<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
X Quarterly report pursuant to Section 13 or 15(d) of the Securities
_____ Exchange Act of 1934 for the quarterly period ended March 31, 1995.
_____ Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from _____ to _____.
Commission File Number O-8092
OXIS INTERNATIONAL, INC.
A Delaware corporation
I.R.S. Employer Identification No. 94-1620407
6040 N. Cutter Circle, Suite 317
Portland, OR 97217
Telephone: (503) 283-3911
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO _____
-----
At March 31, 1995, the issuer had outstanding the indicated number of shares of
common stock: 9,322,762 (93,300 additional shares to be issued)
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended
March 31
------------------------
1995 1994
------------ ----------
<S> <C> <C>
Revenues:
Product sales $2,075,000 $ 934,000
Royalties 51,000 50,000
---------- ----------
Total revenues 2,126,000 984,000
Cost and expenses:
Cost of sales 1,177,000 624,000
Research and development 1,029,000 216,000
Selling, general and administrative 645,000 342,000
---------- ----------
Total costs and expenses 2,851,000 1,182,000
---------- ----------
Operating loss (725,000) (198,000)
Interest income 6,000 11,000
Interest expense (38,000) --
---------- ----------
Net loss $ (757,000) $ (187,000)
========== ==========
Net loss per share $ (.08) $ (.04)
========== ==========
Weighted average number of
shares used in computation 9,377,705 4,982,670
========== ==========
</TABLE>
1
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CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
1995 1994
(Unaudited)
------------ -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 724,000 $ 936,000
Certificates of deposit 198,000 496,000
Accounts receivable 1,002,000 740,000
Inventories 653,000 673,000
Prepaid and other 313,000 228,000
----------- -----------
Total current assets 2,890,000 3,073,000
Property and equipment, net 1,286,000 1,298,000
Assets under capital leases, net 1,422,000 1,340,000
Technology for developed products
and custom assays, net 5,189,000 5,215,000
Other assets 300,000 268,000
----------- -----------
Total assets $11,087,000 $11,194,000
=========== ===========
</TABLE>
2
<PAGE>
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
1995 1994
(Unaudited)
------------ ------------
<S> <C> <C>
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable to bank $ 198,000 $ 340,000
Other notes payable 766,000 --
Accounts payable 2,066,000 1,562,000
Customer deposits 250,000 1,116,000
Accrued liabilities 661,000 628,000
Current portion of capital lease obligations 431,000 473,000
------------ ------------
Total current liabilities 4,372,000 4,119,000
Capital lease obligations 267,000 297,000
Other liabilities 76,000 79,000
Shareholders' equity:
Preferred stock - $.01 par value; 5,000,000 shares
authorized; 40,000 shares issued -- --
Common stock - $.50 par value; 25,000,000 shares
authorized; 9,416,062 shares, including
93,300 shares to be issued (Note 4) 4,708,000 4,661,000
Additional paid in capital 20,338,000 20,230,000
Accumulated deficit (18,896,000) (18,139,000)
Accumulated translation adjustments 222,000 (53,000)
------------ ------------
Total shareholders' equity 6,372,000 6,699,000
------------ ------------
Total liabilities and shareholders' equity $ 11,087,000 $ 11,194,000
============ ============
</TABLE>
3
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CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------
1995 1994
<S> <C> <C>
Cash flows from operating activities:
Net loss $(757,000) $ (187,000)
Adjustments to reconcile net loss to cash provided
by (used for) operating activities:
Depreciation and amortization 385,000 15,000
Changes in assets and liabilities:
Accounts receivable (262,000) 411,000
Inventories 20,000 30,000
Other current assets 44,000 13,000
Accounts payable 504,000 165,000
Customer deposits (866,000) --
Accrued liabilities 33,000 45,000
---------- ----------
Net cash provided by (used for) operating activities (899,000) 492,000
---------- ----------
Cash flows from investing activities:
Redemption of certificates of deposit 298,000 --
Purchases of equipment -- (7,000)
Deferred stock issuance costs (23,000) --
Other, net (137,000) --
---------- ----------
Net cash provided by (used for) investing activities 138,000 (7,000)
Cash flows from financing activities:
Proceeds from issuance of notes 766,000 --
Repayment of short-term bank borrowings (142,000) --
Repayment of long-term debt and capital lease obligations (75,000) --
---------- ----------
Net cash provided by financing activities 549,000 --
---------- ----------
Net increase (decrease) in cash and cash equivalents (212,000) 485,000
Cash and cash equivalents - beginning of period 936,000 758,000
---------- ----------
Cash and cash equivalents - end of period $ 724,000 $1,243,000
========= ==========
</TABLE>
4
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CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. FINANCIAL STATEMENTS AND CONDENSED NOTES
The unaudited consolidated financial statements, which have been prepared in
accordance with the instructions to Form 10-Q, do not include all of the
information and notes required by generally accepted accounting principles
for complete financial statements. All adjustments considered necessary by
management for a fair presentation have been included. Operating results for
interim periods are not necessarily indicative of the results that may be
expected for the full year.
An annual report (Form 10-K) has been filed with the Securities and Exchange
Commission ("Commission") for the year ended December 31, 1994. That report
contains, among other information, a description of the Company's business,
audited financial statements, notes to the financial statements, the report
of the independent auditors and management's discussion and analysis of
results of operations and financial condition. Readers of this report are
presumed to be familiar with that annual report.
The functional currency of Bioxytech S.A. ("Bioxytech"), the Company's
foreign subsidiary, is the French franc. Bioxytech's assets and liabilities
are translated using the exchange rate at the end of the period. Its
statement of operations is translated at the average exchange rate during
the period that Bioxytech's revenues and expenses are included in the
consolidated statement of operations. Gains or losses resulting from foreign
currency translation are accumulated as a separate component of
shareholders' equity.
2. BASIS OF PRESENTATION
These financial statements have been prepared on a going concern basis which
contemplates the realization of assets and the satisfaction of liabilities
in the normal course of business. The Company has incurred losses in each of
the last three years, and for the quarter ended March 31, 1995. As of March
31, 1995, the Company's current liabilities exceeded its current assets by
$1,482,000. These and other factors indicate that the Company may be unable
to continue as a going concern. The Company's continuation as a going
concern is contingent upon its ability to obtain additional financing, and
to generate revenue and cash flow to meet its obligations on a timely basis.
These financial statements do not include any adjustments relating to the
recoverability and classification of recorded asset amounts or the amounts
and classification of liabilities that may be necessary should the Company
be unable to continue as a going concern.
The Company has engaged an investment banking firm on a best-efforts basis
to assist it in completing a private placement of equity securities. The
Company is seeking to raise from $4,500,000 to $9,000,000 which management
believes would fund operations for up to two years before further financing
would be necessary. Certain of the former Bioxytech shareholders have agreed
to participate in the private placement, and, in February 1995,
5
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advanced $766,000 to the Company under secured promissory notes as described
in Note 4. Further, in May 1995 a major customer advanced $600,000 to the
Company under a secured promissory note due in May 1996.
Pending completion of the $4,500,000 to $9,000,000 private placement of
securities, the Company is attempting to raise through the issuance of
either debt or equity securities, a smaller amount of additional capital
($1,000,000 to $2,000,000) that management believes would allow the Company
to continue operating. If the Company is able to raise only an additional
$1,000,000 to $2,000,000 before the end of June 1995, it intends to curtail
its operations through the reduction of personnel and facilities costs and
by slowing its research and development efforts. If the Company does not
raise any additional capital before the end of June 1995, it may be forced
to seek protection of the courts through reorganization, bankruptcy or
insolvency proceedings.
3. INVENTORIES
Inventories are stated at the lower of cost or market. Cost has been
determined by using the first-in, first-out and specific identification
methods. Inventories at March 31, 1995 and December 31, 1994, consisted of
the following:
<TABLE>
<CAPTION>
March 31, December 31,
1995 1994
<S> <C> <C>
Raw materials $181,000 $179,000
Work in process 300,000 357,000
Finished goods 172,000 137,000
-------- --------
Total $653,000 $673,000
======== ========
</TABLE>
4. NOTES PAYABLE
In February 1995 certain of the Company's shareholders, who were former
Bioxytech shareholders, advanced $766,000 to the Company pursuant to
promissory notes. The notes are due in February 1996 and bear interest at 8%
per year. The notes are secured by certain of the Company's products and
related assets and are subordinated to the major customer advance as
discussed above in Note 2.
As additional consideration for the loans, the Company has agreed to issue
93,300 shares of its common stock to the lenders, which have been recorded
as a cost of debt issuance and are being amortized over one year, the life
of the notes. Further, the Company has agreed to issue warrants entitling
the lenders to purchase equity securities. The terms and number of warrants
to be issued are directly tied to terms to be developed for investors that
participate in the private placement of equity securities that the Company
is pursuing.
6
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
ACQUISITIONS
In September 1994, the Company significantly increased its scientific and
technical staff, patent application portfolio, current product offerings,
research and development programs, research and manufacturing facilities and
its customer base by acquiring Bioxytech and International BioClinical, Inc.
("IBC"). Both acquisitions were completed through the exchange of stock, and
were accounted for as purchases; accordingly, the acquired assets and
liabilities were recorded at their estimated fair values as of the date of
acquisition. IBC was merged into the Company. Bioxytech operates as a
subsidiary of the Company.
Because the acquisitions have been accounted for as purchases, the Company's
consolidated results of operations include the operating results of the
acquired businesses from the date of acquisition only. Therefore, the
results of operations of the acquired businesses are included in the
consolidated statement of operations for the first quarter of 1995, but not
for the first quarter of 1994.
The increased research and development investment, particularly in
Bioxytech's programs, has placed significant demand on the Company's limited
financial resources. See "Financial Condition, Liquidity and Capital
Resources" below.
FINANCIAL CONDITION, LIQUIDITY AND CAPITAL RESOURCES
OXIS' financial condition and liquidity have declined further during the
first quarter of 1995. Cash and certificates of deposit at March 31, 1995
totaled $922,000, down from $1,432,000 at December 31, 1994. The Company had
a working capital deficit of $1,046,000 at December 31, 1994. The working
capital deficit increased to $1,482,000 at March 31, 1995 as a result of the
loss for the quarter.
The Company expects to continue to report losses in the near term as the
level of expenses is expected to continue to exceed revenues. The Company
must raise additional capital resources during the second quarter of 1995.
Failure to raise such additional capital would cause the Company to severely
curtail or cease its operations. For more information concerning the
Company's ability to continue as a going concern, see Note 2 to the
consolidated financial statements.
The Company has engaged an investment banking firm on a best-efforts basis
to assist it in completing a private placement of equity securities. The
Company is seeking to raise from $4,500,000 to $9,000,000. OXIS cannot
predict the timing or the probability of success of this effort, and no
assurances can be given that the Company will successfully raise the needed
capital. Certain former shareholders of Bioxytech have committed to
participate in the anticipated private placement. During February 1995,
these former Bioxytech
7
<PAGE>
shareholders advanced the Company $766,000 under secured promissory notes
payable in 1996. Further, in May 1995 a major customer advanced $600,000 to
the Company under a secured promissory note due in May 1996. These advances,
and the forbearance of certain major trade creditors and lessors have made
it possible for the Company to continue to operate well into the second
quarter of 1995. Assuming that the Company successfully completes its
$4,500,000 to $9,000,000 private placement of equity securities, it is
anticipated that further financing would be needed within approximately 24
months to allow the Company to continue its planned research and development
programs and marketing of additional products.
While the Company believes that its new products and technologies show
considerable promise, its ability to realize significant revenues therefrom
is dependent upon the Company's success in developing business alliances
with biotechnology and/or pharmaceutical companies to develop and market
these products. There is no assurance that the Company's effort to develop
such business alliances will be successful. Further, there can be no
assurances that the sales of recent years to Sanofi Winthrop (35% of 1994
revenues) will continue. Sanofi Winthrop is currently conducting a second
Phase III trial on its drug, DISMUTEC/TM/ (a coupled form of OXIS' bovine
superoxide dismutase) to treat head trauma; the Company cannot predict
whether these trials will conclude successfully. European sales and
royalties continue to decline due to product withdrawals in four European
countries in 1994. If bovine superoxide dismutase is withdrawn in Spain,
revenues will decrease further. Therefore, no assurances can be given that
the Company will have adequate liquidity and capital resources to continue
operating beyond the second quarter of 1995. The Company cannot predict the
source, terms, amount, form, and/or availability of additional capital to
fund its operations for the remainder of 1995 and beyond.
Pending completion of the $4,500,000 to $9,000,000 private placement of
securities, the Company is attempting to raise through the issuance of
either debt or equity securities, a smaller amount of additional capital
($1,000,000 to $2,000,000) that management believes would allow the Company
to continue operating. If the Company is able to raise only an additional
$1,000,000 to $2,000,000 before the end of June 1995, it intends to curtail
its operations through the reduction of personnel and facilities costs and
by slowing its research and development efforts. If the Company does not
raise any additional capital before the end of June 1995, it may be forced
to seek protection of the courts through reorganization, bankruptcy or
insolvency proceedings.
8
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RESULTS OF OPERATIONS - THREE MONTHS ENDED MARCH 31, 1995 COMPARED WITH THREE
MONTHS ENDED MARCH 31, 1994
REVENUES
The Company's product sales for the quarters ended March 31, 1995 and
1994 were as follows:
<TABLE>
<CAPTION>
1995 1994
<S> <C> <C>
Bovine superoxide dismutase (bSOD)
for research and human use $1,121,000 $827,000
Diagnostic and research assays 559,000 --
Palosein(R) (bSOD for veterinary use) 190,000 71,000
Other 205,000 36,000
---------- --------
$2,075,000 $934,000
========== ========
</TABLE>
Sales of bulk bSOD for research and human use increased by $294,000 in the
first quarter of 1995 as compared to the first quarter of 1994. Bulk bSOD
sales in the first quarter of 1995 include a $948,000 sale of bSOD to Sanofi
Winthrop Inc. Further sales to Sanofi Winthrop depend on Sanofi Winthrop's
plans for additional clinical trials, regulatory approval and
commercialization of its new pharmaceutical for closed head injury and on
results of negotiations between the Company and Sanofi Winthrop. Bulk bSOD
sales in the first quarter of 1994 included sales to OXIS' German licensee;
no sales to the German licensee have occurred in 1995, nor are any
anticipated during the remainder of 1995. Sales of bulk bSOD to OXIS'
Spanish licensee were $133,000 in the first quarter of 1994 and $169,000 in
the first quarter of 1995. Due to regulatory actions in four European
countries in 1994, the Company's licensee for Spain has had informal
discussions with the Spanish regulatory authorities regarding the Company's
bSOD product. Although no action has been taken by those authorities with
regard to the Company's product, future sales in Spain may be adversely
affected by either regulatory action in Spain, or safety concerns stemming
from actions in other countries. In addition, the Company's German licensee
has advised the Company that its Spanish subsidiary will be voluntarily
withdrawing its bSOD product from the Spanish market. Whether the impact of
this withdrawal on sales to the Company's Spanish licensee will be positive
or negative cannot be determined.
Sales of diagnostic and research assays for the first quarter of 1995
totaled $559,000. The diagnostic assay products were acquired through the
merger with IBC. The research assays were obtained in the acquisition of
Bioxytech. Other product sales also increased as a result of inclusion in
1995 of sales of products of the acquired companies.
9
<PAGE>
Sales of Palosein(R), which was reintroduced to the U.S. market in 1993
increased from $71,000 in the first quarter of 1994 to $190,000 in the first
quarter of 1995 as a result of an active marketing campaign, which the
Company intends to continue. In addition, in the first quarter of 1995, the
Company obtained approval for the veterinary use of Palosein(R) in Canada,
and began selling Palosein(R) through a Canadian distributor.
Royalty income of $51,000 recognized in the first quarter of 1995 was
similar to the amount for the first quarter of 1994. The Company anticipates
that its royalty revenues from licensees of bSOD products for 1995 will be
substantially less than the 1994 amount due to product withdrawals in
Europe.
COSTS AND EXPENSES
Cost of sales as a percentage of product sales decreased from 67% in the
first quarter of 1994 to 57% in the first quarter of 1995. This decrease in
cost was primarily the net result of three factors. First, the cost of sales
in the first quarter of 1994 was higher than historical levels due to a
significant sale of bulk bSOD at less than the Company's historic profit
margin. Second, Palosein(R) sales, which more than doubled in 1995, have a
lower cost than bulk bSOD sales. In addition, the decreases in cost of sales
as a percentage of product sales were partially offset by the cost of the
products of the businesses acquired in the third quarter of 1994. The cost
of these products as a percentage of sales is greater than the cost of
Palosein(R) and bulk bSOD sales due to the amortization of acquired
technology which is included in the cost of sales of the acquired products.
Research and development expenses increased from $216,000 in the first
quarter of 1994 to $1,029,000 in the first quarter of 1995. The 1995
increase resulted primarily from the cost of the research and development
activities associated with acquired potential pharmaceuticals. If the
Company is able to obtain sufficient capital funding, it expects its
investment in research and development activities to continue at a level
substantially higher than historical amounts.
Selling, general and administrative expenses increased from $342,000 in the
first quarter of 1994 to $619,000 in the first quarter of 1995. This
increase is primarily due to the inclusion of selling, general and
administrative costs of the companies acquired in 1994.
The lease of the Company's Mountain View, California, facility expires at
the end of June 1995, and management does not intend to renew this lease.
10
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INTEREST INCOME AND EXPENSE
Interest income decreased in the first quarter of 1995 as compared with the
first quarter of 1994 due to a decline in certificates of deposit. These
funds were primarily used to support research and development programs,
particularly at the Company's French subsidiary.
Interest expense in 1995 relates primarily to the capitalized lease
obligations of the Company's French subsidiary and short-term notes payable.
NET LOSS
The Company continued to experience losses in the first quarter of 1995. The
first quarter 1995 loss of $757,000 ($.08 per share) was $570,000 greater
than the $187,000 ($.04 per share) loss for the first quarter of 1994. The
increase in the net loss is primarily due to the increased research and
development expenditures by the Company, particularly by the businesses
acquired in the third quarter of 1994.
The Company expects to incur a substantial net loss for 1995. If additional
capital is raised through a private placement of securities (See Financial
Condition, Liquidity and Capital Resources), the Company plans to continue
to invest in research and development activities and incur marketing, sales
and administrative expenses in amounts greater than its anticipated near-
term product margins. If the Company is unable to raise sufficient
additional capital, it will have to cease, or severely curtail, its
operations. In the event that operations are severely curtailed, so that
cash expenditures for operations are equal to receipts from product sales
and royalties, the Company expects to continue to report net losses due to
the amortization and potential write down of various assets.
11
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PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits - See Exhibit Index on page 13.
(b) Reports on Form 8-K.
No current reports (Form 8-K) have been filed with the Securities and Exchange
Commission during the quarter for which this report is filed.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OXIS International, Inc.
May 9, 1995 By s/Ray R. Rogers
-----------------
Ray R. Rogers
Chairman of the Board
May 9, 1995 By s/Jon S. Pitcher
------------------
Jon S. Pitcher
Chief Financial Officer
12
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EXHIBIT INDEX
Exhibit Page
Number Description of Document Number
10(a) Security Agreement dated February 7, 1995 14
between Alta-Berkeley L.P. II and Innolion S.A.,
and OXIS International, Inc., and five related
promissory notes.
27(a) Financial data schedule 29
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EXHIBIT 10(A)
SECURITY AGREEMENT
------------------
THIS SECURITY AGREEMENT is entered into as of the 7th day of February 1995,
by and between Alta-Berkeley L.P. II and Innolion S.A. (the "Security Agents")
for themselves and for Sofinnova Capital F.C.P.R., Sofinnova S.A. and Finovelec
S.A. (collectively, the "Secured Parties") and OXIS International, Inc., a
Delaware corporation, having a principal place of business at 6040 N. Cutter
Circle, Suite 317, Portland, Oregon, 97217 ("Debtor").
RECITALS:
---------
WHEREAS, concurrently herewith, the Debtor is executing and delivering to
each of the Secured Parties a certain Secured Promissory Notes dated the date
hereof (the "Notes"), which represent a debt owed by the Debtor to each Secured
Party;
WHEREAS, the parties desire that Debtor's obligations under the Notes be
secured by a security interest in certain specific assets of Debtor, which
security interest shall have the priority described herein with respect to any
interests of third parties; and
WHEREAS, the Secured Parties have designated the Security Agents to
represent them and act on their behalf under this Security Agreement.
NOW THEREFORE, in consideration of the extension of credit by the Secured
Parties as evidenced by the Notes and of other good and valuable consideration
receipt of which is hereby acknowledged, Debtor and the Secured Parties agree as
follows:
1. Security. Debtor grants to the Secured Parties a continuing security
--------
interest in all of the property set forth on Exhibit "A" hereto (consisting of
Exhibits "A-1" and "A-2"), which is hereinafter referred to as "Collateral".
The Security Agents and the Debtor agree that initially the Collateral shall
consist of the property described in Exhibit "A-1" hereto, and the Debtor
represents and warrants that the security interest of the Secured Parties in
such Collateral has and will have priority over the claims, liens, security
interests and other encumbrances of all of the Debtor's creditors other than
United States National Bank of Oregon (the "Bank"); and that the maximum
liability of the Debtor to such Bank subject to such Bank's security interest is
not greater than, and will not exceed, $425,000. In the event that the Debtor
is able to obtain the release of the security interest of Bank in the portion of
such Collateral described in Exhibit "A-2" hereto, the Security Agents agree
that they will release the security interest of the Secured Parties in all
Collateral other than that portion which is described in Exhibit "A-2", subject
only to receipt of appropriate confirmation of the release of Bank's security
interest and the Debtor's representation and warranty that the security interest
of the Secured Parties in such Collateral will thereafter constitute a
continuing first priority security interest in such Collateral free and clear of
any claims, liens, security interests or other encumbrances of any other
creditor of the Debtor.
2. Obligations Secured. The foregoing security interest is to secure
-------------------
performance of all Debtor's payment and other obligations under this Security
Agreement and the Notes. All payments due to the Secured Parties under the
Notes or this Security Agreement are hereinafter referred to as "Debt". The
interest of the Secured Parties in the Collateral will rank pari passu in
accordance with the pro rata amount of Debt held by each Secured Party.
3. Payment Obligations. Debtor will immediately pay (a) all Debt when
-------------------
due, (b) Secured Parties' costs of collecting the Debt, or realization on
Collateral, and any expenditure of Secured Parties pursuant hereto, including
reasonable attorneys' fees and expenses, with interest at the maximum rate
14
<PAGE>
allowed by law from date of expenditure, and (c) any deficiency after
realization on Collateral. The obligations of the Debtor hereunder and under the
Notes are full recourse obligations.
4. Title to Collateral. As to all Collateral (unless specifically
-------------------
otherwise agreed by the Secured Parties in writing) Debtor will, except as
otherwise disclosed or contemplated hereunder, not sell, contract to sell,
lease, encumber, pledge, license, assign or transfer any part of the Collateral
(other than is necessary to operate the Debtor's business in the ordinary
course, including, without limitation, the licensing or sale of such Collateral,
any action necessary with respect to research and development projects or
similar projects or transactions with third parties to the extent consistent
with past practice and provided such action does not result in any material
diminution in the value of the Collateral) until the Debt has been paid in full.
5. Financing Statements. In connection with this Security Agreement,
--------------------
Debtor agrees that it shall promptly take all action necessary to execute and
file in Debtor's name any financing statements and amendments thereto and any
other filings required to perfect Secured Parties' security interest hereunder
(including with the Patent and Trademark Office to the extent applicable), all
to protect and preserve the Collateral and Secured Parties' rights hereunder.
6. Remedies. On Debtor's default, the Secured Parties shall have all
--------
rights and remedies given by law, and, at the Security Agents' option, after
providing Debtor with forty-five (45) days' notice, may sell, in one or more
sales Collateral in any county where Secured Party or Debtor has an office or in
any other commercially reasonable manner permitted by law. Secured Party may
purchase at such sale.
7. Defaults. The following events are defaults of the Debtor hereunder:
--------
(a) Debtor's breach of, or failure to pay or perform under, this
Security Agreement or the Notes (and breach shall include any event or time if
thereupon or at such time this Security Agreement ceases to create a valid and
perfected security interest of the type and in the property as described
herein), provided that a breach or failure to perform any non-payment obligation
thereunder that can be cured shall be a default only if (i) with respect to any
failure to file a financing statement or other filing than the initial financing
statement to be filed with the Secretary of State of the State of Oregon and
Multnomah County and filings with the Patent and Trademark Office, to the extent
applicable (which shall be filed no later than February 16, 1995), such breach
or failure is not cured within five business days after notice of such failure
is given to the Debtor, and (ii) with respect to any other breach or failure to
perform a non-payment obligation, such breach or failure is not cured within 45
days after notice of such failure is given to the Debtor;
(b) any levy or seizure against the Debtor or any of the Collateral,
provided that the levy or seizure of property of the Debtor other than the
Collateral shall be a default only if the Debtor is unable to remove or cause
the release of such levy or seizure within 45 days of the occurrence thereof;
(c) assignment for creditors, appointment of receiver, or the filing of
any petition under bankruptcy or debtor's relief laws of, by or against Debtor.
8. Additional Action; Authority of Security Agents. To the extent
-----------------------------------------------
reasonably requested by the Secured Parties, the Debtor agrees to take such
additional action as may be required to accomplish the purposes of this Security
Agreement as set forth herein. Each Security Agent acting alone shall have the
authority to bind all of the Secured Parties with respect to all matters
concerning this Security Agreement.
9. Notices. Any notice or other communication required or which may be
-------
given hereunder shall be in writing and shall be delivered personally,
telegraphed or telexed or sent by courier or sent by certified or registered
mail, postage prepaid, and shall be deemed given when so delivered personally,
telegraphed, telexed or sent by courier or, if mailed, upon receipt thereof, at
the addresses as indicated
15
<PAGE>
above or below, or at such other address as may be designated by notice given to
the other parties hereto in the foregoing manner.
10. Miscellaneous. Unless otherwise defined, words used herein have the
-------------
meaning given them in the Oregon Uniform Commercial Code. This Security
Agreement benefits and binds Secured Parties' and Debtor's successors and
assigns. This Security Agreement contains the entire security agreement between
Secured Parties and Debtor. This Security Agreement may be executed in one or
more counterparts, each of which taken together shall constitute one and the
same instrument. Headings are included for convenience only, and will not be
used in any way in the interpretation of this Security Agreement. This Security
Agreement shall be governed by the laws of the State of Oregon. If any
provision of this Security Agreement shall be held unenforceable, such
unenforceability shall not affect the enforceability of any other provision of
this Security Agreement. This Security Agreement may be modified, amended,
superseded or canceled, and any of the provisions hereof may be waived, only by
a written instrument executed by the Security Agents (on behalf of the
themselves and the Secured Parties) and Debtor or in, the case of waiver, by the
party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement as of the day and year first above written.
"Security Agents"
Alta-Berkeley L.P. II, for itself and the other
Secured Parties
By: s/George Vigent
-------------------------------------
Name: George Vigent
-------------------------------------
Title: Attorney-in-Fact
-------------------------------------
Address:
-------------------------------------
-------------------------------------
Innolion S.A., for itself and the other Secured
Parties
By: s/Valice
-------------------------------------
Name: Valice
-------------------------------------
Title: Director General Adjunct
-------------------------------------
Address:
-------------------------------------
-------------------------------------
"Debtor"
OXIS INTERNATIONAL, INC., a Delaware
corporation
By: s/Ray R. Rogers
-------------------------------------
Name: Ray R. Rogers
-------------------------------------
Its: Chairman
-------------------------------------
16
<PAGE>
EXHIBIT "A-1"
COLLATERAL
----------
The Collateral consists of the following property of the Debtor now owned
or hereafter acquired:
(a) all accounts, instruments, chattel paper, general intangibles, patents,
trademarks, inventory, equipment, furniture and fixtures, and all other assets
and property, both real and personal (except for the Debtor's ownership interest
in Bioxytech S.A.) and whenever so located, now or hereafter owned or acquired
by Debtor, all guarantees and other security therefor, and all of Debtor's books
and records relating thereto; and
(b) all rights to insurance and proceeds thereof covering any of such
Collateral; and
(c) all accounts and note receivable; and
(d) all other proceeds, products or replacements of any of the foregoing,
accessions to any for the foregoing, rights to payments in respect or any of the
foregoing, and any property that Debtor may acquire or receive on account of, in
exchange for or upon sale or other disposition of any of the foregoing.
17
<PAGE>
EXHIBIT "A-2"
COLLATERAL
----------
Upon satisfaction of the conditions described in the last sentence of
Section 1 above, the Collateral will consist of the Debtor's clinical
diagnostics products more particularly described as follows and all related
contract rights (including without limitation all patents, trademarks, and
general intangibles) inventory, and equipment directly used in the manufacture
of such diagnostics, now owned or hereafter acquired and necessary or used by
the Debtor to exploit such products:
- --Theophylline
- --Amikacin
- --Gentamicin
- --Teicoplanin
- --Tobramycin
- --Vancomycin
- --Carbamazepine
- --Phenobarbital
- --Phenytoin
- --Valproic Acid
- --Digitoxin
- --Digoxin
- --Quinidine
Debtor represents that any financing statement or other filing made
pursuant to this Security Agreement with respect to the foregoing will describe
accurately and with particularity the items of Collateral described above.
18
<PAGE>
SECURED PROMISSORY NOTE
$235,503.00 FEBRUARY 7, 1995
FOR VALUE RECEIVED, OXIS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Alta-Berkeley L.P. II ("Lender"),
the sum of ONE HUNDRED SEVENTEEN THOUSAND SEVEN HUNDRED FIFTY-ONE AND 50/100
DOLLARS ($117,751.50) in lawful money of the United States of America which
shall be legal tender for the payment of debts from time to time, together with
interest on the principal amount hereof remaining outstanding and unpaid, from
the date hereof until maturity, at the rate of eight percent (8%) per annum
(computed on the actual number of days elapsed over a year of 365 days). In
addition, on February 24, 1995, the Lender will deliver $117,751.50 (the "Second
Tranche") to the Company, thereby increasing the principal balance of this
Promissory Note to $235,503.00. The issuance of the warrant and the delivery of
the shares of the Company's Common Stock to Lender described herein is dependent
and expressly conditioned upon (provided that an Event of Default (below
defined) has not occurred) the Lender delivering the Second Tranche on or before
February 24, 1995 (the "Second Tranche February 24 Delivery Obligation"). The
failure of the Lender to deliver, or to give irrevocable instructions for the
wire transfer of, the Second Tranche on or before February 24, 1995 will result
in the Company having no obligation to issue the warrant or deliver any shares
of Common Stock described below.
The principal balance evidenced by this Promissory Note ("Note"), and any
accrued but unpaid interest, shall be due and payable in full on February 5,
1996 (the "Due Date").
The Company shall have the privilege to prepay at any time, and from time
to time, all or any part of the principal amount of this Note and any accrued
interest thereon, without notice, penalty or fee.
The occurrence or existence of any one of the following events or
conditions shall constitute an "Event of Default" under this Note:
(a) any principal of or interest on this Note shall not have been paid
on February 5, 1996; or
(b) the Company makes an assignment for the benefit of creditors, or
applies to any tribunal for the appointment of a trustee or receiver of a
substantial part of the assets of the Company, or commences, or has
commenced against it, any proceedings relating to the Company under any
bankruptcy, reorganization, arrangement, readjustment or debts or other
insolvency law of any jurisdiction; or an order is entered appointing such
trustee or receiver, or adjudicating the Company bankrupt, or approving the
petition in any such proceedings; or
(c) a breach of any of the nonpayment terms of this Note by the
Company which is not cured by the Company within forty-five (45) days of
receipt of notice by the Company or a breach of the terms of the Security
Agreement which is not cured (where cure is possible and permitted) within
the periods provided in the Security Agreement.
This Note is secured by and is subject to that certain Security Agreement
dated as of the date hereof between the Company and the Security Agents on
behalf of themselves, the Lender and other lenders. The Lender acknowledges it
is aware of the terms of the Security Agreement and authorizes the Security
Agents to act thereunder and as the Security Agents may determine in their
reasonable discretion.
The Company expressly agrees that upon the happening or occurrence of an
Event of Default, Lender may at its option, declare the unpaid principal balance
of this Note and all interest then accrued hereon, at once due and payable; and
in such event if this Note is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through any judicial or
other proceeding whatsoever, then the Company agrees and promises to pay
reasonable attorneys' fees and expenses.
19
<PAGE>
As additional consideration for the loans evidenced hereby, the Company
shall issue promptly after the date hereof 28,680 shares of its Common Stock in
Lender's name. Such issued shares shall be held in escrow by the Secretary of
the Company and shall be promptly delivered to the Lender on or about February
24, 1995, subject only to satisfaction of the Second Tranche February 24
Delivery Obligation. If the Second Tranche February 24 Delivery Obligation is
not satisfied (other than as a result of an Event of Default by the Debtor
hereunder), such shares shall be canceled and deemed null and void by the
Company. Such shares shall be entitled to the same, or substantially
equivalent, registration rights as those granted to the purchasers of Equity
Securities in the Private Placement (as such terms are defined below).
The Company is contemplating a Private Placement as described in Article 8B
of that certain Stock Purchase Agreement (the "Purchase Agreement") dated as of
June 21, 1994 among the Company (then named "DDI Pharmaceuticals, Inc."),
Bioxytech S.A. ("Bioxytech"), the Lender and certain other stockholders of
Bioxytech, and that certain letter from the Lender to the Company dated
September 7, 1994 (the "Firm Commitment Letter"). (All capitalized terms not
defined herein shall have the meanings as set forth in the Purchase Agreement or
the Firm Commitment Letter.) In consideration for the Lender making the loan
evidenced by this Note and provided that the Second Tranche February 24 Delivery
Obligation is satisfied, at the closing of a Private Placement of Equity
Securities by the Company, the Company shall issue a warrant entitling the
Lender to purchase at any time up to and through December 31, 1997, such number
of shares of Equity Securities equal to (x) seven percent (7%) of the principal
amount of this Note, divided by (y) the price per share paid by the investors in
the Private Placement for Equity Securities. The exercise price of such warrant
shall be the same as applicable to other warrants issued in the Private
Placement; provided, however, if no such warrants are issued in the Private
Placement, the exercise price shall be One Hundred Twenty Percent (120%) of the
price per share paid by purchasers of Equity Securities in the Private
Placement.
At the option of the Lender, the Lender shall be entitled to apply all
principal and interest owed by the Company hereunder to the Lenders' purchase of
Equity Securities in the Private Placement. In the event the Lender exercises
the option set forth in the immediately preceding sentence, this Note shall be
canceled and the Company's obligations hereunder shall be deemed satisfied at
the closing of the Private Placement.
All of the provisions hereof shall be binding upon and inure to the benefit
of the Company and Lender and their respective successors and permitted assigns,
except as otherwise provided. This Note may not be assigned by Lender without
the consent of the Company.
This Note shall be governed by the laws of the State of Oregon. The
parties hereto agree that any dispute, action or proceeding which arises under
or relates to this Note (except for an Event of Default pursuant to the terms of
subparagraphs (a) or (b) of the forth paragraph of this Note or a default
resulting from a breach of the terms of the Security Agreement), shall be
submitted to binding arbitration in accordance with the rules of the American
Arbitration Association with such arbitration to be held in New York City, New
York. The results, determination, finding, judgment or award rendered through
such arbitration, shall be final and binding on each of the Company and Lender
and not subject to final appeal.
OXIS INTERNATIONAL, INC.
(the "Company")
By: s/Ray R. Rogers
-------------------------
Title: Chairman
-------------------------
20
<PAGE>
SECURED PROMISSORY NOTE
$161,665.00 FEBRUARY 7, 1995
FOR VALUE RECEIVED, OXIS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Innolion S.A. ("Lender"), the sum of
EIGHTY THOUSAND EIGHT HUNDRED THIRTY-TWO AND 50/100 DOLLARS ($80,832.50) in
lawful money of the United States of America which shall be legal tender for the
payment of debts from time to time, together with interest on the principal
amount hereof remaining outstanding and unpaid, from the date hereof until
maturity, at the rate of eight percent (8%) per annum (computed on the actual
number of days elapsed over a year of 365 days). In addition, on February 24,
1995, the Lender will deliver $80,832.50 (the "Second Tranche") to the Company,
thereby increasing the principal balance of this Promissory Note to $161,665.00.
The issuance of the warrant and the delivery of the shares of the Company's
Common Stock to Lender described herein is dependent and expressly conditioned
upon (provided that an Event of Default (below defined) has not occurred) the
Lender delivering the Second Tranche on or before February 24, 1995 (the "Second
Tranche February 24 Delivery Obligation"). The failure of the Lender to
deliver, or to give irrevocable instructions for the wire transfer of, the
Second Tranche on or before February 24, 1995 will result in the Company having
no obligation to issue the warrant or deliver any shares of Common Stock
described below.
The principal balance evidenced by this Promissory Note ("Note"), and any
accrued but unpaid interest, shall be due and payable in full on February 5,
1996 (the "Due Date").
The Company shall have the privilege to prepay at any time, and from time
to time, all or any part of the principal amount of this Note and any accrued
interest thereon, without notice, penalty or fee.
The occurrence or existence of any one of the following events or
conditions shall constitute an "Event of Default" under this Note:
(a) any principal of or interest on this Note shall not have been paid
on February 5, 1996; or
(b) the Company makes an assignment for the benefit of creditors, or
applies to any tribunal for the appointment of a trustee or receiver of a
substantial part of the assets of the Company, or commences, or has
commenced against it, any proceedings relating to the Company under any
bankruptcy, reorganization, arrangement, readjustment or debts or other
insolvency law of any jurisdiction; or an order is entered appointing such
trustee or receiver, or adjudicating the Company bankrupt, or approving the
petition in any such proceedings; or
(c) a breach of any of the nonpayment terms of this Note by the
Company which is not cured by the Company within forty-five (45) days of
receipt of notice by the Company or a breach of the terms of the Security
Agreement which is not cured (where cure is possible and permitted) within
the periods provided in the Security Agreement.
This Note is secured by and is subject to that certain Security Agreement
dated as of the date hereof between the Company and the Security Agents on
behalf of themselves, the Lender and other lenders. The Lender acknowledges it
is aware of the terms of the Security Agreement and authorizes the Security
Agents to act thereunder and as the Security Agents may determine in their
reasonable discretion.
The Company expressly agrees that upon the happening or occurrence of an
Event of Default, Lender may at its option, declare the unpaid principal balance
of this Note and all interest then accrued hereon, at once due and payable; and
in such event if this Note is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through any judicial or
other proceeding whatsoever, then the Company agrees and promises to pay
reasonable attorneys' fees and expenses.
21
<PAGE>
As additional consideration for the loans evidenced hereby, the Company
shall issue promptly after the date hereof 19,685 shares of its Common Stock in
Lender's name. Such issued shares shall be held in escrow by the Secretary of
the Company and shall be promptly delivered to the Lender on or about February
24, 1995, subject only to satisfaction of the Second Tranche February 24
Delivery Obligation. If the Second Tranche February 24 Delivery Obligation is
not satisfied (other than as a result of an Event of Default by the Debtor
hereunder), such shares shall be canceled and deemed null and void by the
Company. Such shares shall be entitled to the same, or substantially
equivalent, registration rights as those granted to the purchasers of Equity
Securities in the Private Placement (as such terms are defined below).
The Company is contemplating a Private Placement as described in Article 8B
of that certain Stock Purchase Agreement (the "Purchase Agreement") dated as of
June 21, 1994 among the Company (then named "DDI Pharmaceuticals, Inc."),
Bioxytech S.A. ("Bioxytech"), the Lender and certain other stockholders of
Bioxytech, and that certain letter from the Lender to the Company dated
September 7, 1994 (the "Firm Commitment Letter"). (All capitalized terms not
defined herein shall have the meanings as set forth in the Purchase Agreement or
the Firm Commitment Letter.) In consideration for the Lender making the loan
evidenced by this Note and provided that the Second Tranche February 24 Delivery
Obligation is satisfied, at the closing of a Private Placement of Equity
Securities by the Company, the Company shall issue a warrant entitling the
Lender to purchase at any time up to and through December 31, 1997, such number
of shares of Equity Securities equal to (x) seven percent (7%) of the principal
amount of this Note, divided by (y) the price per share paid by the investors in
the Private Placement for Equity Securities. The exercise price of such warrant
shall be the same as applicable to other warrants issued in the Private
Placement; provided, however, if no such warrants are issued in the Private
Placement, the exercise price shall be One Hundred Twenty Percent (120%) of the
price per share paid by purchasers of Equity Securities in the Private
Placement.
At the option of the Lender, the Lender shall be entitled to apply all
principal and interest owed by the Company hereunder to the Lenders' purchase of
Equity Securities in the Private Placement. In the event the Lender exercises
the option set forth in the immediately preceding sentence, this Note shall be
canceled and the Company's obligations hereunder shall be deemed satisfied at
the closing of the Private Placement.
All of the provisions hereof shall be binding upon and inure to the benefit
of the Company and Lender and their respective successors and permitted assigns,
except as otherwise provided. This Note may not be assigned by Lender without
the consent of the Company.
This Note shall be governed by the laws of the State of Oregon. The
parties hereto agree that any dispute, action or proceeding which arises under
or relates to this Note (except for an Event of Default pursuant to the terms of
subparagraphs (a) or (b) of the forth paragraph of this Note or a default
resulting from a breach of the terms of the Security Agreement), shall be
submitted to binding arbitration in accordance with the rules of the American
Arbitration Association with such arbitration to be held in New York City, New
York. The results, determination, finding, judgment or award rendered through
such arbitration, shall be final and binding on each of the Company and Lender
and not subject to final appeal.
OXIS INTERNATIONAL, INC.
(the "Company")
By: s/Ray R. Rogers
------------------
Title: Chairman
-------------------
22
<PAGE>
SECURED PROMISSORY NOTE
$111,112.00 FEBRUARY 7, 1995
FOR VALUE RECEIVED, OXIS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Sofinnova Capital F.C.P.R.
("Lender"), the sum of FIFTY FIVE THOUSAND FIVE HUNDRED FIFTY-SIX DOLLARS
($55,556.00) in lawful money of the United States of America which shall be
legal tender for the payment of debts from time to time, together with interest
on the principal amount hereof remaining outstanding and unpaid, from the date
hereof until maturity, at the rate of eight percent (8%) per annum (computed on
the actual number of days elapsed over a year of 365 days). In addition, on
February 24, 1995, the Lender will deliver $55,556.00 (the "Second Tranche") to
the Company, thereby increasing the principal balance of this Promissory Note to
$111,112.00. The issuance of the warrant and the delivery of the shares of the
Company's Common Stock to Lender described herein is dependent and expressly
conditioned upon (provided that an Event of Default (below defined) has not
occurred) the Lender delivering the Second Tranche on or before February 24,
1995 (the "Second Tranche February 24 Delivery Obligation"). The failure of the
Lender to deliver, or to give irrevocable instructions for the wire transfer of,
the Second Tranche on or before February 24, 1995 will result in the Company
having no obligation to issue the warrant or deliver any shares of Common Stock
described below.
The principal balance evidenced by this Promissory Note ("Note"), and any
accrued but unpaid interest, shall be due and payable in full on February 5,
1996 (the "Due Date").
The Company shall have the privilege to prepay at any time, and from time
to time, all or any part of the principal amount of this Note and any accrued
interest thereon, without notice, penalty or fee.
The occurrence or existence of any one of the following events or
conditions shall constitute an "Event of Default" under this Note:
(a) any principal of or interest on this Note shall not have been paid
on February 5, 1996; or
(b) the Company makes an assignment for the benefit of creditors, or
applies to any tribunal for the appointment of a trustee or receiver of a
substantial part of the assets of the Company, or commences, or has
commenced against it, any proceedings relating to the Company under any
bankruptcy, reorganization, arrangement, readjustment or debts or other
insolvency law of any jurisdiction; or an order is entered appointing such
trustee or receiver, or adjudicating the Company bankrupt, or approving the
petition in any such proceedings; or
(c) a breach of any of the nonpayment terms of this Note by the
Company which is not cured by the Company within forty-five (45) days of
receipt of notice by the Company or a breach of the terms of the Security
Agreement which is not cured (where cure is possible and permitted) within
the periods provided in the Security Agreement.
This Note is secured by and is subject to that certain Security Agreement
dated as of the date hereof between the Company and the Security Agents on
behalf of themselves, the Lender and other lenders. The Lender acknowledges it
is aware of the terms of the Security Agreement and authorizes the Security
Agents to act thereunder and as the Security Agents may determine in their
reasonable discretion.
The Company expressly agrees that upon the happening or occurrence of an
Event of Default, Lender may at its option, declare the unpaid principal balance
of this Note and all interest then accrued hereon, at once due and payable; and
in such event if this Note is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through any judicial or
other proceeding whatsoever, then the Company agrees and promises to pay
reasonable attorneys' fees and expenses.
23
<PAGE>
As additional consideration for the loans evidenced hereby, the Company
shall issue promptly after the date hereof 13,530 shares of its Common Stock in
Lender's name. Such issued shares shall be held in escrow by the Secretary of
the Company and shall be promptly delivered to the Lender on or about February
24, 1995, subject only to satisfaction of the Second Tranche February 24
Delivery Obligation. If the Second Tranche February 24 Delivery Obligation is
not satisfied (other than as a result of an Event of Default by the Debtor
hereunder), such shares shall be canceled and deemed null and void by the
Company. Such shares shall be entitled to the same, or substantially
equivalent, registration rights as those granted to the purchasers of Equity
Securities in the Private Placement (as such terms are defined below).
The Company is contemplating a Private Placement as described in Article 8B
of that certain Stock Purchase Agreement (the "Purchase Agreement") dated as of
June 21, 1994 among the Company (then named "DDI Pharmaceuticals, Inc."),
Bioxytech S.A. ("Bioxytech"), the Lender and certain other stockholders of
Bioxytech, and that certain letter from the Lender to the Company dated
September 7, 1994 (the "Firm Commitment Letter"). (All capitalized terms not
defined herein shall have the meanings as set forth in the Purchase Agreement or
the Firm Commitment Letter.) In consideration for the Lender making the loan
evidenced by this Note and provided that the Second Tranche February 24 Delivery
Obligation is satisfied, at the closing of a Private Placement of Equity
Securities by the Company, the Company shall issue a warrant entitling the
Lender to purchase at any time up to and through December 31, 1997, such number
of shares of Equity Securities equal to (x) seven percent (7%) of the principal
amount of this Note, divided by (y) the price per share paid by the investors in
the Private Placement for Equity Securities. The exercise price of such warrant
shall be the same as applicable to other warrants issued in the Private
Placement; provided, however, if no such warrants are issued in the Private
Placement, the exercise price shall be One Hundred Twenty Percent (120%) of the
price per share paid by purchasers of Equity Securities in the Private
Placement.
At the option of the Lender, the Lender shall be entitled to apply all
principal and interest owed by the Company hereunder to the Lenders' purchase of
Equity Securities in the Private Placement. In the event the Lender exercises
the option set forth in the immediately preceding sentence, this Note shall be
canceled and the Company's obligations hereunder shall be deemed satisfied at
the closing of the Private Placement.
All of the provisions hereof shall be binding upon and inure to the benefit
of the Company and Lender and their respective successors and permitted assigns,
except as otherwise provided. This Note may not be assigned by Lender without
the consent of the Company.
This Note shall be governed by the laws of the State of Oregon. The
parties hereto agree that any dispute, action or proceeding which arises under
or relates to this Note (except for an Event of Default pursuant to the terms of
subparagraphs (a) or (b) of the forth paragraph of this Note or a default
resulting from a breach of the terms of the Security Agreement), shall be
submitted to binding arbitration in accordance with the rules of the American
Arbitration Association with such arbitration to be held in New York City, New
York. The results, determination, finding, judgment or award rendered through
such arbitration, shall be final and binding on each of the Company and Lender
and not subject to final appeal.
OXIS INTERNATIONAL, INC.
(the "Company")
By: s/Ray R. Rogers
--------------------
Title: Chairman
--------------------
24
<PAGE>
SECURED PROMISSORY NOTE
$74,074.00 FEBRUARY 7, 1995
FOR VALUE RECEIVED, OXIS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Sofinnova S.A. ("Lender"), the sum
of THIRTY SEVEN THOUSAND AND THIRTY-SEVEN DOLLARS ($37,037.00) in lawful money
of the United States of America which shall be legal tender for the payment of
debts from time to time, together with interest on the principal amount hereof
remaining outstanding and unpaid, from the date hereof until maturity, at the
rate of eight percent (8%) per annum (computed on the actual number of days
elapsed over a year of 365 days). In addition, on February 24, 1995, the Lender
will deliver $37,037.00 (the "Second Tranche") to the Company, thereby
increasing the principal balance of this Promissory Note to $74,074.00. The
issuance of the warrant and the delivery of the shares of the Company's Common
Stock to Lender described herein is dependent and expressly conditioned upon
(provided that an Event of Default (below defined) has not occurred) the Lender
delivering the Second Tranche on or before February 24, 1995 (the "Second
Tranche February 24 Delivery Obligation"). The failure of the Lender to
deliver, or to give irrevocable instructions for the wire transfer of, the
Second Tranche on or before February 24, 1995 will result in the Company having
no obligation to issue the warrant or deliver any shares of Common Stock
described below.
The principal balance evidenced by this Promissory Note ("Note"), and any
accrued but unpaid interest, shall be due and payable in full on February 5,
1996 (the "Due Date").
The Company shall have the privilege to prepay at any time, and from time
to time, all or any part of the principal amount of this Note and any accrued
interest thereon, without notice, penalty or fee.
The occurrence or existence of any one of the following events or
conditions shall constitute an "Event of Default" under this Note:
(a) any principal of or interest on this Note shall not have been paid
on February 5, 1996; or
(b) the Company makes an assignment for the benefit of creditors, or
applies to any tribunal for the appointment of a trustee or receiver of a
substantial part of the assets of the Company, or commences, or has
commenced against it, any proceedings relating to the Company under any
bankruptcy, reorganization, arrangement, readjustment or debts or other
insolvency law of any jurisdiction; or an order is entered appointing such
trustee or receiver, or adjudicating the Company bankrupt, or approving the
petition in any such proceedings; or
(c) a breach of any of the nonpayment terms of this Note by the
Company which is not cured by the Company within forty-five (45) days of
receipt of notice by the Company or a breach of the terms of the Security
Agreement which is not cured (where cure is possible and permitted) within
the periods provided in the Security Agreement.
This Note is secured by and is subject to that certain Security Agreement
dated as of the date hereof between the Company and the Security Agents on
behalf of themselves, the Lender and other lenders. The Lender acknowledges it
is aware of the terms of the Security Agreement and authorizes the Security
Agents to act thereunder and as the Security Agents may determine in their
reasonable discretion.
The Company expressly agrees that upon the happening or occurrence of an
Event of Default, Lender may at its option, declare the unpaid principal balance
of this Note and all interest then accrued hereon, at once due and payable; and
in such event if this Note is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through any judicial or
other proceeding whatsoever, then the Company agrees and promises to pay
reasonable attorneys' fees and expenses.
25
<PAGE>
As additional consideration for the loans evidenced hereby, the Company
shall issue promptly after the date hereof 9,020 shares of its Common Stock in
Lender's name. Such issued shares shall be held in escrow by the Secretary of
the Company and shall be promptly delivered to the Lender on or about February
24, 1995, subject only to satisfaction of the Second Tranche February 24
Delivery Obligation. If the Second Tranche February 24 Delivery Obligation is
not satisfied (other than as a result of an Event of Default by the Debtor
hereunder), such shares shall be canceled and deemed null and void by the
Company. Such shares shall be entitled to the same, or substantially
equivalent, registration rights as those granted to the purchasers of Equity
Securities in the Private Placement (as such terms are defined below).
The Company is contemplating a Private Placement as described in Article 8B
of that certain Stock Purchase Agreement (the "Purchase Agreement") dated as of
June 21, 1994 among the Company (then named "DDI Pharmaceuticals, Inc."),
Bioxytech S.A. ("Bioxytech"), the Lender and certain other stockholders of
Bioxytech, and that certain letter from the Lender to the Company dated
September 7, 1994 (the "Firm Commitment Letter"). (All capitalized terms not
defined herein shall have the meanings as set forth in the Purchase Agreement or
the Firm Commitment Letter.) In consideration for the Lender making the loan
evidenced by this Note and provided that the Second Tranche February 24 Delivery
Obligation is satisfied, at the closing of a Private Placement of Equity
Securities by the Company, the Company shall issue a warrant entitling the
Lender to purchase at any time up to and through December 31, 1997, such number
of shares of Equity Securities equal to (x) seven percent (7%) of the principal
amount of this Note, divided by (y) the price per share paid by the investors in
the Private Placement for Equity Securities. The exercise price of such warrant
shall be the same as applicable to other warrants issued in the Private
Placement; provided, however, if no such warrants are issued in the Private
Placement, the exercise price shall be One Hundred Twenty Percent (120%) of the
price per share paid by purchasers of Equity Securities in the Private
Placement.
At the option of the Lender, the Lender shall be entitled to apply all
principal and interest owed by the Company hereunder to the Lenders' purchase of
Equity Securities in the Private Placement. In the event the Lender exercises
the option set forth in the immediately preceding sentence, this Note shall be
canceled and the Company's obligations hereunder shall be deemed satisfied at
the closing of the Private Placement.
All of the provisions hereof shall be binding upon and inure to the benefit
of the Company and Lender and their respective successors and permitted assigns,
except as otherwise provided. This Note may not be assigned by Lender without
the consent of the Company.
This Note shall be governed by the laws of the State of Oregon. The
parties hereto agree that any dispute, action or proceeding which arises under
or relates to this Note (except for an Event of Default pursuant to the terms of
subparagraphs (a) or (b) of the forth paragraph of this Note or a default
resulting from a breach of the terms of the Security Agreement), shall be
submitted to binding arbitration in accordance with the rules of the American
Arbitration Association with such arbitration to be held in New York City, New
York. The results, determination, finding, judgment or award rendered through
such arbitration, shall be final and binding on each of the Company and Lender
and not subject to final appeal.
OXIS INTERNATIONAL, INC.
(the "Company")
By: s/Ray R. Rogers
-------------------
Title: Chairman
-------------------
26
<PAGE>
SECURED PROMISSORY NOTE
$183,773.00 FEBRUARY 7, 1995
FOR VALUE RECEIVED, OXIS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), promises to pay to the order of Finovelec S.A. ("Lender"), the sum
of NINETY ONE THOUSAND EIGHT HUNDRED EIGHTY-SIX AND 50/100 DOLLARS ($91,886.50)
in lawful money of the United States of America which shall be legal tender for
the payment of debts from time to time, together with interest on the principal
amount hereof remaining outstanding and unpaid, from the date hereof until
maturity, at the rate of eight percent (8%) per annum (computed on the actual
number of days elapsed over a year of 365 days). In addition, on February 24,
1995, the Lender will deliver $91,886.50 (the "Second Tranche") to the Company,
thereby increasing the principal balance of this Promissory Note to $183,773.00.
The issuance of the warrant and the delivery of the shares of the Company's
Common Stock to Lender described herein is dependent and expressly conditioned
upon (provided that an Event of Default (below defined) has not occurred) the
Lender delivering the Second Tranche on or before February 24, 1995 (the "Second
Tranche February 24 Delivery Obligation"). The failure of the Lender to
deliver, or to give irrevocable instructions for the wire transfer of, the
Second Tranche on or before February 24, 1995 will result in the Company having
no obligation to issue the warrant or deliver any shares of Common Stock
described below.
The principal balance evidenced by this Promissory Note ("Note"), and any
accrued but unpaid interest, shall be due and payable in full on February 5,
1996 (the "Due Date").
The Company shall have the privilege to prepay at any time, and from time
to time, all or any part of the principal amount of this Note and any accrued
interest thereon, without notice, penalty or fee.
The occurrence or existence of any one of the following events or
conditions shall constitute an "Event of Default" under this Note:
(a) any principal of or interest on this Note shall not have been paid
on February 5, 1996; or
(b) the Company makes an assignment for the benefit of creditors, or
applies to any tribunal for the appointment of a trustee or receiver of a
substantial part of the assets of the Company, or commences, or has
commenced against it, any proceedings relating to the Company under any
bankruptcy, reorganization, arrangement, readjustment or debts or other
insolvency law of any jurisdiction; or an order is entered appointing such
trustee or receiver, or adjudicating the Company bankrupt, or approving the
petition in any such proceedings; or
(c) a breach of any of the nonpayment terms of this Note by the
Company which is not cured by the Company within forty-five (45) days of
receipt of notice by the Company or a breach of the terms of the Security
Agreement which is not cured (where cure is possible and permitted) within
the periods provided in the Security Agreement.
This Note is secured by and is subject to that certain Security Agreement
dated as of the date hereof between the Company and the Security Agents on
behalf of themselves, the Lender and other lenders. The Lender acknowledges it
is aware of the terms of the Security Agreement and authorizes the Security
Agents to act thereunder and as the Security Agents may determine in their
reasonable discretion.
The Company expressly agrees that upon the happening or occurrence of an
Event of Default, Lender may at its option, declare the unpaid principal balance
of this Note and all interest then accrued hereon, at once due and payable; and
in such event if this Note is placed in the hands of an attorney for collection,
or suit is brought on same, or the same is collected through any judicial or
other proceeding whatsoever, then the Company agrees and promises to pay
reasonable attorneys' fees and expenses.
27
<PAGE>
As additional consideration for the loans evidenced hereby, the Company
shall issue promptly after the date hereof 22,385 shares of its Common Stock in
Lender's name. Such issued shares shall be held in escrow by the Secretary of
the Company and shall be promptly delivered to the Lender on or about February
24, 1995, subject only to satisfaction of the Second Tranche February 24
Delivery Obligation. If the Second Tranche February 24 Delivery Obligation is
not satisfied (other than as a result of an Event of Default by the Debtor
hereunder), such shares shall be canceled and deemed null and void by the
Company. Such shares shall be entitled to the same, or substantially
equivalent, registration rights as those granted to the purchasers of Equity
Securities in the Private Placement (as such terms are defined below).
The Company is contemplating a Private Placement as described in Article 8B
of that certain Stock Purchase Agreement (the "Purchase Agreement") dated as of
June 21, 1994 among the Company (then named "DDI Pharmaceuticals, Inc."),
Bioxytech S.A. ("Bioxytech"), the Lender and certain other stockholders of
Bioxytech, and that certain letter from the Lender to the Company dated
September 7, 1994 (the "Firm Commitment Letter"). (All capitalized terms not
defined herein shall have the meanings as set forth in the Purchase Agreement or
the Firm Commitment Letter.) In consideration for the Lender making the loan
evidenced by this Note and provided that the Second Tranche February 24 Delivery
Obligation is satisfied, at the closing of a Private Placement of Equity
Securities by the Company, the Company shall issue a warrant entitling the
Lender to purchase at any time up to and through December 31, 1997, such number
of shares of Equity Securities equal to (x) seven percent (7%) of the principal
amount of this Note, divided by (y) the price per share paid by the investors in
the Private Placement for Equity Securities. The exercise price of such warrant
shall be the same as applicable to other warrants issued in the Private
Placement; provided, however, if no such warrants are issued in the Private
Placement, the exercise price shall be One Hundred Twenty Percent (120%) of the
price per share paid by purchasers of Equity Securities in the Private
Placement.
At the option of the Lender, the Lender shall be entitled to apply all
principal and interest owed by the Company hereunder to the Lenders' purchase of
Equity Securities in the Private Placement. In the event the Lender exercises
the option set forth in the immediately preceding sentence, this Note shall be
canceled and the Company's obligations hereunder shall be deemed satisfied at
the closing of the Private Placement.
All of the provisions hereof shall be binding upon and inure to the benefit
of the Company and Lender and their respective successors and permitted assigns,
except as otherwise provided. This Note may not be assigned by Lender without
the consent of the Company.
This Note shall be governed by the laws of the State of Oregon. The
parties hereto agree that any dispute, action or proceeding which arises under
or relates to this Note (except for an Event of Default pursuant to the terms of
subparagraphs (a) or (b) of the forth paragraph of this Note or a default
resulting from a breach of the terms of the Security Agreement), shall be
submitted to binding arbitration in accordance with the rules of the American
Arbitration Association with such arbitration to be held in New York City, New
York. The results, determination, finding, judgment or award rendered through
such arbitration, shall be final and binding on each of the Company and Lender
and not subject to final appeal.
OXIS INTERNATIONAL, INC.
(the "Company")
By: s/Ray R. Rogers
--------------------
Title: Chairman
--------------------
28
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<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> MAR-31-1995
<CASH> 724,000
<SECURITIES> 0
<RECEIVABLES> 1,002,000
<ALLOWANCES> 0
<INVENTORY> 653,000
<CURRENT-ASSETS> 2,890,000
<PP&E> 1,286,000
<DEPRECIATION> 0
<TOTAL-ASSETS> 11,087,000
<CURRENT-LIABILITIES> 4,372,000
<BONDS> 0
<COMMON> 4,708,000
0
0
<OTHER-SE> 1,664,000
<TOTAL-LIABILITY-AND-EQUITY> 11,087,000
<SALES> 2,075,000
<TOTAL-REVENUES> 2,126,000
<CGS> 1,177,000
<TOTAL-COSTS> 1,177,000
<OTHER-EXPENSES> 1,029,000
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 38,000
<INCOME-PRETAX> (757,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (757,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (757,000)
<EPS-PRIMARY> (.08)
<EPS-DILUTED> 0
</TABLE>
