As Filed with the Securities and
Exchange Commission on March __, 2004
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
IR BIOSCIENCES HOLDINGS, INC.
(Exact Name of Registrant as
Specified in its Charter)
Delaware
(State or other jurisdiction of
incorporation
or organization)
|
3841
(Primary Standard Industrial
Classification
Code Number)
|
13-3301899
(I.R.S. Employer Identification
Number)
|
8655 East Via De Ventura, Suite E-155
Scottsdale, Arizona 85258
(Address of Principal Executive
Offices and Zip Code)
2003 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
(Full Title of the Plans)
Michael Wilhelm
8655 East Via De Ventura, Suite
E-155
Scottsdale, Arizona 85258
(480) 922-3926
(Name, Address, including Zip Code,
and Telephone Number, including Area Code, of Agent for Service)
Copies to
Thomas J. Poletti, Esq.
Kirkpatrick & Lockhart LLP
10100 Santa Monica Blvd., 7th Floor
Los Angeles, CA 90067
Telephone (310) 552-5000
CALCULATION OF REGISTRATION FEE
Title of securities to be
registered
|
|
Amount to be registered
|
Proposed maximum
offering price
per share(1)
|
Proposed maximum aggregate
offering price(1)
|
Amount of registration fee
|
|
Common Stock, $.001 par value
|
|
|
400,000
|
|
$
|
0.10
|
|
|
40,000
|
|
$
|
5
|
|
Common Stock, $.001 par value
|
|
|
525,800
|
|
$
|
0.50
|
|
|
262,900
|
|
$
|
33
|
|
Common Stock, $.001 par value
|
|
|
874,200
|
|
$
|
1.01
|
|
|
882,942
|
|
$
|
112
|
|
Total Registration Fee
|
|
|
1,800,000
|
|
|
|
|
|
|
|
$
|
151
|
|
(1) Estimated solely
for the purpose of calculating the amount of the registration fee in
accordance with Rule 457(h)(1) under the Securities Act, based on the price
at which options may be exercised, or if such price is not known, on the
basis of the average of the high and low prices of the common stock of the
Registrant as traded in the over-the-counter market and reported on the OTC
Electronic Bulletin Board of the National Association of Securities Dealers
on March 1, 2004. In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit plan
described herein.
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
The documents containing information
specified in this Part I are being separately provided to the Registrant's
employees, officers, directors and consultants as specified by Rule
428(b)(1) of the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents
by Reference.
The documents listed in
paragraphs (a) through (d) below have been filed with the Securities and
Exchange Commission (the "Commission") and are hereby incorporated by
reference into this Registration Statement. All documents subsequently filed
by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of
a post-effective amendment which indicates that all securities offered
herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereto from the date of filing of
such documents.
|
|
(a) |
|
Registrant's
Annual Report on Form 10-KSB for the year ended December 31, 2002 filed with the SEC on
April 15, 2003; |
|
|
(b) |
|
Registrant's
Quarterly Report on Form 10-QSB for the quarters ended March 31, 2003, June 30, 2003 and
September 30, 2003 filed with the SEC on May 15, 2003, August 19, 2003
and December 29, 2003, respectively. |
|
|
(c) |
|
Registrant's
Current Reports on Form 8-K filed with the SEC on July 7, 2003, July 18, 2003, August 29,
2003 and December 29, 2003; and |
|
|
(d) |
|
Registrant's
Definitive Information Statements filed with the SEC on June 9, 2003 and August 7, 2003. |
Item 4. Description of Securities.
Common Stock
The
Company is authorized to issue 100,000,000 shares of Common Stock, $.001 par
value per share.
The
holders of common stock are entitled to one vote per share on all matters to
be voted upon by the stockholders. The holders of common stock are entitled
to receive ratably dividends, if any, as may be declared from time to time
by the board of directors out of funds legally available for that purpose.
In the event of our liquidation, dissolution or winding up, the holders of
common stock are entitled to share ratably in all assets remaining after
payment of liabilities. The common stock has no preemptive or conversion
rights or other subscription rights. There are no redemption or sinking fund
provisions applicable to the common stock. All outstanding shares of common
stock are fully
paid and
non-assessable.
Item 5. Interests of Named Experts
and Counsel.
Kirkpatrick & Lockhart LLP, Los
Angeles, California, will pass for us on the validity of the common stock
offered hereby. A partner of Kirkpatrick & Lockhart LLP owns options to
acquire an aggregate of 35,000 shares of our common stock at an exercise
price of $.60 per share.
Item 6. Indemnification of
Directors and Officers.
Section 145 of the Delaware General
Corporation Law allows for the indemnification of officers, directors, and
other corporate agents in terms sufficiently broad to indemnify such persons
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933. Article 7 of
the Registrant's Certificate of Incorporation,
as amended, and Article VII, Section 7 of the Registrant's Amended and
Restated Bylaws provide for indemnification of the Registrant's directors,
officers, employees, and other agents to the extent and under the
circumstances permitted by the Delaware General Corporation Law. The
Registrant has also entered into agreements with its directors and executive
officers that will require the Registrant, among other things, to indemnify
them against certain liabilities that may arise by reason of their status or
service as directors to the fullest extent not prohibited by law to the
extent such costs or expenses are not covered by existing directors and
officers insurance. The Registrant carries directors and officers liability
insurance covering its directors and officers against liability asserted
against or incurred by the person arising out of his or her capacity as a
director or officer, including any liability for violations of the
Securities Act or the Exchange Act, subject to some exclusions and coverage
limitations.
Item 7. Exemption From Registration
Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Numbers
|
Description
|
|
|
4.1
|
2003 Stock Option, Deferred Stock
and Restricted Stock Plan.
|
4.2
|
Form of Stock Option Agreement
(Employee).
|
4.3
|
Form of Stock Option Agreement
(Executive).
|
4.4
|
Form of Stock Option Agreement
(Super Executive).
|
4.5
|
Form of Stock Option Agreement
(Other)
|
4.6
|
Form of Restricted Stock Award
Agreement (Employee)
|
4.7
|
Form of Restricted Stock Award
Agreement (Executive)
|
4.8
|
Form of Restricted Stock Award
Agreement (Super Executive)
|
4.9
|
Form of Stock Award Agreement
(Other)
|
5.1
|
Opinion of Kirkpatrick & Lockhart
LLP.
|
23.1
|
Consent of Singer Lewak Greenbaum
& Goldstein LLP
|
23.2
|
Consent of Stonefield Josephson, Inc.
|
23.3
|
Consent of Kirkpatrick & Lockhart
LLP (contained in Exhibit 5).
|
Item 9. Undertakings.
The undersigned Registrant hereby
undertakes:
(1) To file, during any
period in which offers or sales are being made, a post-effective amendment
to this Registration Statement to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from
registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
The undersigned Registrant
hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification
by the Registrant for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions referenced in Item 6 of this Registration
Statement or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
Scottsdale, State of Arizona, on this 11th
day of March, 2004.
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IR BIOSCIENCES
HOLDINGS, INC. |
|
|
|
|
By: |
/s/ MICHAEL WILHELM
|
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Michael Wilhelm |
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below constitutes and appoints
Michael Wilhelm as his true and lawful attorney-in-fact and agent, with full
power of substitution for him in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
SIGNATURE
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TITLE
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DATE
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|
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/s/ MICHAEL WILHELM
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Chief Executive Officer and
Director (Principal Executive Officer)
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March 11, 2004
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Michael Wilhelm
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/s/ ERIC HOPKINS
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Chief Financial Officer
(Principal Accounting Officer)
|
|
March 11, 2004
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Eric Hopkins
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/s/ MARK WITTEN
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Director
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|
March 11, 2004
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Mark Witten
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/s/ DAVID HARRIS
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Director
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March 11 2004
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David Harris
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/s/ THEODORE STAAHL
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Director
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March 11, 2004
|
Theodore Staahl
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EXHIBIT INDEX
Exhibit
Numbers
|
Description
|
|
|
4.1
|
2003 Stock Option, Deferred Stock
and Restricted Stock Plan.
|
4.2
|
Form of Stock Option Agreement
(Employee).
|
4.3
|
Form of Stock Option Agreement
(Executive).
|
4.4
|
Form of Stock Option Agreement
(Super Executive).
|
4.5
|
Form of Stock Option Agreement
(Other)
|
4.6
|
Form of Restricted Stock Award
Agreement (Employee)
|
4.7
|
Form of Restricted Stock Award
Agreement (Executive)
|
4.8
|
Form of Restricted Stock Award
Agreement (Super Executive)
|
4.9
|
Form of Stock Award Agreement
(Other)
|
5.1
|
Opinion of Kirkpatrick & Lockhart
LLP.
|
23.1
|
Consent of Singer Lewak Greenbaum
& Goldstein LLP
|
23.2
|
Consent of Stonefield Josephson, Inc.
|
23.3
|
Consent of Kirkpatrick & Lockhart
LLP (contained in Exhibit 5).
|