Exhibit 10.1
30 April 2010
Enox Biopharma, Inc.
Dr. Lundberg Jon
Dr. Weitzberg Eddie
Nitricare HB
Assignment of Patents and Patent Applications
DATED APRIL 29, 2010
BETWEEN:
(1) ENOX BIOPHARMA, INC., a company incorporated in the state of Nevada,
USA, whose principal office is at 3849 West 13th Avenue, Vancouver BC
V6R239, Canada (the "ASSIGNEE");
(2) DR. LUNDBERG JON, Swedish Passport number 45618433 whose address is at
Stenbocksvagen 6, S-182 62, Djursholm, Stockholm, Sweden ("LUNDBERG");
(3) DR. WEITZBERG EDDIE, Swedish Passport number 56589903 whose address is
at Nybrogtan 24, S-114 39 Stockholm, Sweden ("WEITZBERG"),
(4) NITRICARE HB, a [company] incorporated under the laws of Sweden, whose
a registered address is at Stenbocksvagen 6, S-182 62, Djursholm,
Stockholm, Sweden (the "NITRICARE" and together with Lundberg and
Weitzberg - the "ASSIGNOR")
(together, the "PARTIES").
(A) WHEREAS Lundberg and Weitzberg are the sole inventors of the Inventions
(as defined below).
(B) AND WHEREAS Nitricare is wholly owned (100%) by Lundberg and Weitzberg.
(C) AND WHEREAS the Assignor is the proprietor of the Inventions and the
applicant for the Patents (as defined below).
(D) AND WHEREAS the Assignee is interested in receiving and being assigned
and the Assignor has agreed to assign and transfer the Patents to the
Assignee on the terms set out in this Agreement.
IT IS THEREBY AGREED:
1. INTERPRETATION
1.1 In this Agreement the following words and expressions shall, unless the
context otherwise requires, have the following meanings:
"BUSINESS DAY": a day other than a Saturday, Sunday or public holiday
when banks are normally open for business.
"IMPROVEMENT": any improvement, enhancement or modification to the
technology that is the subject of any of the Patents or to any
Invention.
"INVENTION": any invention method or device described, disclosed,
contained and claimed in any Patent.
"PATENT": any patent applications, short particulars of which are set
out in SCHEDULE 1, any similar application filed in any additional
country or territory in the world, and any patent issued in respect
thereto.
1.2 Clause and schedule headings shall not affect the interpretation of
this Agreement.
1.3 The schedules form part of this Agreement and shall have effect as if
set out in full in the body of this Agreement.
1.4 Unless the context otherwise requires, words in the singular include
the plural and in the plural include the singular.
1.5 Any words following the terms INCLUDING, INCLUDE, IN PARTICULAR or any
similar expression shall be construed as illustrative and shall not
limit the sense of the words preceding those terms.
1.6 A PERSON includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
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1.7 Any obligation in this Agreement on a person not to do something
includes, without limitation, an obligation not to agree, allow, permit
or acquiesce in that thing being done.
1.8 Any obligation, warranty and representation of the Assignor is
collectively and severally an obligation, warranty and representation
of Lundberg and Weitzberg and Nitricare.
2. ASSIGNMENT
Pursuant to and for the consideration set out in Clause 4 below, the
Assignor hereby vests, transfers and assigns to the Assignee,
absolutely with full title guarantee, all its right, title, interest,
claim and demand in and to all and any Patents and Inventions,
including:
2.1 in respect of any and each application in the Patents:
(a) the right to claim priority from and to prosecute and obtain
grant of patent; and
(b) the right to file divisional applications based thereon and to
prosecute and obtain grant of patent on each and any such
divisional application;
2.2 in respect of each and any Invention, the right to file an application,
claim priority from such application, and prosecute and obtain grant of
patent or similar protection in or in respect of any country or
territory in the world;
2.3 the right to extend to or register in or in respect of any country or
territory in the world each and any of the Patents (including each and
any of the applications comprised in the Patents) or filed as
aforesaid, and to extend to or register in, or in respect of, any
country or territory in the world any patent or like protection granted
on any of such applications.
2.4 the absolute entitlement to any patents granted pursuant to any of the
applications comprised in the Patents or filed as aforesaid; and
2.5 the right to bring, make, oppose, defend, appeal proceedings, claims or
actions and obtain relief (and to retain any damages recovered) in
respect of any infringement, or any other cause of action arising from
ownership, of any of the Patents or any patents granted on any of the
applications in the Patents or filed as aforesaid, whether occurring
before, on or after the date of this assignment.
3. IMPROVEMENTS
3.1 If the Assignor makes, devises, or discovers, or otherwise acquires
rights in, any Improvement it shall, promptly notify the Assignee in
writing, giving details of the Improvement.
3.2 Unless prohibited by law, the Assignor shall immediately assign, vest
and transfer to the Assignee, for no additional consideration, all such
Improvements and the Inventions related thereto which shall be then
regarded as part of the Patents, and the provision of the Agreement
shall apply to them (subject to the applicable changes). If any
applicable law prohibits such assignment for no additional
consideration, the Parties hereby agree that the additional
consideration to be paid for the assignment of Improvements shall be
ONE US Dollar.
Notwithstanding the above, if by the operation of law such assignment
is not possible, the Assignor shall grant the Assignee, for no
additional consideration, a worldwide, royalty-free, irrevocable,
perpetual exclusive licence to use, make, manufacture, sell, reproduce,
distribute, modify, display, prepare derivative works, or any other
rights available with respect to Improvements and any rights therein.
4. CONSIDERATION
In consideration for the assignment and transfer of the Patents,
Inventions and Improvements hereunder, Nitricare HB shall receive the
following compensation:
4.1 Fifteen thousands US dollars (USD 15,000) upon the execution of this
Agreement, the receipt of which the Assignor expressly acknowledges;
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4.2 Forty-Five thousands US dollars (USD 45,000), to be paid in three equal
quarterly instalments of fifteen thousands US dollars (USD 15,000)
each, on the following dates: July 30th, 2010, October 29th, 2010, and
January 31st 2011.
4.3 A warrant [, issued upon execution of this Agreement,] to purchase two
hundred thousand (200,000) shares of common stock, $0.0001, par value
per share, of the Assignee, at an exercise price and subject to the
terms set out in the warrant, a form of which is attached hereto as
SCHEDULE 2.
4.4 It is hereby clarified and agreed that the said consideration is final
and conclusive, and that the Assignor (or any of Lundberg and Weitzberg
and Nitricare) or any third party, shall not be entitled to any
additional consideration, payment, fee or royalties of any kind
whatsoever, even if the Assignee generates or receives any revenues or
payments of any type in connection with the Patents.
4.5 Each Party shall be responsible for its own tax liabilities arising
from this Agreement. However, if the Assignor is required to withhold
any amounts from any payment, it shall effect such withholding and
remit such amounts to the appropriate taxing authorities.
For the avoidance of doubt it is clarified that all payments made by
the Assignee under this agreement are inclusive of VAT, if applicable.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each Party hereby represents and warrants to the other Parties that:
(a) Assignee has the requisite corporate power and authority to enter
into and perform this Agreement and issue the Warrant in
accordance with the terms hereof. The execution, delivery and
performance of this Agreement by the Assignee and the
consummation by it of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate
action, and no further consent or authorization of Assignee or
its Board of Directors or stockholders is required;
(b) It will not breach the terms of any agreement or arrangement with
any third party by entering into this Agreement and performing
its obligations hereunder;
(c) Its obligations under this Agreement constitute its legal, valid
and binding obligations, enforceable in accordance with their
respective terms subject to applicable bankruptcy,
reorganisation, insolvency, moratorium or similar laws affecting
creditors' rights generally and to equitable principles of
general application; and
(d) No litigation, arbitration or administrative suit or proceeding
before any court, tribunal, governmental body, agency, official
or arbitrator is pending or, so far as it is aware, threatened
against it hat would, if adversely determined, affect its ability
to perform its obligations under this Agreement, or that is
likely to affect the legality, validity or enforceability against
it of the Agreement or its ability to perform its obligations
under this Agreement.
5.2 In addition, the Assignor hereby represents and warrants to the
Assignee that:
(a) Lundberg and Weitzberg are the sole inventors and developers of
the Inventions, without any contribution, assistance,
participation or alleged rights of any third party;
(b) it is the sole legal and beneficial owner of the Inventions and
the Patents and it is properly registered as the inventor,
applicant and proprietor thereof and no other person has any
rights in or with respect to any Patent;
(c) it is entitled to transfer, vest and assign the Inventions and
Patents in accordance with the terms of this Agreement;
(d) all declarations and documents required, until the date of this
Agreement, by the various patent offices in the countries in
which the Patents are registered, in order to register the
Patents have been duly executed, submitted, approved and
registered;
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(e) all application, registration and renewal fees until the date of
this Agreement in respect of each of the Patents have been paid;
(f) it has not transferred, vested, assigned or licensed or otherwise
granted any of the rights under the Patents;
(g) each Patent is free from any encumbrance, security interest,
option, mortgage, charge, lien, right of third party or other
adverse rights;
(h) it is unaware of any infringement or likely infringement of, or
any challenge or likely challenge to the validity of, any of the
Patents or of anything that might render any of the Patents
invalid or subject to a compulsory licence order or prevent any
application in the Patents proceeding to grant;
(i) the exploitation of the Patents will not infringe the rights of
any third party; and
(j) all previous assignments of the Patents are valid and were
registered within applicable time limits
6. INDEMNITY
6.1 The Assignor shall indemnify and hold the Assignee harmless against all
and any loss, damages, liability and costs (including reasonable legal
expenses) that the Assignee suffers or incurs as a result of or in
connection with any breach by the Assignor of the warranties in Clause
5 above or other obligations under this Agreement. At the request of
the Assignee and at its expense, the Assignor shall provide all
reasonable assistance to enable the Assignee to resist any claim,
action or proceedings brought against the Assignee as a consequence of
that breach. This indemnity shall apply whether or not the Assignee has
been negligent or at fault.
6.2 If a payment due from the Assignor under this clause is subject to tax
(whether by way of direct assessment or withholding at its source), the
Assignee shall be entitled to receive from the Assignor such amounts as
shall ensure that the net receipt, after tax, to the Assignee in
respect of the payment is the same as it would have been were the
payment not subject to tax.
6.3 Nothing in this Agreement shall have the effect of excluding or
limiting any liability for death or personal injury caused by
negligence or for fraud.
7. FURTHER ASSURANCES
7.1 The Assignor shall, at the Assignee's expense, perform (or procure the
performance of) all further acts and things, and sign, execute and
deliver (or procure the signing, execution or delivery of) all further
deeds, declarations and documents, required by various patent offices
in the countries in which the Patents are registered or may be
registered, or by any law, or which the Assignee requests, in order to
vest in the Assignee the full benefit of the right, title and interest
assigned to the Assignee under this Agreement, and to ensure that such
assignments have been duly executed, submitted, approved and
registered, including but not limited to:
(a) registration of the Assignee as applicant for, or proprietor of,
the Patents;
(b) application for any patent with respect to the Inventions, in any
territory or Country in the world;
(c) assisting the Assignee in obtaining, maintaining, defending and
enforcing any Patent, and assisting with any other proceedings
which may be brought by or against the Assignee against or by any
third party relating to the rights assigned by this Agreement;
and
(d) at the request and expense of the Assignee provide any assistance
required in connection with any other proceedings regarding any
of the Patents.
7.2 The Assignor shall otherwise do all it reasonably can, at the
Assignee's expense, to vest the rights and title to the Patents in the
Assignee.
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7.3 The Assignor hereby appoints the Assignee to be its attorney to execute
and do any such instrument or thing, and generally to use its name, for
the purpose of giving the Assignee the benefit of this Agreement. The
Assignor acknowledges in favour of a third party that a certificate in
writing signed by the Assignee or any person appointed in accordance
with Clause 7.5 that any instrument or act falls within the authority
conferred by this Agreement shall be conclusive evidence that such is
the case.
7.4 This power of attorney is irrevocable as long as the Assignor's
obligations under this agreement remain undischarged.
7.5 Without prejudice to Clause 7.2, the attorney may, in any way it thinks
fit and in the name and on behalf of the Assignor:
(a) take any action that this Agreement requires the Assignor to
take;
(b) exercise any rights which this Agreement gives to the Assignor;
and
(c) appoint and remove one or more substitute attorneys with full
power as the Assignor's attorney on terms that the attorney
thinks fit.
7.6 The Assignor must ratify and confirm everything that the attorney and
any substitute attorney does or arranges using the powers granted under
this clause.
7.7 The Assignor shall without delay communicate and deliver up to the
Assignee all available information and materials relating to all
Inventions, Patents and Improvements.
7.8 The Assignor shall give notice in writing to the Assignee promptly on
becoming aware of any infringement or suspected infringement of any
Patent.
7.9 The Assignor shall not do or allow to be done anything which would or
might prejudice the rights of the Assignee under this Agreement.
8. PATENTS RELATED COSTS
For the avoidance of doubt it is hereby clarified and agreed that from
the date of this Agreement and thereafter, the Assignee will assume all
costs and expenses related to the Patents (other than those explicitly
set out under Clause 5.2(e)), including their maintenance costs and all
costs associated with their approval.
9. RE-ASSIGNMENT
9.1 Notwithstanding anything to the contrary under this Agreement, it is
agreed that if, at any time prior to the execution of the Warrant, the
Assignee: (i) ceases to do business; (ii) becomes unable to pay its
debts as they fall due; (iii) becomes or is deemed insolvent; (iv) has
a receiver, liquidator, manager, administrator or similar officer
appointed in respect of the whole or any part of its assets or business
(or is the subject of a filing with any court for the appointment of
any such officer); (v) makes any composition or arrangement with its
creditors; or (vi) any equivalent or similar action or proceeding is
taken or suffered in any jurisdiction, and the same is not dismissed or
discharged within 30 days, the Assignor may demand, by a written notice
to the Assignee, to revoke the assignment and transfer of the Patents
and Inventions taken in accordance with this Agreement, as follows:
(a) the Assignee shall vest, transfer and assign back to the Assignor
all the rights, titles and interests in and to the Patents and
Inventions, that were assigned or transferred to it in accordance
with this Agreement;
(b) the Assignor shall return to the Assignee any and all payments it
has received in accordance with this Agreement, plus interest at
a rate of 5% per annum, compounded daily, from the date it has
received such payment until the date such payment is returned in
accordance with this Clause; and
(c) the Assignor shall return to the Assignee the warrant it has
received under Clause 4.3.
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9.2 the Parties shall, at the Assignor expense, perform all further acts
and things, and sign, execute and deliver of all further deeds,
declarations and documents, as may be required for such re-assignment.
10. VARIATION
An amendment or a variation of this Agreement shall be valid only if it
is made in writing and signed by all Parties.
11. REMEDIES
11.1 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not constitute a waiver of
the right or remedy or a waiver of other rights or remedies. No single
or partial exercise of a right or remedy provided by this Agreement or
by law prevents further exercise of the right or remedy or the exercise
of another right or remedy.
11.2 Each Party's rights and remedies contained in this Agreement are
cumulative and not exclusive of rights or remedies provided by law.
12. SEVERABILITY
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision in any other respect or under the law of any other
jurisdiction will in any way be affected or impaired.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding
between the Parties and supersedes all other agreements both oral and
in writing between them in respect to its subject matter.
14. ASSIGNMENT
Otherwise as expressly provided herein, a Party shall not be entitled
to assign any of its rights and obligations under this Agreement
without the prior written approval of the other Parties.
15. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall be deemed to,
constitute a partnership or joint venture of any kind between any of
the Parties, not constitute any Party the agent of another party for
any purpose, nor constitute an employer-employee relationship between
the Parties.
16. RIGHTS OF THIRD PARTIES
A person who is not a party to this Agreement shall not have any rights
under or in connection with it.
17. NOTICES
Any notice required or allowed under this Agreement shall be made in
writing by registered mail return receipt requested, courier, or
facsimile and served to addresses mentioned at the heading of this
Agreement, or to such other address, fax number, as a Party shall
notify the other Parties in writing from time to time. Any notice
served by post shall be deemed to have been served three Business Days
following the date of posting; or the next Business Day following
transmission by facsimile; or if delivered personally, at the time of
delivery; and in proving such service it shall be sufficient proof that
the envelope containing the notice was properly addressed and posted as
a pre-paid letter by registered delivery post.
18. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original and all of which together shall evidence the
same agreement.
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19. GOVERNING LAW AND JURISDICTION
19.1 This Agreement and any disputes or claims arising out of or in
connection with its subject matter are governed by and construed in
accordance with the law of Nevada, USA (disregarding any conflict of
laws rules).
19.2 The parties irrevocably agree that the courts of Nevada shall have
non-exclusive jurisdiction to settle any dispute or claim that arises
out of or in connection with this assignment or its subject matter or
formation (including non-contractual disputes or claims).
IN WITNESS WHEREOF the parties have executed this Agreement on the date first
above written.
NITRICARE HB
By: /s/ Jon Lundberg /s/ Eddie Weitzberg
---------------------------- ----------------------------
Name: Jon Lundberg Eddie Weitzberg
Title: Prof. Prof.
DR. LUNDBERG JON
/s/ Jon Lundberg
- -------------------------------
DR. WEITZBERG EDDIE
/s/ Eddie Weitzberg
- -------------------------------
ENOX BIOPHARMA, INC.
By: /s/ Itamar David
----------------------------
Name: Itamar David
Title: CEO
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SCHEDULE 1 - THE PATENTS
Territory Publication no Application no Date filed [Date granted] Title
- --------- -------------- -------------- ---------- -------------- -----
Israel 176289 2004-12-15 New device and method for
prevention of nocosomial
infections
South Africa 2006/05719 2004-12-15 New device and method for
prevention of nocosomial
infections
South Korea 2006-7013479 2004-12-15 New device and method for
prevention of nocosomial
infections
Norway 20063105 2004-12-15 New device and method for
prevention of nocosomial
infections
China 200480041720.7 2004-12-15 Issue fee paid New device and method for
March 18, 2010 prevention of nocosomial
infections
Japan P2007-534361A 2006-545287 2004-12-15 New device and method for
prevention of nocosomial
infections
EPO 04809058.3 2004-12-15 New device and method for
prevention of nocosomial
infections
Australia 2004296174 2004-12-15 New device and method for
prevention of nocosomial
infections
USA US 2007/0239107 10/583,113 2004-12-15 New device and method for
prevention of nocosomial
infections
Hong Kong HK1103667 07112417.3 2004-12-15 New device and method for
prevention of nocosomial
infections
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SCHEDULE 2
THE WARRANT
THE WARRANT EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE HEREUNDER, HAVE BEEN
AND SHALL BE ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE APPLICABLE STATE SECURITY LAWS. THE WARRANT AND SUCH SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE,
AND SHALL NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED
DISPOSITION IS THE SUBJECT OF A CURRENTLY EFFECTIVE REGISTRATION STATEMENT UNDER
SAID ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT
AND SUCH STATE SECURITIES LAWS IN CONNECTION WITH SUCH DISPOSITION.
ENOX BIOPHARMA, INC.
COMMON STOCK PURCHASE WARRANT
Warrant No: W73
Original Issue Date: May 3, 2010
Void After: 11:59 P.M., May 2, 2012
This Warrant is Issued to:
NITRICARE HB
(hereinafter called the "HOLDER," which term shall include the Holder's legal
representatives, heirs, successors and assigns) by Enox Biopharma, Inc. a
corporation (hereinafter referred to as the "COMPANY"). This Warrant may be
transferred by the Holder only in accordance with the provisions of Section 10.
1. EXERCISE OF WARRANT. For value received and subject to the terms and
conditions hereinafter set forth, the Holder is entitled, upon surrender of this
Warrant at any time on or after May 3, 2010 and on or prior to May 2, 2012 (the
"EXERCISE DATE") (along with the exercise notice form annexed hereto (the
"EXERCISE NOTICE") duly executed, and any certificate(s) representing the
Warrant Shares (as hereinafter defined) (the "WARRANT SHARE CERTIFICATE")) at
the office of the Company at Suite #303, 1687 West Broadway, Vancouver, British
Columbia or such other office in the United States of which the Company shall
notify the Holder hereof in writing, to purchase from the Company, at the
purchase price hereinafter specified (as adjusted from time to time, the
"EXERCISE PRICE"), up to 200,000 shares (the "WARRANT SHARES") (as adjusted from
time to time) of the Common Stock, 1.00 par value per share, of the Company (the
"COMMON STOCK"). The initial Exercise Price shall be $1.00 per share. This
Warrant may be exercised in whole or in part on an Exercise Date.
2. ISSUANCE OF WARRANT SHARES. As promptly as practicable after surrender
of this Warrant and receipt of payment of the Exercise Price, the Company shall
issue and deliver to the Holder a certificate or certificates for the Warrant
Shares purchased hereunder, in certificates of such denominations and in such
names as the Holder may specify.
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3. PAYMENT OF EXERCISE PRICE. Payment of the Exercise Price shall be made
by check made payable to the order of the Company or by wire transfer of
immediately available funds to a bank account designated by the Company [in
available funds in U.S. Dollars].
4. ADJUSTMENT FOR DIVIDENDS, DISTRIBUTIONS, SUBDIVISIONS, COMBINATIONS,
MERGERS, CONSOLIDATIONS OR SALE OF ASSETS
4.1 Manner of Adjustment.
(a) Stock Dividends, Distributions or Subdivisions. In the event the
Company shall issue shares of Common Stock in a stock dividend, stock
distribution or subdivision, the Exercise Price in effect immediately before
such stock dividend, stock distribution or subdivision shall, concurrently with
the effectiveness of such stock dividend, stock distribution or subdivision, be
proportionately decreased and the number of shares of Common Stock purchasable
by exercise of this Warrant shall be proportionately increased.
(b) Combinations or Consolidations. In the event the outstanding shares of
Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Exercise Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased and the number of shares of Common Stock purchasable
by exercise of this Warrant shall be proportionately decreased.
(c) Adjustment for Reclassification, Exchange or Substitution. In the event
that the class of securities issuable upon the exercise of this Warrant shall be
changed into the same or a different number of shares of any class or classes of
stock, whether by capital reorganization, reclassification or otherwise (other
than any event addressed by Sections 4.1(a), 4.1(b) or 4.1(d)), then and in each
such event the Holder shall have the right thereafter to exercise this Warrant
for the kind and amount of shares of stock and other securities and property
receivable upon such reorganization, reclassification, or other change, by
holders of the number of shares of the class of securities into which such
Warrant might have been exercisable for immediately prior to such
reorganization, reclassification, or change, all subject to further adjustment
as provided herein.
(d) Adjustment for Merger, Consolidation or Sale of Assets. In the event
that the Company shall merge or consolidate with or into another entity or sell
all of its assets, this Warrant shall thereafter be exercisable for the kind and
amount of shares of stock or other securities or property to which a holder of
the number of shares of Common Stock of the Company deliverable upon exercise of
this Warrant would have been entitled upon such consolidation, merger or sale;
and, in such case, appropriate adjustment (as determined in good faith by the
Company's Board of Directors) shall be made in the application of the provisions
set forth in this Section 4 with respect to the rights and interest thereafter
of the Holder of this Warrant, to the end that the provisions set forth in this
Section 4 shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter deliverable upon
the exercise of this Warrant.
4.2 Certificate as to Adjustments. Upon the occurrence of each adjustment
or readjustment of the Exercise Price pursuant to this Section 4, the Company at
its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Holder a certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based.
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4.3 Closing of Books. The Company shall at no time close its transfer books
against the transfer of any shares of Common Stock issued or issuable upon the
exercise of this Warrant in any manner which interferes with the timely and
proper issuance of such shares.
5. COVENANTS OF THE COMPANY. During the period within which the rights
represented by this Warrant may be exercised, the Company shall at all times
have authorized and reserved for the purpose of issue upon exercise of the
rights evidenced hereby, a sufficient number of shares of the class of
securities issuable upon exercise of this Warrant to provide for the exercise of
such rights. All securities which may be issued upon the exercise of the rights
represented by this Warrant shall, upon issuance, be duly authorized, validly
issued, fully paid and non-assessable and free from all taxes, liens and charges
with respect to the issue thereof. Upon surrender for exercise, this Warrant
shall be canceled and shall not be reissued; provided, however, that upon the
partial exercise hereof a substitute Warrant of like tenor and date representing
the rights to subscribe for and purchase any such unexercised portion hereof
shall be issued.
6. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. This Warrant shall not entitle
the Holder to any voting rights or any other rights as a stockholder of the
Company but upon presentation of this Warrant with the Exercise Notice duly
executed and the tender of payment of the Exercise Price at the office of the
Company pursuant to the provisions of this Warrant, the Holder shall forthwith
be deemed a stockholder of the Company in respect of the securities for which
the Holder has so subscribed and paid.
7. NO CHANGE NECESSARY. The form of this Warrant need not be changed
because of any adjustment in the Exercise Price or in the number of shares
issuable upon its exercise. A Warrant issued after any adjustment or any partial
exercise or upon replacement may continue to express the same Exercise Price and
the same number of shares (appropriately reduced in the case of partial
exercise) as are stated on this Warrant as initially issued, and that Exercise
Price and that number of shares shall be considered to have been so changed as
of the close of business on the date of adjustment.
8. ADDRESSES FOR NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing, either delivered in hand or mailed
by registered or certified mail, return receipt requested, or sent by facsimile,
and shall be deemed to have been duly made when delivered:
If to the Holder, to the Holder's address as shown on the books of the
Company; or
If to the Company, to the address set forth on the first page of this
Warrant.
9. SUBSTITUTION. In the case this Warrant shall be mutilated, lost, stolen
or destroyed, the Company shall issue a new Warrant of like tenor and
denomination and deliver the same (a) in exchange and substitution for and upon
surrender and cancellation of any mutilated Warrant, or (b) in lieu of any
Warrant lost, stolen or destroyed, upon receipt of evidence satisfactory to the
Company of the loss, theft, or destruction of such Warrant (including, without
limitation, a reasonably detailed affidavit with respect to the circumstances of
any loss, theft or destruction), and of indemnity (or, in the case of the
initial Holder or any other institutional holder, an indemnity agreement)
satisfactory to the Company.
10. TRANSFER RESTRICTIONS. This Warrant shall not be transferable by the
Holder and shall be exercisable only by the Holder. Without the prior written
consent of the Company, the Warrant shall not be assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Any attempted transfer,
assignment, pledge, hypothecation or other disposition of the Warrant or of any
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rights granted hereunder contrary to the provisions of this Section 10, or the
levy of any attachment or similar process upon the Warrant or such rights, shall
be null and void.
11. TAXES. The Company makes no representation about tax treatment to the
Holder with respect to receipt or exercise of the Warrant or acquiring, holding
or disposing of the Warrant Shares, and the Holder represents that the Holder
has had the opportunity to discuss such treatment with the Holder's tax
advisers.
12. REMEDIES. Each party stipulates that the remedies at law in the event
of any default or threatened default by the other party in the performance or
compliance with any of the terms of this Warrant may not be adequate, and that
such terms may be specifically enforced by a decree for that specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
13. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and governed by, the laws of the State of Nevada without regard
to its principles of conflicts of laws.
14. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the Holder
and the Company.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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ENOX BIOPHARMA, INC.
By: /s/ Itamar David
----------------------------------
Title: CFO
Address: 1687 West Broadway, Suite 303, Vancouver BC Canada
ACCEPTED AND AGREED:
[NITRICARE HB]
By: /s/ Jon Lundberg /s/ Eddie Weitzberg
------------------------------------- -------------------------------------
Title: Prof. Prof.
Address: Stenbocksvagen 6, S-182 62, Djursholm, Sweden
ACKNOWLEDGED:
DR. LUNDBERG JON
/s/ Jon Lundberg
- -------------------------------------
DR. WEITZBERG EDDIE
/s/ Eddie Weitzberg
- -------------------------------------
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ANNEX A
NOTICE OF EXERCISE
To: ENOX BIOPHARMA, INC.
The undersigned hereby irrevocably elects to purchase ___________ ordinary
shares of Enox Biopharma, Inc. issuable upon the exercise of the attached
Warrant and requests that a certificate for such shares be issued in the name of
the undersigned and delivered to the address stated below and, if such number of
shares shall not be all the shares that may be purchased pursuant to the
attached Warrant, that a new Warrant evidencing the right to purchase the
balance of such shares be delivered to the undersigned at the address stated
below.
Payment enclosed in the amount of USD ________________.
Dated: ____________________________
[NITRICARE HB]
Address: __________________________
Signature: ________________________
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