EXHIBIT 4.1
NEITHER THIS WARRANT NOR THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN
MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR
AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE
OPINION OF COUNSEL FOR THE COMPANY, IS AVAILABLE.
Void after 5:00 P.M. New York City time on the last day of the Exercise Period,
as defined in the Warrant
COMMON STOCK PURCHASE WARRANT
OF
IR BIOSCIENCES HOLDINGS, INC.
This is to certify that, FOR VALUE RECEIVED, ______________________________
("Holder"), is entitled to purchase, subject to the provisions of this Warrant,
from IR BioSciences Holdings, Inc., a Delaware corporation (the "COMPANY"), at
an exercise price per share of $.50, subject to adjustment as provided in this
Warrant (the "WARRANT EXERCISE PRICE"), __________________ (___________) shares
of common stock, par value $0.001 per share ("COMMON STOCK"). The shares of
Common Stock deliverable upon such exercise, and as adjusted from time to time,
are hereinafter sometimes referred to as "WARRANT SHARES."
1. ISSUANCE OF WARRANT. This Warrant is being issued pursuant to that
certain Subscription Agreement dated as of the date hereof between the Company
and the Holder (the "SUBSCRIPTION AGREEMENT"). Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed thereto in the
Subscription Agreement. In addition, the following terms have the meanings set
forth below:
"Closing Price" means, as of any date, the last trading price for the
Common Stock as reported by the NASD OTC Bulletin Board, or other principal
exchange or electronic trading system on which the shares of Common Stock are
quoted or traded.
"Common Stock Purchase Price," shall mean a price equal to the lower of
90% of the 5-day average of the closing bid price of the shares of Common Stock
on the OTC Bulletin Board prior to the initial closing of the Placement (the
"Initial Closing") or any subsequent closing of the Placement as contemplated
hereby (each, a "Subsequent Closing" and together with the Initial Closing,
each, a "Closing" and collectively, the "Closings"), with a floor on the Common
Stock Purchase Price equal to Ten Cents ($0.10) and a ceiling on the Common
Stock Purchase Price equal to Fifteen Cents ($0.15), as adjusted to reflect
forward and reverse stock splits. If one or more Subsequent Closings occurs, the
Common Stock Purchase Price, for purposes of such Subsequent Closing, shall be
no greater than the lesser of: (i) lowest Common Stock Purchase Price determined
at any prior Closing or (ii) the Common Stock Purchase Price determined for such
Subsequent Closing.
"Convertible Securities" shall mean evidences of indebtedness, shares
of stock or other securities, which are convertible into or exchangeable, with
or without payment of additional
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consideration in cash or property, for shares of Common Stock, either
immediately or upon the occurrence of a specified date or a specified event.
"Exercise Period" shall mean the period commencing on the date hereof
and ending at 5 p.m., Eastern Time on ___________, 2009.
"Permitted Issuances" shall mean (i) Common Stock issued pursuant to a
stock split or subdivision, (ii) Common Stock issuable or issued to employees,
consultants or directors of the Company directly or pursuant to a stock plan or
other compensation arrangement approved by the Board of Directors of the Company
at the then fair market value, (iii) capital stock, debt instruments convertible
into capital stock or warrants or options to purchase capital stock issued in
connection with bona fide acquisitions, mergers, technology licenses or
purchases, corporate partnering agreements, joint ventures or similar
transactions, the terms of which are approved by the Board of Directors of the
Company, and (iv) Common Stock issued or issuable upon conversion of the
Warrants or any other securities exercisable or exchangeable for, or convertible
into shares of Common Stock outstanding as of __________, 2004.
"Placement" means the private placement by the Company of up to
$1,000,000 worth of Units consisting of shares of the Company's Common Stock and
Warrants, including this Warrant.
2. EXERCISE OF WARRANT. This Warrant may be exercised in whole or in
part at any time or from time to time from the date hereof until the end of the
Exercise Period by presentation and surrender hereof to the Company at its
principal office, or at the office of its stock transfer agent, if any, with the
Purchase Form annexed hereto duly executed and accompanied by payment of the
Warrant Exercise Price for the number of shares of Common Stock specified in
such form. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the rights of the Holder hereof to purchase the balance of
the shares of Common Stock purchasable hereunder. Upon receipt by the Company of
this Warrant at its office, or by the stock transfer agent of the Company at its
office, in proper form for exercise, the Holder shall be deemed to be the holder
of record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder. As soon as practicable after each
exercise of this Warrant, in whole or in part, and in any event within seven (7)
days thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder hereof or, subject to Section 6 hereof, as the Holder (upon payment
by the Holder of any applicable transfer taxes) may direct a certificate or
certificates (with appropriate restrictive legends, as applicable) for the
number of duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock to which the Holder shall be entitled upon exercise plus, in
lieu of any fractional share to which the Holder would otherwise be entitled,
all issuances of Common Stock shall be rounded up to the nearest whole share.
3. RESERVATION OF SHARES/FRACTIONAL SHARES. The Company hereby agrees
that at all times there shall be reserved for issuance and/or delivery upon
exercise of this Warrant such number of shares of Common Stock as shall be
required for issuance and delivery upon exercise of this Warrant. No fractional
shares or script representing fractional shares shall be issued upon the
exercise of this Warrant. Instead, the Company will round up to the nearest
whole share.
4. EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This Warrant is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company for other Warrants of different
denominations entitling the holder thereof to purchase in the aggregate the same
number of shares of Common Stock purchasable hereunder. Upon surrender of this
Warrant to the Company or at the office of its stock transfer agent, if any,
with the
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Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, the Company shall, without charge, execute and deliver a new
Warrant in the name of the assignee named in such instrument of assignment and
this Warrant shall promptly be canceled. This Warrant may be divided or combined
with other Warrants which carry the same rights upon presentation hereof at the
office of the Company or at the office of its stock transfer agent, if any,
together with a written notice specifying the names and denominations in which
new Warrants are to be issued and signed by the Holder hereof. The term
"Warrant" as used herein includes any Warrants into which this Warrant may be
divided or exchanged. Upon receipt by the Company of evidence satisfactory to it
of the loss, theft, destruction or mutilation of this Warrant, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
execute and deliver a new Warrant of like tenor. Any such new Warrant executed
and delivered shall constitute an additional contractual obligation on the part
of the Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
5. RIGHTS AND OBLIGATIONS OF THE HOLDER. The Holder shall not, by
virtue of this Warrant, be entitled to any rights of a stockholder in the
Company, either at law or equity, and the rights of the Holder are limited to
those expressed in the Warrant and are not enforceable against the Company
except to the extent set forth herein. In addition, no provision hereof, in the
absence of affirmative action by ▇▇▇▇▇▇ to purchase shares of Common Stock, and
no enumeration herein of the rights or privileges of Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
6. ANTI-DILUTION PROVISIONS. The Warrant Exercise Price in effect at
any time and the number and kind of securities purchasable upon exercise of each
Warrant shall be subject to adjustment as follows and the Company shall give
each Holder notice of any event described below which requires an adjustment
pursuant to this Section 6 at the time of such event:
(a) STOCK DIVIDENDS, SUBDIVISIONS AND COMBINATIONS. If at any
time the Company shall:
(i) take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend
payable in, or other distribution of, shares of Common Stock,
(ii) subdivide or reclassify its outstanding shares
of Common Stock into a larger number of shares of Common
Stock, or
(iii) combine or reclassify its outstanding shares of
Common Stock into a smaller number of shares of Common Stock
or otherwise effect a reverse stock split,
then (i) the number of shares of Common Stock for which this Warrant is
exercisable immediately after the occurrence of any such event shall be adjusted
to equal the number of shares of Common Stock which a record holder of the same
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the occurrence of such event, or the record date therefor,
whichever is earlier, would own or be entitled to receive after the happening of
such event, and (ii) the Warrant Exercise Price(s) shall be adjusted to equal
(A) the Warrant Exercise Price immediately prior to such event multiplied by the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to the adjustment divided by (B) the number of shares for
which this Warrant is exercisable immediately after such adjustment.
(b) CERTAIN OTHER DISTRIBUTIONS AND ADJUSTMENTS.
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(i) If at any time the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive any
dividend or other distribution of:
(A) cash,
(B) any evidences of its indebtedness,
any shares of its stock or any other securities or property of any nature
whatsoever (other than Convertible Securities or shares of Common Stock), or
(C) any warrants or other rights to
subscribe for or purchase any evidences of its indebtedness, any shares of its
stock or any other securities or property of any nature whatsoever (other than
Convertible Securities or shares of Common Stock),
then Holder shall be entitled to receive such dividend or distribution as if
Holder had exercised this Warrant.
(ii) A reclassification of the Common Stock (other
than a change in par value, or from par value to no par value or from no par
value to par value) into shares of Common Stock and shares of any other class of
stock shall be deemed a distribution by the Company to the holders of its Common
Stock of such shares of such other class of stock and in such event Holder shall
be entitled to receive such distribution as if Holder had exercised this Warrant
and, if the outstanding shares of Common Stock shall be changed into a larger or
smaller number of shares of Common Stock as a part of such reclassification,
such change shall be deemed a subdivision or combination, as the case may be, of
the outstanding shares of Common Stock within the meaning of Section 6(a).
(c) ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK.
(i) If, at any time prior to the first anniversary of
the final Closing (as defined in the Subscription Agreement), the Company shall
issue or sell any shares of Common Stock in exchange for consideration in an
amount per share of Common Stock less than the lowest Common Stock Purchase
Price calculated for any Closing (the "DISCOUNTED PRICE," each such sale or
issuance a "DISCOUNTED PRICE TRANSACTION" and the number of shares sold or
issued in such Discounted Price Transaction the "DISCOUNTED SALE VOLUME") other
than Permitted Issuances, then (A) the Warrant Exercise Price then in effect
shall be adjusted so that it shall equal the price determined by multiplying the
Warrant Exercise Price in effect immediately prior to such event by a fraction,
of which the numerator shall be the sum of money raised in the Placement plus
the sum of money raised in all Subsequent Discounted Price Transactions, and of
which the denominator shall be the sum of money raised in the Placement plus the
sum of money equal to the product of the cumulative Discounted Sale Volumes of
all Discounted Price Transactions and such Common Stock Purchase Price, and (B)
the number of shares of Common Stock for which this Warrant is exercisable shall
be adjusted to equal the product obtained by multiplying the Warrant Exercise
Price in effect immediately prior to such Discounted Price Transaction by the
number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Discounted Price Transaction and dividing the product
thereof by the Warrant Exercise Price resulting from the adjustment made
pursuant to clause (A) above.
(ii) The provisions of paragraph (i) of this Section
6(c) shall not apply to any issuance of shares of Common Stock for which an
adjustment is provided under Section 6(a) or 6(b). No adjustment of the number
of shares of Common Stock for which this Warrant shall be exercisable shall be
made under paragraph (i) of this Section 6(c) upon the issuance of any shares of
Common Stock which are issued pursuant to the exercise of any warrants or other
subscription or purchase rights or pursuant to the exercise of any conversion or
exchange rights in any Convertible Securities, if any such adjustment
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shall previously have been made upon the issuance of such warrants or other
rights or upon the issuance of such Convertible Securities (or upon the issuance
of any warrant or other rights therefor) pursuant to Section 6(d) or Section
6(e).
(d) ISSUANCE OF WARRANTS OR OTHER RIGHTS.
(i) If at any time the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them to receive a
distribution of, or shall in any manner (whether directly or by assumption in a
merger in which the Company is the surviving corporation) issue or sell, any
warrants or other rights to subscribe for or purchase any shares of Common Stock
or any Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which Common
Stock is issuable upon the exercise of such warrants or other rights or upon
conversion or exchange of such Convertible Securities shall be less than the
Common Stock Purchase Price, then the number of shares for which this Warrant is
exercisable and the Warrant Exercise Price shall be adjusted as provided in
Section 6(c) on the basis that the maximum number of shares of Common Stock
issuable pursuant to all such warrants or other rights or necessary to effect
the conversion or exchange of all such Convertible Securities shall be deemed to
have been issued and outstanding and the Company shall be deemed to have
received all the consideration payable therefor, if any, as of the date of
issuance of such warrants or other rights. No further adjustment of the Warrant
Exercise Price(s) shall be made upon the actual issue of such Common Stock or of
such Convertible Securities upon exercise of such warrants or other rights or
upon the actual issuance of such Common Stock upon such conversion or exchange
of such Convertible Securities.
(ii) If at any time the Company shall take a record
of the holders of its Common Stock for the purpose of entitling them to receive
a distribution of, or shall in any manner (whether directly or by assumption in
a merger in which the Company is the surviving corporation) issue or sell, any
warrants or other rights to subscribe for or purchase any shares of Common Stock
or any Convertible Securities, whether or not the rights to exchange or convert
thereunder are immediately exercisable, and the price per share for which Common
Stock is issuable upon the exercise of such warrants or other rights or upon
conversion or exchange of such Convertible Securities shall be equal to or more
than the Common Stock Purchase Price, but less than the Warrant Exercise Price,
then the Warrant Exercise Price shall be adjusted downward to match the exercise
price of such new warrants or other rights.
(e) ISSUANCE OF CONVERTIBLE SECURITIES. If at any time the
Company shall take a record of the holders of its Common Stock for the purpose
of entitling them to receive a distribution of, or shall in any manner (whether
directly or by assumption in a merger in which the Company is the surviving
corporation) issue or sell, any Convertible Securities, whether or not the
rights to exchange or convert thereunder are immediately exercisable, and the
price per share for which Common Stock is issuable upon such conversion or
exchange shall be less than the Common Stock Purchase Price, then the number of
shares of Common Stock for which this Warrant is exercisable and the Warrant
Exercise Price shall be adjusted as provided in Section 6(c) on the basis that
the maximum number of shares of Common Stock necessary to effect the conversion
or exchange of all such Convertible Securities shall be deemed to have been
issued and outstanding and the Company shall have received all of the
consideration payable therefor, if any, as of the date of issuance of such
Convertible Securities. If any issue or sale of Convertible Securities is made
upon exercise of any warrant or other right to subscribe for or to purchase any
such Convertible Securities for which adjustments of the number of shares of
Common Stock for which this Warrant is exercisable and the Warrant Exercise
Price have been or are to be made pursuant to
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Section 6(d), no further adjustment of the number of shares of Common Stock for
which this Warrant is exercisable and the Warrant Exercise Price shall be made
by reason of such record, issue or sale.
(f) SUPERSEDING ADJUSTMENT. If at any time after any
adjustment of the number of shares of Common Stock for which this Warrant is
exercisable and the Warrant Exercise Price(s) shall have been made pursuant to
Section 6(d) or Section 6(e) as the result of any issuance of warrants, rights
or Convertible Securities,
(i) such warrants or rights, or the right of
conversion or exchange in such other Convertible Securities, shall expire, and
all or a portion of such warrants or rights, or the right of conversion or
exchange with respect to all or a portion of such other Convertible Securities,
as the case may be, shall not have been exercised, or
(ii) the consideration per share for which shares of
Common Stock are issuable pursuant to such warrants or rights, or the terms of
such other Convertible Securities, shall be increased solely by virtue of
provisions therein contained for an automatic increase in such consideration per
share upon the occurrence of a specified date or event,
then for each outstanding Warrant such previous adjustment shall be rescinded
and annulled and the shares of Common Stock which were deemed to have been
issued by virtue of the computation made in connection with the adjustment so
rescinded and annulled shall no longer be deemed to have been issued by virtue
of such computation made in connection with the adjustment so rescinded and
annulled shall no longer be deemed to have been issued by virtue of such
computation. Thereupon, a re-computation shall be made of the effect of such
rights or options or other Convertible Securities on the basis of:
(A) treating the number of shares of Common
Stock or other property, if any, theretofore actually issued or issuable
pursuant to the previous exercise of any such warrants or rights or any such
right of conversion or exchange, as having been issued on the date or dates of
any such exercise and for the consideration actually received and receivable
therefore, and
(B) treating any such warrants or rights or
any such other Convertible Securities which then remain outstanding as having
been granted or issued immediately after the time of such increase of the
consideration per share for which shares of Common Stock or other property are
issuable under such warrants or rights or other convertible Securities;
whereupon a new adjustment of the number of shares of Common Stock for which
this Warrant is exercisable and the Warrant Exercise Price(s) shall be made,
which new adjustment shall supersede the previous adjustment so rescinded and
annulled.
(g) No adjustment in the Warrant Exercise Price shall
be required unless such adjustment would require an increase or decrease of at
least one cent ($0.01) in such price; provided, however, that any adjustments
which by reason of this Section 6(g) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 6(g) shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(h) The Company may retain a firm of independent
public accountants of recognized standing selected by the Board (who may be the
regular accountants employed by the Company) to make any computation required by
this Section 6.
(i) In the event that at any time, as a result of an
adjustment made pursuant to Section 6(a), (b) or (c) of this Warrant, the Holder
of any Warrant thereafter shall become entitled to receive any shares of the
Company, other than Common Stock, thereafter the number of such other shares
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so receivable upon exercise of any Warrant 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 Stock contained in Sections 6(a) through
(h), inclusive, of this Warrant.
(j) Notwithstanding the foregoing, no adjustment
shall be effected due to, or as a result of, any Permitted Issuances.
(k) OTHER ACTION AFFECTING COMMON STOCK. In case at
any time or from time to time the Company shall take any action in respect of
its Common Stock, other than any action described in this Section 6, then,
unless such action will not have a materially adverse effect upon the rights of
the Holders, the number of shares of Common Stock or other stock for which this
Warrant is exercisable and/or the purchase price thereof shall be adjusted in
such manner as may be equitable in the circumstances.
7. INTENTIONALLY OMITTED.
8. OFFICER'S CERTIFICATE. Whenever the Warrant Exercise Price(s) shall
be adjusted as required by the provisions of Section 6 of this Warrant, the
Company shall forthwith file in the custody of its Secretary or an Assistant
Secretary at its principal office and with its stock transfer agent, if any, an
officer's certificate showing the adjusted Warrant Exercise Price(s) and the
adjusted number of shares of Common Stock issuable upon exercise of each
Warrant, determined as herein provided, setting forth in reasonable detail the
facts requiring such adjustment, including a statement of the number of
additional shares of Common Stock, if any, and such other facts as shall be
necessary to show the reason for and the manner of computing such adjustment.
Each such officer's certificate shall be forwarded to Holder as provided in
Section 13.
9 NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (1) if the Company shall pay any dividend or make any distribution
upon Common Stock, or (2) if the Company shall offer to the holders of Common
Stock for subscription or purchase by them any share of any class or any other
rights, or (3) if any capital reorganization of the Company, reclassification of
the capital stock of the Company, consolidation or merger of the Company with or
into another entity, tender offer transaction for the Company's Common Stock,
sale, lease or transfer of all or substantially all of the property and assets
of the Company, or voluntary or involuntary dissolution, liquidation or winding
up of the Company shall be effected, or (4) if the Company shall file a
registration statement under the Securities Act of 1933, as amended (the "ACT"),
on any form other than on Form S-4 or S-8 or any successor form, then in any
such case, the Company shall cause to be mailed by certified mail to the Holder,
at least ten days prior to the date specified in clauses (1), (2), (3) or (4),
as the case may be, of this Section 9 a notice containing a brief description of
the proposed action and stating the date on which (i) a record is to be taken
for the purpose of such dividend, distribution or rights, or (ii) such
reclassification, reorganization, consolidation, merger, tender offer
transaction, conveyance, lease, dissolution, liquidation or winding up is to
take place and the date, if any is to be fixed, as of which the holders of
Common Stock or other securities shall receive cash or other property
deliverable upon such reclassification, reorganization, consolidation, merger,
conveyance, dissolution, liquidation or winding up, or (iii) such registration
statement is to be filed with the SEC.
10. RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding shares
of Common Stock of the Company, or in case of any consolidation or merger of the
Company with or into another corporation (other than a merger with a subsidiary
in which merger the Company is the continuing or surviving corporation and which
does not result in any reclassification, capital reorganization or other change
of outstanding shares of Common Stock of the class issuable upon exercise of
this Warrant) or in case of any sale, lease or conveyance of all or
substantially all of the assets of the Company, the Company shall,
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as a condition precedent to such transaction, cause effective provisions to be
made so that (i) the Holder shall have the right thereafter by exercising this
Warrant, to purchase the kind and amount of shares of stock and other securities
and property receivable upon such reclassification, capital reorganization and
other change, consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock which could have been purchased upon exercise
of this Warrant immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance, and (ii) the successor or acquiring
entity shall expressly assume the due and punctual observance and performance of
each covenant and condition of this Warrant to be performed and observed by the
Company and all obligations and liabilities hereunder (including but not limited
to the provisions of Section 3 regarding the increase in the number of shares of
Warrant Shares potentially issuable hereunder). Any such provision shall include
provision for adjustments which shall be as nearly equivalent as possible to the
adjustments provided for in this Warrant. The foregoing provisions of this
Section 10 shall similarly apply to successive reclassifications, capital
reorganizations and changes of shares of Common Stock and to successive
consolidations, mergers, sales or conveyances. In the event that in connection
with any such capital reorganization or reclassification, consolidation, merger,
sale or conveyance, additional shares of Common Stock shall be issued in
exchange, conversion, substitution or payment, in whole in part, for a security
of the Company other than Common Stock, any such issue shall be treated as an
issuance of Common Stock covered by the provisions of Section 6 of this Warrant.
11. TRANSFER TO COMPLY WITH THE SECURITIES ACT OF 1933. This Warrant or
the Warrant Shares or any other security issued or issuable upon exercise of
this Warrant may not be sold or otherwise disposed of except as follows:
(i) to a person who, in the opinion of counsel for the
Company, is a person to whom this Warrant or Warrant Shares may legally be
transferred without registration and without the delivery of a current
prospectus under the Act with respect thereto and then only against receipt of
an agreement of such person to comply with the provisions of this Section 11
with respect to any resale or other disposition of such securities which
agreement shall be satisfactory in form and substance to the Company and its
counsel; or
(ii) to any person upon delivery of a prospectus then meeting
the requirements of the Act relating to such securities and the offering thereof
for such sale or disposition.
12. GOVERNING LAW; JURISDICTION. The corporate laws of the State of
Delaware shall govern all issues concerning the relative rights of the Company
and its stockholders. All issues concerning the construction, validity,
enforcement and interpretation of this Warrant shall be governed by and
construed in accordance with the internal laws of the State of Delaware without
giving effect to the principles of conflicts of law thereof. The parties hereto
agree that venue in any and all actions and proceedings related to the subject
matter of this Warrant shall be in the state and federal courts in and for New
York, New York, which courts shall have exclusive jurisdiction for such purpose,
and the parties hereto irrevocably submit to the exclusive jurisdiction of such
courts and irrevocably waive the defense of an inconvenient forum to the
maintenance of any such action or proceeding. Service of process may be made in
any manner recognized by such courts. This Warrant and any term hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
13. NOTICES. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is
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delivered VIA facsimile at the facsimile telephone number specified in this
Section prior to 6:30 p.m. (New York City time) on a Business Day, (ii) the
Business Day after the date of transmission, if such notice or communication is
delivered VIA facsimile at the facsimile telephone number specified in this
Agreement later than 6:30 p.m. (New York City time) on any date and earlier than
11:59 p.m. (New York City time) on such date, (iii) the Business Day following
the date of mailing, if sent by nationally recognized overnight courier service,
or (iv) upon actual receipt by the party to whom such notice is required to be
given. The address for such notices and communications shall be as follows:
If to the Company: IR BioSciences Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇; Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to the Holder To the Address Set Forth In the Records of the Company
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With copies to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ + Company, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. 10038
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
14. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the issuance of shares of Common Stock underlying this Warrant
upon exercise of this Warrant; PROVIDED, HOWEVER, that the Company shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the registration of any certificate for shares of Common Stock underlying
this Warrant in a name other that of the Holder. The Holder is responsible for
all other tax liability that may arise as a result of holding or transferring
this Warrant or receiving shares of Common Stock underlying this Warrant upon
exercise hereof.
IN WITNESS WHEREOF, this Warrant has been duly executed as of
_____________, 2004.
IR BIOSCIENCES HOLDINGS, INC.
By: ________________________________
Name:
Address:
10
PURCHASE FORM
Dated: _______________, 20_____
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing _____ shares of Common Stock and hereby
makes payment of $___________ in payment of the actual exercise price thereof.
Schedule 1 attached hereto specifies the Warrant Shares from which the shares of
Common Stock are being purchased and the Warrant Exercise Price(s) for such
shares.
--------------------------------------
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name:___________________________________________________________________
(Please typewrite or print in block letters)
Signature:______________________________________________________________
Social Security or Employer Identification No.:_________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, _______________________________________ hereby
sells, assigns and transfer unto:
Name:___________________________________________________________________________
(Please typewrite or print in block letters)
Address:________________________________________________________________________
Social Security or Employer Identification No.:_________________________________
The right to purchase Common Stock represented by this Warrant to the extent of
shares as to which such right is exercisable and does hereby irrevocably
constitute and appoint attorney to transfer the same on the books of the Company
with full power of substitution.
Dated: _________________, 200_.
Signature:________________________________
Signature Guaranteed:
_____________________________________