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 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
75% 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 $0.16) and a ceiling on the Common Stock Purchase
Price equal to $0.30), 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 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 timeHour17Minute05 p.m., Eastern Time on ___________, 2011.
"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 September 6, 2006.
"PLACEMENT" means the private placement by the Company of up to
$7,500,000 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 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 Xxxxxx 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.
(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 resul1ting 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 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 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 therefor, 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 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. REGISTRATION RIGHTS. The Holder of this Warrant shall be entitled to
the registration rights as described in Exhibit A to the Subscription Agreement
entered into between the Company and the original holder of this Warrant and the
Company's Private Placement Memorandum dated as of September 7, 2006.
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, 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 oth er 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
placeStateDelaware 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
StateplaceDelaware 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 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.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: ______________________
Tel: _________; Fax: _______
If to the Holder To the Address Set Forth In the Records of the Company
With copies to: Xxxxxx Xxxxxxx & Company, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, X.X. 10038
Facsimile No.: (000) 000-0000
Attn: Xxxxxx Xxxxxxx
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 __________ ___, 2006.
IR BIOSCIENCES HOLDINGS, INC.
By: ________________________________
Name:
Address:
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
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Name:________________________________________________________________
(Please typewrite or print in block letters)
Signature:___________________________________________________________
Social Security or Employer Identification No.:______________________
ASSIGNMENT FORM
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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:
___________________________________
