determination as to the merit for
investment of, nor have any such agencies or governmental authorities,
regulatory bodies, stock exchanges or other entities made any
recommendation or endorsement with respect to, the Securities;
(b) the sale and delivery of the Securities is conditional upon such sale
being exempt from the prospectus filing and registration requirements,
and being exempt from the requirement to deliver an offering
memorandum in connection with the distribution of the Securities under
the applicable securities laws or upon the issuance of such orders,
consents or approvals as may be required to permit such sale without
the requirement of filing a prospectus or registration statement;
(c) none of the Securities have been or will be registered under the 1933
Act or the securities laws of any state and the Securities may not be
offered or sold, directly or indirectly, in the United States to, or
for the account or benefit of, a U.S. Person or a person in the United
States unless registered under the 1933 Act and the securities laws of
all applicable states or unless an exemption from such registration
requirements is available, and the Issuer has no obligation or present
intention of filing a registration statement under the U.S. Securities
Act in respect of any of the Securities ;
(d) the Purchaser may not offer, sell or transfer the Securities within
the United States or to, or for the account or benefit of, a U.S.
Person, unless the Securities are registered under the 1933 Act and
the securities laws of all applicable states or an exemption from such
registration requirements is available;
(e) the acquisition of the Securities has not been made through or as a
result of any "general solicitation or general advertising" (as such
terms are used in Rule 502(c) of Regulation D) the distribution of the
Securities has not been accompanied by any advertisement, including,
without limitation, in printed public media, radio, television or
telecommunications, including electronic display, or as part of a
general solicitation;
(f) the certificates evidencing the Securities will bear a legend, and the
certificates evidencing the Warrant Shares may bear a legend,
regarding restrictions on transfer as required pursuant to applicable
Securities Laws, including applicable federal and state securities
laws of the United States;
(g) the Issuer is relying on an exemption from the requirements to provide
the Purchaser with a prospectus or registration statement and to sell
securities through a person or Issuer registered to sell securities
12
under the securities laws or other applicable securities legislation
and, as a consequence of acquiring Securities pursuant to this
exemption, certain protections, rights and remedies provided by the
securities laws or other applicable securities legislation including
statutory rights of rescission or damages, will not be available to
the Purchaser; and
(h) no person has made to the Purchaser 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;
or
(iii) as to the future price or value of any of the Securities.
REPRESENTATIONS, WARRANTIES AND COVENANTS. The Purchaser hereby represents and
warrants to, and covenants with the Issuer which representations, warranties and
covenants shall survive the Closing, that as at the execution date of
certificate and the Closing Date:
(a) it acknowledges that the Issuer has not filed a prospectus or
registration statement with any of the securities regulators or any
other securities commission or similar authority in connection with
the distribution of the Securities and that:
(i) the Purchaser is restricted from using most of the civil remedies
available under the applicable securities laws;
(ii) the Purchaser may not receive information that would otherwise be
required to be provided to him under the applicable securities
laws;
(iii)the Purchaser is relieved from certain obligations that it would
otherwise be required to give if it provided a prospectus or
registration statement under the applicable securities laws; and
(iv) the issuance and sale of the Securities to the Purchaser is
subject to the sale being exempt from the prospectus and
registration requirements of the applicable securities laws.
(b) the Purchaser further acknowledges that:
(i) no securities commission or similar regulatory authority has
reviewed or passed on the merits of the Securities ;
(ii) there is no government or other insurance covering the
Securities;
(iii)there are risks associated with the purchase of the Securities;
and
(iv) there are restrictions on the Purchaser's (or beneficial
purchaser's, if applicable) ability to re-sell the Securities and
it is the responsibility of the Purchaser to find out what those
restrictions are and to comply with them before selling the
Securities;
(c) if required by applicable Securities Laws, and any other applicable
law the Purchaser will execute, deliver, file and otherwise assist the
Issuer in filing such reports, undertakings and other documents with
respect to the issuance of the Securities as may be required.
(d) The Purchaser understands that the Securities are restricted
securities (as defined in Rule 144 under the 1933 Act) and agrees 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 Issuer;
13
(ii) The transfer is outside the United States in a transaction
meeting the requirements of Rule 904 of Regulation S under the
1933 Act ("REGULATION S") and in compliance with applicable local
laws and regulations of the jurisdiction(s) in which such sale is
made;
(iii)the transfer is made pursuant to the exemption from t he
registration requirements under the 1933 Act provided by Rule 144
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
securities laws, and the Purchaser has prior to such sale
furnished to the Issuer an opinion of counsel of recognized
standing or other evidence of exemption, in either case
reasonably satisfactory to the Issuer; and
(e) the Purchaser understands and acknowledges 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
securities laws and regulations, the certificates representing the
Securities, and all securities issued in exchange therefore or in
substitution thereof, will bear a legend in substantially the
following form:
"THE SECURITIES REPRESENTED HEREBY (and if a warrant, the
legend shall include the following: AND THE SECURITIES
ISSUABLE UPON EXERCISE HEREOF) HAVE NOT BEEN 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 PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR: (A)
TO THE ISSUER, (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
THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE
STATE SECURITIES LAWS, OR (D) WITH THE PRIOR CONSENT OF THE
ISSUER, IN A TRANSACTION T HAT DOES NOT REQUIRE REGISTRATION
UNDER THE 1933 ACT OR ANY APPLICABLE STATE SECURITIES LAWS,
AND THE HOLDER HAS FURNISHED TO THE ISSUER AN OPINION TO
SUCH EFFECT FROM COUNSEL OF RECOGNIZED STANDING REASONABLY
SATISFACTORY TO THE ISSUER PRIOR TO SUCH OFFER, SALE, PLEDGE
OR TRANSFER."
The Purchaser hereby certifies that the information contained in this
Questionnaire is complete and accurate and the Purchaser will notify the Issuer
promptly of any change in any such information. If this Questionnaire is being
completed on behalf of a corporation, partnership, trust or estate, the person
executing on behalf of the Purchaser represents that it has the authority to
execute and deliver this Questionnaire on behalf of such entity.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
_____ day of November, 2013.
If a Corporation, Partnership or If an Individual:
Other Entity:
----------------------------------- -----------------------------------
Print of Type Name of Entity Signature
----------------------------------- -----------------------------------
Signature of Authorized Signatory Print or Type Name
----------------------------------- -----------------------------------
Type of Entity Social Security/Tax I.D. No.
14
DECLARATION OF REGULATION S
ELIGIBILITY QUESTIONNAIRE
Regulation S of the United States Securities Act of 1933, as amended
("SECURITIES ACT") is available for the use of non-U.S. Persons only. This
Declaration must be answered fully and returned to LIFE STEM GENETICS INC. (the
"COMPANY") to ensure the Company is in compliance with the Securities Act in
connection with the proposed acquisition of securities of the Company (the
"SECURITIES") by the Purchaser (as defined below). All information will be held
in the strictest confidence and used only to determine investor status. No
information will be disclosed other than as required by law or regulation, other
demand by proper legal process or in litigation involving the Company or its
affiliates, controlling persons, officers, directors, partners, employees,
shareholders, attorneys or agents.
I, _________________________________ (THE "PURCHASER"), HEREBY AFFIRM AND
DECLARE THAT:
1. The Purchaser is not a "US Person," as such term is defined in Rule 902(k)
of Regulation S which, without restricting the generality of such
definition, includes
(a) a natural person resident in the United States,
(b) a partnership or corporation organized or incorporated under the laws
of the United States,
(c) an estate of which any executor or administrator is a U.S. Person,
(d) a trust of which any trustee is a U.S. Person,
(e) a non-discretionary account or similar account (other than an estate
or trust) held by a dealer or other fiduciary for the benefit of a
U.S. Person,
(f) a discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or
(if an individual) resident in the United States, and
(g) a partnership or corporation if
(i) organized or incorporated under the laws of any foreign
jurisdiction, and
(ii) formed by a U.S. Person principally for the purpose of investing
in securities not registered under the 1933 Act, unless it is
organized or incorporated, and owned, by `Accredited Investors'
who are not natural persons, estates or trusts..
2. The Purchaser is not purchasing the Securities for the benefit of a US
Person.
3. The Purchaser is not purchasing the Securities in the name of a company
incorporated in the United States of America or for the benefit of a
company incorporated in the United States of America.
4. The Purchaser is not purchasing the Securities in its capacity as trustee
for a U.S.-based trust.
5. The Purchaser is not purchasing the securities in its capacity as an
executor or administrator of the estate of a U.S. resident.
6. The Purchaser is not a U.S. resident purchasing the Securities through a
brokerage account located outside of the United States of America, nor is
it using a non-U.S. brokerage account to purchase the Securities for the
benefit of individuals or corporate entities resident within the United
States of America.
7. The Purchaser is not purchasing the Securities as part of a transaction or
series of transactions that, although in technical compliance with the
provisions of Regulation S, is part of a plan or scheme to evade the
registration provisions of the Securities Act and will not engage in
hedging transactions involving the Securities unless such transactions are
in compliance with the Securities Act.
15
8. The Purchaser is purchasing the Securities as an investment and not with a
view towards resale.
9. It has been called to the Purchaser's attention that this investment
involves a high degree of risk, and no assurances are or have been made
regarding the economic advantages, if any, which may inure to its benefit.
The economic benefit from an investment in the Securities depends on the
ability of the Company to successfully conduct its business activities. The
accomplishment of such goals in turn depends on many factors beyond the
control of the Company or its management. Accordingly, the suitability for
any particular investor in the Securities will depend upon, among other
things, such investor's investment objectives and such investor's ability
to accept speculative risks, including the risk of a total loss of
investment in the Securities. The Purchaser's advisor(s), if any, and the
Purchaser have carefully reviewed and understand the risk of, and other
considerations relating to, an investment in the securities.
10. The Purchaser is able to bear the economic risks of this investment, is
able to hold the Securities for an indefinite period of time, and has
sufficient net worth to sustain a loss of the entire investment in the
Company in the event such loss should occur.
11. The Company has answered all inquiries that the Purchaser has made of it
concerning the Company or any other matters relating to the business and
proposed operation of the Company and the offer and sale of the Securities.
12. The Purchaser will offer, sell or otherwise transfer the Securities only
(A) pursuant to a registration statement that has been declared effective
under the Securities Act, (B) pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S in a
transaction meeting the requirements of Rule 904 (or other applicable Rule)
under the Securities Act, or (C) pursuant to another available exemption
from the registration requirements of the Securities Act, subject to the
Company's right prior to any offer, sale or transfer pursuant to clauses
(B) or (C) to require the delivery of an opinion of counsel, certificates
or other information reasonably satisfactory to the Company for the purpose
of determining the availability of an exemption.
13. To the Purchaser's knowledge, without having made any independent
investigation, neither the Company nor any person acting for the Company,
has conducted any "directed selling efforts" in the United States as the
term "directed selling efforts" is defined in Rule 902 of Regulation S,
which, in general, means any activity undertaken for the purpose of, or
that could reasonably be expected to have the effect of, conditioning the
marketing in the United States for any of the securities being offered.
Such activity includes, without limitation, the mailing of printed material
to investors residing in the United States, the holding of promotional
seminars in the United States, and the placement of advertisements with
radio or television stations broadcasting in the United States or in
publications with a general circulation in the United States, which discuss
the offering of the securities. To the Purchaser's knowledge, without
having made any independent investigation, the securities were not offered
to it through, and the Purchaser is not aware of, any form of general
solicitation or general advertising, including without limitation, (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
and (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
14. The Purchaser is permitted to purchase the Securities under the laws of its
home jurisdiction.
15. The Purchaser has been independently advised as to the applicable holding
period imposed in respect of the Securities by securities legislation in
the jurisdiction in which it resides and confirms that no representation
has been made respecting the applicable holding periods for the Securities
in such jurisdiction and is aware of the risks and other characteristics of
the Securities and of the fact that holders of such Securities may not be
able to resell such Securities except in accordance with applicable
securities legislation and regulatory policy.
16. The Purchaser understands that if it knowingly and willingly makes false
statements as to eligibility to purchase or resell securities under
Regulation S, it may become subject to civil and criminal proceedings being
taken by the United States Securities and Exchange Commission.
16
17. The Purchaser has no present intention of becoming, a resident of the
United States (defined as being any natural person physically present
within the United States for at least 183 days in a 12-month consecutive
period or any entity who maintained an office in the United States at any
time during a 12-month consecutive period). The Purchaser understands that
the Company may rely upon the representations and warranty of this
paragraph as a basis for an exemption from registration of the securities
under the Securities Act, and the provisions of relevant state securities
laws.
DATED: November __, 2013
Witnessed by: )
)
)
------------------------------------- ) -------------------------------------
) Signature
)
------------------------------------- ) -------------------------------------
Address )
)
------------------------------------- ) -------------------------------------
) (Please print name)
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EITHER THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
ISSUER. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN
SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
LIFE STEM GENETICS INC.
Warrant Shares: ______________ Initial Exercise Date: _____________, 2013
THIS COMMON STOCK PURCHASE WARRANT (the "Warrant") certifies that, for value
received, _______________________________________, or its assigns (the "Holder")
is entitled, upon the terms and subject to the limitations on exercise and the
conditions hereinafter set forth, at any time on or after the date hereof (the
"Initial Exercise Date") and on or prior to the close of business on the twelve
(12) month anniversary of the Initial Exercise Date (the "Termination Date") but
not thereafter, to subscribe for and purchase from LIFE STEM GENETICS INC., a
Nevada corporation (the "Issuer"), up to the amount of shares stated above (as
subject to adjustment hereunder, the "Warrant Shares") of the Issuer's Common
Stock. The purchase price of one share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2(b).
Section 1 Exercise.
a) Exercise of Warrant. Exercise of the purchase rights represented by this
Warrant may be made, in whole or in part, at any time or times on or after the
Initial Exercise Date and on or before the Termination Date by delivery to the
Issuer (or such other office or agency of the Issuer as it may designate by
notice in writing to the registered Holder at the address of the Holder
appearing on the books of the Issuer) of a duly executed facsimile copy of the
Notice of Exercise form annexed hereto. Within three (3) Trading Days following
the date of exercise as aforesaid, the Holder shall deliver the aggregate
Exercise Price for the shares specified in the applicable Notice of Exercise by
wire transfer or cashier's check drawn on a United States bank unless the
cashless exercise procedure specified in Section 1(c) below is specified in the
applicable Notice of Exercise. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the
Issuer until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder
shall surrender this Warrant to the Issuer for cancellation within three (3)
Trading Days of the date the final Notice of Exercise is delivered to the
Issuer. Partial exercises of this Warrant resulting in purchases of a portion of
the total number of Warrant Shares available hereunder shall have the effect of
lowering the outstanding number of Warrant Shares purchasable hereunder in an
amount equal to the applicable number of Warrant Shares purchased. The Holder
and the Issuer shall maintain records showing the number of Warrant Shares
purchased and the date of such purchases. The Issuer shall deliver any objection
to any Notice of Exercise Form within one (1) Business Day of receipt of such
notice. THE HOLDER AND ANY ASSIGNEE, BY ACCEPTANCE OF THIS WARRANT, ACKNOWLEDGE
AND AGREE THAT, BY REASON OF THE PROVISIONS OF THIS PARAGRAPH, FOLLOWING THE
PURCHASE OF A PORTION OF THE WARRANT SHARES HEREUNDER, THE NUMBER OF WARRANT
SHARES AVAILABLE FOR PURCHASE HEREUNDER AT ANY GIVEN TIME MAY BE LESS THAN THE
AMOUNT STATED ON THE FACE HEREOF.
b) Exercise Price. The exercise price per share of the Common Stock under
this Warrant shall be $1.00 per share, subject to adjustment hereunder (the
"Exercise Price").
c) Mechanics of Exercise.
i. Delivery of Certificates Upon Exercise. Certificates for shares
purchased hereunder shall be transmitted by the Transfer Agent to the
Holder by delivery of a share certificate to the Holder.
18
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have
been exercised in part, the Issuer shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the
certificate or certificates representing Warrant Shares, deliver to the
Holder a new Warrant evidencing the rights of the Holder to purchase the
un-purchased Warrant Shares called for by this Warrant, which new Warrant
shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Issuer fails to cause the Transfer
Agent to transmit to the Holder a certificate or the certificates
representing the Warrant Shares pursuant to Section 2(d)(i) by the Warrant
Share Delivery Date, then the Holder will have the right to rescind such
exercise.
iv. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be
entitled to purchase upon such exercise, the Issuer shall, at its election,
either pay a cash adjustment in respect of such final fraction in an amount
equal to such fraction multiplied by the Exercise Price or round up to the
next whole share.
v. Charges, Taxes and Expenses. Issuance of certificates for Warrant
Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such
certificate, all of which taxes and expenses shall be paid by the Issuer,
and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided, however, that in
the event certificates for Warrant Shares are to be issued in a name other
than the name of the Holder, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly executed
by the Holder and the Issuer may require, as a condition thereto, the
payment of a sum sufficient to reimburse it for any transfer tax incidental
thereto.
vi. Closing of Books. The Issuer will not close its stockholder books
or records in any manner which prevents the timely exercise of this
Warrant, pursuant to the terms hereof.
Section 2. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Warrant does not entitle
the Holder to any voting rights, dividends or other rights as a stockholder of
the Issuer prior to the exercise hereof as set forth in Section 1(c).
b) Loss, Theft, Destruction or Mutilation of Warrant. The Issuer covenants
that upon receipt by the Issuer of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant or any stock certificate
relating to the Warrant Shares, and in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it (which, in the case of the
Warrant, shall not include the posting of any bond), and upon surrender and
cancellation of such Warrant or stock certificate, if mutilated, the Issuer will
make and deliver a new Warrant or stock certificate of like tenor and dated as
of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the
taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then, such action may be taken or such right may be
exercised on the next succeeding Business Day.
d) Jurisdiction. All questions concerning the construction, validity,
enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
e) Restrictions. The Holder acknowledges that the Warrant Shares acquired
upon the exercise of this Warrant, if not registered and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state
and federal securities laws.
19
f) Notices. Any notice, request or other document required or permitted to
be given or delivered to the Holder by the Issuer shall be delivered in
accordance with the notice provisions of the Purchase Agreement.
g) Limitation of Liability. No provision hereof, in the absence of any
affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder,
shall give rise to any liability of the Holder for the purchase price of any
Common Stock or as a stockholder of the Issuer, whether such liability is
asserted by the Issuer or by creditors of the Issuer.
h) Remedies. The Holder, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Warrant. The Issuer agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to
waive and not to assert the defense in any action for specific performance that
a remedy at law would be adequate.
i) Successors and Assigns. Subject to applicable securities laws, this
Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
Issuer and the successors and permitted assigns of Holder. The provisions of
this Warrant are intended to be for the benefit of any Holder from time to time
of this Warrant and shall be enforceable by the Holder or holder of Warrant
Shares.
j) Amendment. This Warrant may be modified or amended or the provisions
hereof waived with the written consent of the Issuer and the Holder.
k) Severability. Wherever possible, each provision of this Warrant shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Warrant.
l) Headings. The headings used in this Warrant are for the convenience of
reference only and shall not, for any purpose, be deemed a part of this Warrant.
IN WITNESS WHEREOF, the Issuer has caused this Warrant to be executed by
its officer thereunto duly authorized as of the date first above indicated.
LIFE STEM GENETICS INC.
:
By:____________________________________
Name:
Title:
20
NOTICE OF EXERCISE
To: LIFE STEM GENETICS INC.
(1) The undersigned hereby elects to purchase ________ Warrant Shares of
the Issuer pursuant to the terms of the attached Warrant (only if exercised in
full), and tenders herewith payment of the exercise price in full, together with
all applicable transfer taxes, if any. Payment shall take the form of lawful
money of the United States.
(2) Please issue a certificate or certificates representing said Warrant
Shares in the name of the undersigned or in such other name as is specified
below:
----------------------------------------
(3) The Warrant Shares shall be delivered to the following DWAC Account
Number or by physical delivery of a certificate to:
----------------------------------------
----------------------------------------
----------------------------------------
(4) Accredited Investor. The undersigned is an "accredited investor" as
defined in Regulation D promulgated under the Securities Act of 1933, as
amended, and under Canadian National Instrument 45-106 (Prospectus and
Registration Exemptions).
------------------------------------
(Signature of holder)
Name of Investing Entity: _____________________________________________________
Signature of Authorized Signatory of Investing Entity: ________________________
Name of Authorized Signatory: _________________________________________________
Title of Authorized Signatory: ________________________________________________
Date: _________________________________________________________________________
End of Subscription Agreement
21