<PAGE>
As filed with the Securities and Exchange Commission on November 20, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
OXIS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-1620407
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
_________________
6040 N. CUTTER CIRCLE, SUITE 317
PORTLAND, OREGON 97217-3935
(503) 283-3911
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
______________________
1994 EMPLOYEE STOCK OPTION AGREEMENTS
1994 STOCK INCENTIVE PLAN
______________________
(Full Title of the Plan)
RAY R. ROGERS
CHAIRMAN OF THE BOARD
OXIS INTERNATIONAL, INC.
6040 N. CUTTER CIRCLE, SUITE 317
PORTLAND, OREGON 97217-3935
(503) 283-3911
(Name, address, including zip code and telephone number, including area code of
agent for service)
_____________________
COPIES TO:
RICHARD SCUDELLARI, ESQ.
JACKSON, TUFTS, COLE & BLACK
60 SOUTH MARKET STREET
SAN JOSE, CALIFORNIA 95113
(408) 998-1952
______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
==============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock par value $.50 1,285,781 shares $1.46875 $1,888,490.84 $651.20
per share
==============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 based on the average of the high and
low prices of the Common Stock reported in the Nasdaq National Market
System on November 16, 1995.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual
Information.*
__________________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act') and the Note to Part I of Form S-8.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed by
OXIS International, Inc. (the "Company" or the "Registrant") with the
Securities and Exchange Commission (the "Commission"):
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, as amended, including all material incorporated
by reference therein.
2. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1995.
3. The Company's Report on Form 10-C as filed on May 24, 1995.
4. The Company's Current Report on Form 8-K as filed on May 24, 1995.
5. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1995.
6. The Company's Current Report on Form 8-K as filed on August 3,
1995, as amended by Form 8-K/A filed September 29, 1995.
7. The Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1995.
8. The description of the Registrant's Common Stock contained in the
Company's Prospectus dated June 18, 1969 (File No. 0361150) filed
pursuant to Section 12 of the Exchange Act on June 23, 1969.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents. Any statement
contained herein or in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or amended, to constitute a part of this Registration Statement.
II-1
<PAGE>
ITEM 4. Description of Securities.
-------------------------
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company has the power, pursuant to Section 102(7) of the
Delaware General Corporation Law, to limit the liability of directors of
the Company for certain breaches of fiduciary duty and, pursuant to
Section 145 of the Delaware General Corporation Law, to indemnify its
officers and directors and other persons for certain acts.
The Company's Restated Certificate of Incorporation includes
the following provisions:
"A director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law or (iv)
for any transaction from which the director derived an improper
personal benefit. If the Delaware General Corporation Law is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of
a director of the Company shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as
so amended. Any repeal or modification of this Article by the
stockholders of the Company shall not adversely affect any right or
protection of a director of the Company existing at the time of such
repeal or modification."
"The Company shall indemnify any and all persons whom it has the
power to indemnify pursuant to the General Corporation Law of
Delaware against any and all expenses, judgments, fines, amounts
paid in settlement, and any other liabilities to the fullest extent
permitted by such law and may at the discretion of the Board of
Directors, purchase and maintain insurance, at its expense, to
protect itself and such persons against any expense, judgment, fine,
amount paid in settlement or other liability, whether or not the
Company would have the power to so indemnify such person under the
General Corporation Law of Delaware."
Pursuant to Section 145 of the Delaware Law, a corporation generally
has the power to indemnify its present and former directors, officers,
employees and agents against expenses incurred by them in connection with
any suit to which they are, or are threatened to be made, a party by
reason of their serving in such positions so long as they acted in good
faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of a corporation, and with respect to any criminal
action, they had no reasonable cause to believe their conduct was
unlawful. The Company believes that these provisions are necessary to
attract and retain qualified
II-2
<PAGE>
persons as directors and officers. These provisions do not eliminate
liability for breach of the director's duty of loyalty to the Company or
its stockholders, for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, for any transaction
from which the director derived an improper personal benefit or for any
willful or negligent payment of any unlawful dividend or any unlawful
stock purchase agreement or redemption.
Section 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's board of directors to grant
indemnification to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the
Securities Act.
Article III of the Company's Bylaws provides that the Company, by
action of the Board of Directors, may, to the fullest extent permitted by
the General Corporation Law of Delaware, indemnify any and all persons
who it shall have power to indemnify against any and all of the expenses,
liabilities or other matters.
The Company has purchased and maintains an insurance policy covering
the officers and directors of the Company with respect to certain
liabilities arising under the Securities Act or otherwise.
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
--------
4.1 OXIS International,. Inc. 1994 Stock Incentive Plan, as
amended, including Form of Stock Option Agreement.
4.2 Forms of 1994 Employee Stock Option Agreements.
5.1 Opinion of Jackson, Tufts, Cole & Black, as to legality of
securities being registered hereunder.
24.1 Consent of Independent Auditors.
24.2 Consent of Counsel (contained in Exhibit 5.1).
25.1 Power of Attorney (See page II-5).
ITEM 9. Undertakings.
------------
(a) 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
II-3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
II-4
<PAGE>
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 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 PORTLAND, STATE OF
OREGON, ON THE 20TH DAY OF NOVEMBER, 1995.
OXIS INTERNATIONAL, INC.
By: /s/ Anna D. Barker
-------------------------------------
Anna D. Barker
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ray R. Rogers and Anna D. Barker,
or either of them, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and full capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement on Form S-8, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full 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 attorneys-in-fact and
agents, or any of them, or their 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 ON FORM S-8 HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------- ----------------------------- -----------------
<S> <C> <C>
/s/ Anna D. Barker Director; President and November 20, 1995
- ----------------------------- Chief Executive Officer
Anna D. Barker (Principal Executive Officer)
/s/ Jon S. Pitcher Chief Financial Officer and November 20, 1995
- ----------------------------- Secretary
Jon S. Pitcher (Principal Financial and
Accounting Officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------- ----------------------------- -----------------
<S> <C> <C>
/s/ Ray R. Rogers Director; Chairman of the November 20, 1995
- ----------------------------- Board
Ray R. Rogers
/s/ Gerald D Mayer Director November 20, 1995
- -----------------------------
Gerald D. Mayer
/s/ Peter E. Taussig Director November 20, 1995
- -----------------------------
Peter E. Taussig
/s/ Lawrance A. Brown, Jr. Director November 20, 1995
- -----------------------------
Lawrance A. Brown, Jr.
/s/ David Needham Director November 20, 1995
- -----------------------------
David Needham
/s/ A.R. Sitaraman Director November 20, 1995
- -----------------------------
A.R. Sitaraman
/s/ Timothy G. Biro Director November 20, 1995
- -----------------------------
Timothy G. Biro
</TABLE>
II-6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
Registration Statement on Form S-8
OXIS INTERNATIONAL, INC.
November 20, 1995
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
-------------
<S> <C>
4.1 OXIS International, Inc. 1994 Stock Incentive Plan,
as amended, and Form of Stock Option Agreement
4.2 Forms of 1994 Employee Stock Option Agreements
5.1 Opinion of Jackson, Tufts, Cole & Black, as to legality
of securities being registered
24.1 Consent of Independent Auditors
24.2 Consent of Counsel (contained in Exhibit 5.1)
25.1 Power of Attorney (See page II-5)
</TABLE>
<PAGE>
Exhibit 4.1
-----------
OXIS INTERNATIONAL, INC.
1994 STOCK INCENTIVE PLAN
1. PURPOSE. This 1994 Stock Incentive Plan ("Plan")/1/ is established as a
-------
compensatory plan to attract, retain and provide equity incentives to selected
persons to promote the financial success of OXIS International, Inc., a Delaware
corporation (the "Company"). Capitalized terms not otherwise defined herein are
defined in Section 21 of this Plan.
2. TYPES OF AWARDS. The Committee (as defined in Section 16) may, from time
---------------
to time, take the following actions under this Plan: (a) grant stock options
("Options") to acquire shares of the common stock, $0.50 par value, of the
Company ("Common Stock") as provided in Sections 5 and 6; (b) award stock
bonuses of Common Stock as provided in Section 8; (c) sell shares of the Common
Stock as provided in Section 9; or (d) grant stock appreciation rights ("SARs")
as provided in Section 10 (all of the foregoing shall be collectively referred
to as the "Awards"). Options granted under this Plan may be either (a)
incentive stock options ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or (b) nonqualified
stock options ("NQSOs"), as designated at the time of grant. The shares of
stock that may be awarded, sold, purchased or acquired upon exercise of Options
or SARs granted under this Plan (the "Shares") are shares of Common Stock.
3. NUMBER OF SHARES. The aggregate number of Shares that may be issued
----------------
under this Plan is 1,200,000 Shares/2/, subject to adjustment as provided in
this Plan. If any Option or SAR expires, is terminated or is cancelled without
being exercised in whole or in part, unissued Shares from such Option or SAR
shall again be available under this Plan. Cash payments of SARs shall not
reduce the number of Shares reserved for issuance under this Plan. If Shares
sold or awarded as a bonus under the Plan are forfeited to the Company, the
number of shares forfeited shall again be available under the Plan. At all
times during the term of this Plan, the Company shall reserve and keep available
such number of Shares as shall be required to satisfy the requirements of
outstanding Options or SARs under this Plan.
4. ELIGIBILITY.
-----------
(a) General Rules of Eligibility. Awards may be granted to employees,
----------------------------
officers, directors, consultants, independent contractors and advisors (provided
such consultants, independent contractors and advisors render bona fide services
not in connection with the offer and sale of securities in a capital-raising
transaction) of the Company or any Parent, Subsidiary or Affiliate of the
Company. ISOs may be granted only to employees (including officers and
- --------------
/1/ Approved by the Company's Board of Directors on June 15, 1994. Approved by
the Company's Stockholders on September 7, 1994.
/2/ Increased from 400,000 shares to 1,200,000 shares effective August 15,
1995.
-1-
<PAGE>
directors who are also employees) of the Company or a Parent or Subsidiary of
the Company. Awards may be granted to directors of the Company who are not
employees of either the Company or a Subsidiary (a "Non-Employee Director") only
pursuant to Section 6 of this Plan and in no event shall SARs or stock bonuses
be awarded or Shares sold to Non-Employee Directors under this Plan. The
Committee in its sole discretion shall select the recipients of Awards
("Participants"), subject to the restrictions set forth in the immediately
preceding sentence. A Participant may be granted more than one Award under this
Plan.
(b) Company Assumption of Awards. The Company may also, from time to
----------------------------
time, assume outstanding awards granted by another company, whether in
connection with an acquisition of such other company or otherwise, by either (i)
granting an Award under this Plan in replacement of the award assumed by the
Company, or (ii) treating the assumed award as if it had been granted under this
Plan if the terms of such assumed award could be applied to an award granted
under this Plan. Such assumption shall be permissible if the holder of the
assumed award would have been eligible to be granted an award hereunder if the
other company had applied the rules of this Plan to such grant.
5. TERMS AND CONDITIONS OF OPTIONS. The Committee shall determine whether
-------------------------------
each Option (other than Options granted pursuant to Section 6 of this Plan) is
to be an ISO or an NQSO, the number of Shares subject to the Option, the
exercise price of the Option, the period during which the Option may be
exercised, and all other terms and conditions of the Option, subject to the
following:
(a) Form of Option Grant. Each Option granted under this Plan shall be
---------------------
evidenced by a written Stock Option Grant (the "Grant") in substantially the
form attached hereto as Exhibit A or such other form as shall be approved by the
Committee.
(b) Date of Grant. The date of grant of an Option shall be the date on
-------------
which the Committee makes the determination to grant such Option unless
otherwise specified by the Committee and subject to applicable provisions of the
Code. The Grant representing the Option will be delivered to the Optionee with a
copy of this Plan within a reasonable time after the date of grant; provided,
however, that with respect to Options other than Options granted pursuant to
Section 6 of this Plan if, for any reason, including a unilateral decision by
the Company not to execute an agreement evidencing such option, a written Grant
is not executed within sixty (60) days after the date of grant, such option
shall be deemed null and void. No Option shall be exercisable until such Grant
is executed by the Company and the person receiving the Option (the "Optionee").
(c) Exercise Price. The exercise price of an NQSO shall be not less
--------------
than eighty-five percent (85%) of the Fair Market Value of the Shares on the
date the Option is granted. The exercise price of an ISO shall be not less than
one hundred percent (100%) of the Fair Market Value of the Shares on the date
the Option is granted. The exercise price of any ISO granted to a person owning
more than ten percent (10%) of the total combined voting power of all classes of
stock of the Company or any Parent or Subsidiary of the Company ("Ten Percent
Stockholders") shall not be less than one hundred and ten percent (110%) of the
Fair Market Value of the Shares on the date the Option is granted.
-2-
<PAGE>
(d) Exercise Period. Options shall be exercisable within the times or
---------------
upon the events determined by the Committee as set forth in the Grant; provided,
however that no Option shall be exercisable after the expiration of ten (10)
years from the date the Option is granted, and provided further that no ISO
granted to a Ten Percent Stockholder shall be exercisable after the expiration
of five (5) years from the date the Option is granted.
(e) Limitations on Options. The aggregate Fair Market Value
----------------------
(determined as of the time an Option is granted) of stock with respect to which
ISOs are exercisable for the first time by an Optionee during any calendar year
(under this Plan or under any other incentive stock option plan of the Company
or any Parent or Subsidiary of the Company) shall not exceed one hundred
thousand dollars ($100,000). To the extent that the Fair Market Value of stock
with respect to which ISOs are exercisable for the first time by an Optionee
during any calendar year exceeds $100,000, such Options shall be treated as
NQSOs. The foregoing shall be applied by taking Options into account in the
order in which they were granted. In the event that the Code or the regulations
promulgated thereunder are amended after the effective date of this Plan to
provide for a different limit on the Fair Market Value of Shares permitted to be
subject to ISOs, such different limit shall be incorporated herein and shall
apply to any Options granted after the effective date of such amendment.
(f) Options Non-Transferable. Options granted under this Plan, and any
------------------------
interest therein, shall not be transferable or assignable by the Optionee, and
may not be made subject to execution, attachment or similar process, otherwise
than by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionee only by the Optionee or any permitted
transferee.
(g) Assumed Options. In the event the Company assumes an option
---------------
granted by another company in accordance with Section 4(b) above, the terms and
conditions of such Option shall remain unchanged (except the exercise price and
the number and nature of shares issuable upon exercise, which will be adjusted
appropriately pursuant to Section 424 of the Code and the Treasury Regulations
applicable thereto). In the event the Company elects to grant a new Option
rather than assuming an existing option (as specified in Section 4), such new
Option need not be granted at Fair Market Value on the date of grant and may
instead be granted with a similarly adjusted exercise price.
(h) Restrictions on Shares. At the discretion of the Committee, the
----------------------
Company may reserve to itself and/or its assignee(s) in the Grant a right of
first refusal to purchase all Shares that an Optionee (or a subsequent
transferee) may propose to transfer to a third party. The provisions of this
Section 5(h) shall not apply to any Option granted pursuant to Section 6 of this
Plan.
(i) Modification, Extension and Renewal of Options. The Committee
----------------------------------------------
shall have the power to modify, extend or renew outstanding Options and to
authorize the grant of new Options in substitution therefor, provided that any
such action may not, without the written consent of the Optionee, impair any
rights under any Option previously granted. Any outstanding ISO that is
modified, extended, renewed or otherwise altered shall be treated in accordance
with Section 424(h) of the Code. The Committee shall have the power to reduce
the exercise price of
-3-
<PAGE>
outstanding Options; provided, however, that the exercise price per share may
not be reduced below the minimum exercise price that would be permitted under
Section 5(c) of this Plan for Options granted on the date the action is taken to
reduce the exercise price. Notwithstanding any other provision of this Plan, the
Committee may accelerate the earliest date or dates on which outstanding Options
(or any installments thereof) are exercisable. The provisions of this Section
5(i) shall not apply to Options granted pursuant to Section 6 of this Plan.
6. DIRECTOR FORMULA OPTION GRANTS.
------------------------------
Non-Employee Directors of the Company shall receive Options in accordance
with the following terms:
(a) Formula Grant. On the first business day following approval of
-------------
this Plan by the Board of Directors of the Company (the "Board") (subject to the
approval of the Plan by the stockholders of the Company pursuant to Section 15
hereof), each Non-Employee Director shall receive a NQSO for 15,000 Shares, and
thereafter annually on the first business day following the 1995 annual meeting
of stockholders of the Company and the first business day following each annual
meeting thereafter shall receive a NQSO for 5,000 Shares. In the event any
additional Non-Employee Director is appointed by the Board or elected by the
stockholders, on the first business day following appointment by the Board or
election by the stockholders, each such Non-Employee Director shall receive a
NQSO for 15,000 Shares, and thereafter annually on the first business day
following the annual meeting of stockholders shall receive a NQSO for 5,000
Shares.
(b) Terms of Grant. Options granted pursuant to this Section 6 shall
--------------
be subject to the following terms:
(i) Exercise Price and Payment Terms. The exercise price for the
--------------------------------
Options granted pursuant to this Section 6 shall be equal to one hundred percent
(100%) of the Fair Market Value of the Shares on the date of the grant, payable
in cash or otherwise in accordance with the alternatives specified in clauses
(i), (ii), (iv), (v) and (vi) of Section 7(b) of this Plan.
(ii) Term. The term of the Options shall be ten (10) years from
----
the date the Option is granted.
(iii) Exercise Period. The Options shall be exercisable beginning
---------------
six (6) months after the date of the grant.
(iv) Other Terms. The Options granted pursuant to this Section 6 shall
-----------
be evidenced by a written Stock Option Grant in substantially the form of
Exhibit A or such other form of Stock Option Grant as is approved by the
Committee and the Options are otherwise subject to the limitations of Section
5(f) of this Plan.
(c) Amendments. Notwithstanding Section 18 of this Plan, the
----------
provisions of this Section 6 shall not be amended more frequently than permitted
for formula plans meeting the conditions of Rule 16b-3 as promulgated by the
Securities and Exchange Commission ("Rule 16b-3").
-4-
<PAGE>
7. EXERCISE OF OPTIONS.
-------------------
(a) Notices. Options may be exercised only by delivery to the Company
-------
of a written exercise agreement in a form approved by the Committee (which need
not be the same for each Optionee), stating the number of Shares being
purchased, the restrictions imposed on the Shares, if any, and such
representations and agreements regarding the Optionee's investment intent and
access to information, if any, as may be required by the Company to comply with
applicable securities laws, together with payment in full of the exercise price
for the number of Shares being purchased.
(b) Payment. Payment for the Shares may be made in cash (by check) or,
-------
where approved by the Committee in its sole discretion at the time of grant and
where permitted by law: (i) by cancellation of indebtedness of the Company to
the Optionee; (ii) by surrender of shares of Common Stock of the Company already
owned by the Optionee, having a Fair Market Value equal to the exercise price of
the Option; (iii) by waiver of compensation due or accrued to Optionee for
services rendered; (iv) provided that a public market for the Company's stock
exists, through a "same day sale" commitment from the Optionee and a broker-
dealer that is a member of the National Association of Securities Dealers, Inc.
(an "NASD Dealer") whereby the Optionee irrevocably elects to exercise the
Option and to sell a portion of the Shares so purchased to pay for the exercise
price and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the exercise price directly to the Company; (v) provided that
a public market for the Company's stock exists, through a "margin" commitment
from the Optionee and an NASD Dealer whereby the Optionee irrevocably elects to
exercise the Option and to pledge the Shares so purchased to the NASD Dealer in
a margin account as security for a loan from the NASD Dealer in the amount of
the exercise price, and whereby the NASD Dealer irrevocably commits upon receipt
of such Shares to forward the exercise price directly to the Company; or (vi) by
any combination of the foregoing. Payment of the exercise price for Options
granted pursuant to Section 6 shall be determined in accordance with Section 6.
(c) Withholding Taxes. Prior to issuance of the Shares upon exercise
-----------------
of an Option, the Optionee shall pay or make adequate provision for any federal
or state withholding obligations of the Company, if applicable. Where approved
by the Committee in its sole discretion, the Optionee may provide for payment of
withholding taxes upon exercise of the Option by requesting that the Company
retain Shares with a Fair Market Value equal to the minimum amount of taxes
required to be withheld. In such case, the Company shall issue the net number of
Shares to the Optionee by deducting the Shares retained from the Shares
exercised. The Fair Market Value of the Shares to be withheld shall be
determined on the date that the amount of tax to be withheld is to be determined
in accordance with Section 83 of the Code (the "Tax Date"). All elections by
Optionees to have Shares withheld for this purpose shall be made in writing in a
form acceptable to the Committee and shall be subject to the following
restrictions:
(i) the election must be made on or prior to the applicable Tax
Date;
(ii) once made, the election shall be irrevocable as to the
particular Shares as to which the election is made;
-5-
<PAGE>
(iii) all elections shall be subject to the consent or disapproval
of the Committee;
(iv) if the Optionee is an officer or director of the Company or
other person (in each case, an "Insider") whose transactions in the Company's
Common Stock are subject to Section 16(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") and if the Company is subject to Section
16(b) of the Exchange Act, the election must be made at least six (6) months
prior to the Tax Date and must otherwise comply with Rule 16b-3.
(d) Limitations on Exercise. Notwithstanding anything else to the
-----------------------
contrary in the Plan or any Grant, no Option may be exercisable later than the
expiration date of the Option.
8. STOCK BONUSES. The Committee may award Shares under the Plan as stock
-------------
bonuses. The certificates representing the Shares awarded shall bear any
legends required by the Committee. The Company may award Shares as a stock
bonus to a Participant for no consideration or for such minimum consideration as
may be required by applicable law in an amount and form as determined by the
Committee. The Company may also require any Participant receiving a stock bonus
to pay to the Company in cash upon demand amounts necessary to satisfy any
applicable federal, state or local tax withholding requirements. If such
Participant fails to pay the amount demanded, the Company or any Parent or
Subsidiary of the Company may withhold that amount from other amounts payable to
such Participant by the Company or the Parent or Subsidiary, including salary,
subject to applicable law. With the consent of the Committee and subject to
such requirements as may be imposed by the Committee (including the requirements
of Rule 16b-3, if applicable), a Participant may deliver Shares to the Company
to satisfy the withholding obligation.
9. STOCK SALES. The Committee may issue Shares under the Plan for such
-----------
amount and form of consideration as determined by the Committee; provided,
however, that in no event shall the consideration be less than the par value of
the Shares. The certificates representing the Shares shall bear any legends
required by the Committee. The Company may require any Participant purchasing
Shares issued under this Section 9 to pay to the Company in cash upon demand
amounts necessary to satisfy any applicable federal, state or local tax
withholding requirements. If such Participant fails to pay the amount demanded,
the Company or any Parent or Subsidiary of the Company may withhold that amount
from other amounts payable to such Participant by the Company or any Parent or
Subsidiary of the Company, including salary, subject to applicable law. With
the consent of the Committee and subject to such requirements as may be imposed
by the Committee (including the requirements of Rule 16b-3, if applicable), such
Participant may deliver Shares to the Company to satisfy the withholding
obligation.
10. STOCK APPRECIATION RIGHTS.
-------------------------
(a) Grant. SARs may be granted under this Plan in tandem with an
-----
Option or as a freestanding SAR by the Committee, subject to such rules, terms
and conditions as the Committee prescribes.
-6-
<PAGE>
(b) SARs Non-Transferable. SARs granted under this Plan, and any
---------------------
interest therein, shall not be transferable or assignable by the Participant
receiving such SARs, and may not be made subject to execution, attachment or
similar process, otherwise than by will or by the laws of descent and
distribution and shall be exercisable during the life of the Participant only by
the Participant or any permitted transferee.
(c) Modification, Extension and Renewal of SARs. The Committee shall
-------------------------------------------
have the power to modify, extend or renew outstanding SARs and to authorize the
grant of new SARs in substitution therefor, provided that any such action may
not, without the written consent of the Participant holding a SAR, impair any
rights under any SAR previously granted. Notwithstanding any other provision of
this Plan, the Committee may accelerate the earliest date or dates on which
outstanding SARs (or any installments thereof) are exercisable.
(d) Exercise.
--------
(i) A SAR shall be exercisable only at the time or times
established by the Committee; provided, however, that no SAR shall be
exercisable after the expiration of ten (10) years from the date the SAR is
granted. If a SAR is granted in connection with an Option, the SAR shall be
exercisable only to the extent and on the same conditions that the related
Option could be exercised. Upon exercise of a SAR, any Option or portion thereof
to which the SAR relates shall terminate. If a SAR is granted in connection with
an Option, upon exercise of the Option, the SAR or portion thereof to which the
Option relates shall terminate.
(ii) The Committee may withdraw any SAR granted under this Plan at any
time for any reason or no reason whatsoever and may impose any terms,
conditions, or restrictions upon the exercise of a SAR or adopt rules and
regulations from time to time affecting the rights of holders of SARs. Such
rules and regulations may govern the right to exercise SARs granted before
adoption or amendment of such rules and regulations as well as SARs granted
thereafter.
(iii) Each SAR shall entitle the holder, upon exercise, to receive
from the Company in exchange therefor an amount equal in value to the excess of
the Fair Market Value on the date of exercise of one Share over its Fair Market
Value on the date of grant (or, in the case of a SAR granted in connection with
an Option, the option exercise price per Share under the Option to which the SAR
relates), multiplied by the number of Shares covered by the SAR or the Option,
or portion thereof, that is surrendered. No SAR shall be exercisable at a time
that the amount determined under this subsection is negative. Payment by the
Company upon exercise of an SAR may be made in Shares valued at Fair Market
Value, in cash, or partly in Shares and partly in cash, all as determined by the
Committee.
(iv) A fractional Share shall not be issued upon exercise of a SAR and
any fractions of a Share that would have resulted shall either be cashed out at
Fair Market Value or the number of Shares issuable under the SAR shall be
rounded down to the nearest whole number, as determined by the Committee.
-7-
<PAGE>
(v) Each Participant who has exercised a SAR shall, upon notification
of the amount due, pay to the Company in cash amounts necessary to satisfy any
applicable federal, state or local tax withholding requirements. If such
Participant fails to pay the amount demanded, the Company or any Parent or
Subsidiary of the Company may withhold that amount from other amounts payable to
such Participant by the Company or any Parent or Subsidiary, including salary,
subject to applicable law. With the consent of the Committee and subject to such
requirements as may be imposed by the Committee (including the requirements of
Rule 16b-3, if applicable), a Participant may satisfy this obligation, in whole
or in part, by having the Company withhold from any Shares to be issued upon the
exercise that number of Shares that would satisfy the withholding amount due or
by delivering Shares to the Company to satisfy the withholding amount.
(vi) Upon the exercise of a SAR for Shares, the number of Shares
reserved for issuance under this Plan shall be reduced by the number of Shares
issued.
11. PRIVILEGES OF STOCK OWNERSHIP. No Participant receiving any Award under
-----------------------------
this Plan shall have any of the rights of a stockholder with respect to any
Shares until the date of issue to the Participant of a stock certificate for
such Shares. No adjustment shall be made for dividends or distributions or
other rights for which the record date is prior to such date, except as provided
in this Plan. The Company shall provide to each Optionee and each Participant
holding SARs a copy of the annual financial statements of the Company, at such
time after the close of each fiscal year of the Company as such statements are
released by the Company to its stockholders.
12. NO OBLIGATION TO EMPLOY; NO RIGHT TO FUTURE GRANTS. Nothing in this Plan
--------------------------------------------------
or any Award granted under this Plan shall confer on any Participant any right
(a) to continue in the employ of, or other relationship with, the Company or any
Parent or Subsidiary of the Company or limit in any way the right of the Company
or any Parent, Subsidiary or Affiliate of the Company to terminate the
Participant's employment or other relationship at any time, with or without
cause, or (b) to have any Award(s) granted to such Participant under this Plan,
or any other plan, or to acquire any other securities of the Company, in the
future.
13. ADJUSTMENT OF AWARD SHARES. In the event that the number of outstanding
--------------------------
shares of Common Stock of the Company is changed by a stock dividend, stock
split, reverse stock split, combination, reclassification or similar change in
the capital structure of the Company without consideration, or if a substantial
portion of the assets of the Company are distributed, without consideration in a
spin-off or similar transaction, to the stockholders of the Company, the number
or kind of Shares available for Awards under this Plan, the number or kind of
Shares subject to outstanding Options or SARs and the exercise price per Share
of such Options, shall be proportionately adjusted, subject to any required
action by the Board or stockholders of the Company and compliance with
applicable securities laws; provided, however, that a fractional Share shall not
-----------------
be issued upon exercise of any Option or SAR and any fractions of a Share that
would have resulted shall either be cashed out at Fair Market Value or the
number of Shares issuable under the Option or SAR shall be rounded down to the
nearest whole number, as determined by the Committee; provided further, that the
exercise price may not be decreased to below the par value, if any, for the
Shares.
-8-
<PAGE>
14. ASSUMPTION OF AWARDS BY SUCCESSORS.
----------------------------------
(a) In the event of (i) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger or consolidation with a
wholly-owned subsidiary or a Parent or where there is no substantial change in
the stockholders of the corporation and the Awards granted under this Plan are
assumed by the successor corporation), or (ii) the sale of all or substantially
all of the assets of the Company, any or all outstanding Awards shall be assumed
by the successor corporation, which assumption shall be binding on all
Participants, an equivalent Award shall be substituted by such successor
corporation or the successor corporation shall provide substantially similar
consideration to Participants as was provided to stockholders (after taking into
account the existing provisions of the Participants' Awards such as the exercise
price and the vesting schedule of Options), and, in the case of outstanding
shares subject to a repurchase option, issue substantially similar shares or
other property subject to repurchase restrictions no less favorable to the
Participant.
(b) In the event such successor corporation, if any, refuses to assume
or substitute, as provided above, pursuant to an event described in subsection
(a) above, or in the event of a dissolution or liquidation of the Company, the
Awards shall, notwithstanding any contrary terms in the Grant or other agreement
pertaining to any such Award, expire on a date specified in a written notice
given by the Committee to the Participants specifying the terms and conditions
of such termination (which date must be at least twenty (20) days after the date
the Committee gives the written notice).
15. ADOPTION AND STOCKHOLDER APPROVAL. This Plan shall become effective on
---------------------------------
the date that it is adopted by the Board. This Plan shall be approved by the
stockholders of the Company, in any manner permitted by applicable corporate
law, within twelve (12) months before or after the date this Plan is adopted by
the Board. The Company will comply with the requirements of Rule 16b-3 (or its
successor) with respect to stockholder approval. Options and SARs may be
granted under the Plan at any time after the date the Plan is adopted by the
Board, subject to Section 17. However, no Option or SAR granted under this Plan
shall become exercisable until the Plan is approved by the stockholders, and all
grants under this Plan prior to such approval shall be conditioned on and
subject to such approval. No Shares may be awarded as bonuses or sold under
this Plan until the Plan has been adopted by the Board and approved by the
stockholders of the Company pursuant to this Section 15.
16. ADMINISTRATION. This Plan may be administered by the Board or a
--------------
Committee appointed by the Board (the "Committee"). If all of the directors are
not Disinterested Persons, the Board shall appoint a Committee consisting of not
less than two directors, each of whom is a Disinterested Person and at all times
during which the Company is registered under the Exchange Act, the Committee
shall be comprised of Disinterested Persons. As used in this Plan, references
to the "Committee" shall mean either such Committee or the Board if no committee
has been established. The interpretation by the Committee of any of the
provisions of this Plan, any related agreements, or any Option or SAR granted or
other Award received pursuant to this Plan shall be final and binding upon the
Company and all persons having an interest in any Award or any Shares purchased
pursuant to an Option, stock sale or SAR or received pursuant to any other
Award. Subject to the express provisions of the Plan, the Committee may impose
any terms,
-9-
<PAGE>
conditions, and restrictions on Awards, including the exercise of an Option or
SAR, Shares awarded as a stock bonus, or Shares issues under Section 9 of this
Plan. The restrictions may include, without limitation, restrictions concerning
transferability, repurchase by the Company, and forfeiture of the Shares issued,
such as the type of restrictions set forth in Section 5(h) of this Plan.
17. TERM OF PLAN. Options or SARs may be granted pursuant to this Plan and
------------
stock bonuses may be awarded under this Plan and Shares may be sold under this
Plan from time to time on or prior to April 30, 2004, a date which is less than
ten years after the earlier of the date of approval of this Plan by the Board or
the stockholders of the Company pursuant to Section 15 of this Plan.
18. AMENDMENT OR TERMINATION OF PLAN. The Board or Committee may, at any
--------------------------------
time, amend, alter, suspend or discontinue the Plan, but, except as provided in
Section 10(d)(ii) of this Plan, no amendment, alteration, suspension or
discontinuation shall be made which would impair the rights of any Participant
under any Award theretofore granted, without his or her consent, or which,
without the approval of the stockholders of the Company, would:
(a) except as provided in Section 13 of the Plan, increase the total
number of Shares reserved for the purposes of the Plan;
(b) extend the duration of the Plan;
(c) extend the period during and over which Options or SARs may be
exercised under the Plan; or
(d) change the class of persons eligible to receive Awards granted
hereunder (except as may be required to comport with changes in the Code, ERISA
or regulations promulgated thereunder).
Without limiting the foregoing, the Committee may at any time or from time to
time authorize the Company, with the consent of the respective Participants, to
issue new Awards in exchange for the surrender and cancellation of any or all
outstanding Awards.
19. APPLICABLE LAW AND REGULATIONS. The obligations of the Company under
------------------------------
this Plan are subject to the approval of state and federal authorities or
agencies with jurisdiction over the subject matter hereof. The Company shall
not be obligated to issue or deliver Shares under this Plan if such issuance or
delivery would violate applicable state or federal securities laws, or if
compliance with such laws would, in the opinion of the Company, be unduly
burdensome or require the disclosure of information which would not be in the
Company's best interests.
20. SECTION 16 CONSIDERATIONS. With respect to persons subject to Section 16
-------------------------
of the Exchange Act, Awards granted or awarded under the Plan, the cash
settlement of SARs and the tax withholding provisions of this Plan are intended
to comply with all applicable conditions of Rule 16b-3 or its successors under
the Exchange Act. To the extent any provision
-10-
<PAGE>
of this Plan or any action by the Committee fails to so comply, any such
provision or action shall be deemed null and void to the extent permitted by law
and deemed advisable by the Committee. Persons subject to Section 16 of the
Exchange Act are advised that there may be considerations relevant to
transactions they engage in with respect to the Awards or the Shares (in
addition to the provisions of the Plan or actions of the Committee) which may
determine whether such transactions comply with all applicable conditions of
Rule 16b-3 or its successors under the Exchange Act. Such considerations may
include, by way of example, restrictions on the exercise of SARs during the
first six (6) months following the date of grant and resales of Shares acquired
upon receipt of an Award or exercise of an Option.
21. CERTAIN DEFINITIONS. As used in this Plan, the following terms shall
-------------------
have the following meanings:
(a) "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company if, at the time of the
granting of the Award, each of the corporations other than the Company owns
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
(b) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Award, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(c) "Affiliate" means any corporation that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, another corporation, where "control" (including the terms
"controlled by" and "under common control with") means the possession, direct or
indirect, of the power to cause the direction of the management and policies of
the corporation, whether through the ownership of voting securities, by contract
or otherwise.
(d) "Disinterested Persons" shall have the meaning set forth in Rule
16b-3(c)(2) as promulgated by the Securities and Exchange Commission under
Section 16(b) of the Exchange Act, as such rule is amended from time to time and
as interpreted by the Securities and Exchange Commission.
(e) "Fair Market Value" shall mean the fair market value of the Shares
as determined by the Committee from time to time in good faith. If a public
market exists for the Shares, the Fair Market Value shall be the average of the
last reported bid and asked prices for Common Stock of the Company on the last
trading day prior to the date of determination or, in the event the Common Stock
of the Company is listed on a stock exchange or is a Nasdaq National Market
security, the Fair Market Value shall be the closing price on such exchange or
system on the last trading day prior to the date of determination.
-11-
<PAGE>
EXHIBIT A
STOCK OPTION GRANT
Optionee:
------------------------------------
Address:
------------------------------------
------------------------------------
Total Shares Subject to Option:
--------------
Exercise Price Per Share:
---------------------
Date of Grant:
-------------------------------
Expiration Date of Option:
-------------------
Type of Stock Option: Incentive:
--------------- -------------------
Nonqualified:
----------------
1. Grant Of Option. OXIS International, Inc., a Delaware corporation (the
---------------
"Company"), hereby grants to the optionee named above ("Optionee") an option
(this "Option") to purchase the total number of shares of common stock of the
Company set forth above (the "Shares") at the exercise price per share set forth
above (the "Exercise Price"), subject to all of the terms and conditions of this
grant and the Company's 1994 Stock Incentive Plan, as amended to the date hereof
(the "Plan"). If designated as an incentive stock option above, this Option is
intended to qualify as an "incentive stock option" ("ISO") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
Unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed to them in the Plan.
2. Exercise Period of Option. The option rights granted hereunder are
-------------------------
exercisable during the time period or periods, and as to the number of Shares
exercisable during each time period, as follows:
_______ Shares, or any part thereof, may be exercised at any time or
times, from and including ______ to and including ______;
An additional ______ Shares, or any part thereof, may be exercised at
any time or times, from and including _____ to and including_____;
An additional ______ Shares, or any part thereof, may be exercised at
any time or times, from and including ______ to and including_____;
- A-1 -
<PAGE>
An additional _____ Shares, or any part thereof, may be exercised at any
time or times, from and including _____ to and including _____;
And the remaining _____ Shares, or any part thereof, may be exercised at any
time or times, from and including _____ to and including _____.
Notwithstanding the above, (i)
the Committee or to the extent a Committee has not been appointed, the Board of
Directors (it being understood in such event reference herein to the Committee
shall mean the Board of Directors), in its sole discretion, may, upon written
notice to the Optionee, accelerate the earliest date or dates on which any of
the Option rights granted hereunder are exercisable, and (ii) the minimum number
of Shares that may be purchased upon any partial exercise of the Option is One
Hundred (100) Shares, and (iii) this Option shall expire on the Expiration Date
set forth above and must be exercised, if at all, on or before the Expiration
Date. The portion of Shares as to which an Option is exercisable in accordance
with the above schedule as of the applicable dates shall be deemed "Vested
Options."
3. Restriction on Exercise. This Option may not be exercised unless such
-----------------------
exercise is in compliance with the Securities Act of 1933, as amended, and all
applicable state securities laws, as they are in effect on the date of exercise,
and the requirements of any stock exchange or over-the-counter market on which
the Company's Common Stock may be listed or quoted at the time of exercise.
Optionee understands that the Company is under no obligation to register,
qualify or list the Shares with the Securities and Exchange Commission, any
state securities commission or any stock exchange to effect such compliance.
4. Termination of Option. Except as provided below in this Section 4,
---------------------
this Option shall terminate and may not be exercised if Optionee ceases to be
employed by, or provide services to, the Company or by any Parent or Subsidiary
of the Company (or, in the case of a nonqualified stock option, by or to any
Affiliate of the Company). Optionee shall be considered to be employed by the
Company for all purposes under this Section 4 if Optionee is an officer,
director or full-time employee of the Company or any Parent, Subsidiary or
Affiliate of the Company or if the Committee determines that Optionee is
rendering substantial services as a part-time employee, consultant, contractor
or advisor to the Company or any Parent, Subsidiary or Affiliate of the Company.
The Committee shall have discretion to determine whether Optionee has ceased to
be employed by the Company or any Parent, Subsidiary or Affiliate of the Company
and the effective date on which such employment terminated (the "Termination
Date").
5. Termination Generally. If Optionee ceases to be employed by the
----------------------
Company and all parents, subsidiaries or affiliates of the Company for any
reason except death or disability, the vested options, to the extent (and only
to the extent) exercisable by Optionee on the Termination Date, may be exercised
by Optionee, but only within thirty (30) days after the Termination Date;
provided that this option may not be exercised in any event after the expiration
date.
6. Death or Disability. If Optionee's employment with the Company and all
-------------------
Parents, Subsidiaries and Affiliates of the Company is terminated because of the
death of Optionee or the permanent and total disability of Optionee within the
meaning of Section 22(e)(3) of the Code, the Vested Options, to the extent (and
only to the extent) exercisable by Optionee on the Termination Date, may be
exercised by Optionee (or Optionee's legal representative), but only within
twelve (12) months after the Termination Date; and provided further that this
Option may not be exercised in any event later than the Expiration Date.
- A-2 -
<PAGE>
7. No Right to Employment. Nothing in the Plan or this Grant shall confer
----------------------
on Optionee any right to continue in the employ of, or other relationship with,
the Company or any Parent, Subsidiary or Affiliate of the Company or limit in
any way the right of the Company or any Parent, Subsidiary or Affiliate of the
Company to terminate Optionee's employment or other relationship at any time,
with or without cause.
8. Manner of Exercise.
------------------
(a) Exercise Agreement. This Option shall be exercisable by delivery
------------------
to the Company of an executed written Stock Option Exercise Agreement in the
form attached hereto as Exhibit 1, or in such other form as may be approved by
the Company, which shall set forth Optionee's election to exercise some or all
of this Option, the number of Shares being purchased, any restrictions imposed
on the Shares and such other representations and agreements as may be required
by the Company to comply with applicable securities laws.
(b) Exercise Price. The Stock Option Exercise Agreement shall be
--------------
accompanied by full payment of the Exercise Price for the Shares being
purchased. Payment for the Shares may be made in cash (by check), or, where
permitted by law, by any of the following methods approved by the Committee at
the date of grant of this Option, or any combinations thereof:
[_] by cancellation of indebtedness of the Company to the Optionee;
[_] by surrender of shares of Common Stock of the Company already owned by
the Optionee, or which were obtained by Optionee in the open public market,
having a Fair Market Value equal to the exercise price of the Option;
[_] by waiver of compensation due or accrued to Optionee for services
rendered;
[_] provided that a public market for the Company's stock exists, through a
"same day sale" commitment from the Optionee and a broker-dealer that is a
member of the National Association of Securities Dealers, Inc. (an "NASD
Dealer") whereby the Optionee irrevocably elects to exercise the Option and
to sell a portion of the Shares so purchased to pay for the exercise price
and whereby the NASD Dealer irrevocably commits upon receipt of such Shares
to forward the exercise price directly to the Company; or
[_] provided that a public market for the Company's stock exists, through a
"margin" commitment from the Optionee and an NASD Dealer whereby the
Optionee irrevocably elects to exercise this option and to pledge the
Shares so purchased to the NASD Dealer in a margin account as security for
a loan from the NASD Dealer in the amount of the exercise price, and
whereby the NASD Dealer irrevocably commits upon receipt of such Shares to
forward the exercise price directly to the Company.
9. Withholding Taxes. Prior to the issuance of the Shares upon exercise
-----------------
of this Option, Optionee must pay or make adequate provision for any applicable
federal or state withholding obligations of the Company. The Optionee may
provide for payment of Optionee's
- A-3 -
<PAGE>
minimum statutory withholding taxes upon exercise of the Option by requesting
that the Company retain Shares with a Fair Market Value equal to the minimum
amount of taxes required to be withheld, all as set forth in Section 7(c) of the
Plan. In such case, the Company shall issue the net number of Shares to the
Optionee by deducting the Shares retained from the Shares exercised.
10. Issuance of Shares. Provided that such notice and payment are in form
------------------
and substance satisfactory to counsel for the Company, the Company shall cause
the Shares to be issued in the name of Optionee or Optionee's legal
representative.
11. Notice of Disqualifying Disposition of ISO Shares. If the Option
-------------------------------------------------
granted to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (1) the date two years after the Date of Grant, or (2) the date one
year after exercise of the ISO with respect to the Shares to be sold or disposed
of, the Optionee shall immediately notify the Company in writing of such
disposition. Optionee acknowledges and agrees that Optionee may be subject to
income tax withholding by the Company on the compensation income recognized by
the Optionee from any such early disposition by payment in cash or out of the
current wages or other earnings payable to the Optionee.
12. Nontransferability of Option. This Option may not be transferred in
----------------------------
any manner other than by will or by the law of descent and distribution and may
be exercised during the lifetime of Optionee only by Optionee or other permitted
transferee. The terms of this Option shall be binding upon the executors,
administrators, successors and assigns of the Optionee.
13. Federal Tax Consequences. Set forth below is a brief summary, as of
------------------------
the date this form of Option Grant was adopted, of some of the federal tax
consequences of exercise of this Option and disposition of the Shares. THIS
SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT
TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION
OR DISPOSING OF THE SHARES.
14. Exercise of ISO. If this Option qualifies as an ISO, there will be no
---------------
regular federal income tax liability upon the exercise of this Option, although
the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price will be treated as an adjustment to alternative
minimum taxable income for federal income tax purposes and may subject the
Optionee to an alternative minimum tax liability in the year of exercise.
15. Exercise of Nonqualified Stock Option. If this Option does not qualify
-------------------------------------
as an ISO, there may be a regular federal income tax liability upon the exercise
of the Option. The Optionee will be treated as having received compensation
income (taxable at ordinary income tax rates) equal to the excess, if any, of
the Fair Market Value of the Shares on the date of exercise over the Exercise
Price. The Company will be required to withhold from Optionee's compensation or
collect from Optionee and pay to the applicable taxing authorities an amount
equal to a percentage of this compensation income at the time of exercise.
- A-4 -
<PAGE>
16. Disposition of Shares. In the case of a nonqualified option, if Shares
---------------------
are held for at least one year before disposition, any gain on disposition of
the Shares will be treated as long-term capital gain for federal and California
income tax purposes. In the case of an ISO, if Shares are held for at least one
year after the date of exercise and at least two years after the Date of Grant,
any gain on disposition of the Shares will be treated as long-term capital gain
for federal and California income tax purposes. If Shares acquired pursuant to
an ISO are disposed of within such one-year or two-year periods (a
"disqualifying disposition"), gain on such disqualifying disposition will be
treated as compensation income (taxable at ordinary income rates) to the extent
of the excess, if any, of the Fair Market Value of the Shares on the date of
exercise over the Exercise Price (the "Spread"). Any gain in excess of the
Spread shall be treated as capital gain.
17. Interpretation. Any dispute regarding the interpretation of this Grant
--------------
shall be submitted by Optionee or the Company to the Company's Board of
Directors or the Committee, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or Committee shall be
final and binding on the Company and Optionee.
18. Entire Agreement. The Plan and the Stock Option Exercise Agreement
----------------
attached hereto as Exhibit 1 are incorporated herein by this reference. This
Grant, the Plan and the Stock Option Exercise Agreement constitute the entire
agreement of the parties hereto and supersede all prior undertakings and
agreements with respect to the subject matter hereof.
- A-5 -
<PAGE>
OXIS INTERNATIONAL, INC., a
Delaware corporation
By:
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
ACCEPTANCE
Optionee hereby acknowledges receipt of a copy of the Plan, represents
that Optionee has read and understands the terms and provisions thereof, and
accepts this Option subject to all the terms and conditions of the Plan and this
Stock Option Grant. Optionee acknowledges that there may be adverse tax
consequences upon exercise of this Option or disposition of the Shares and that
Optionee should consult a tax advisor prior to such exercise or disposition.
OPTIONEE
-----------------------------------
Signature
-----------------------------------
Print Name
-----------------------------------
Date
- A-6 -
<PAGE>
EXHIBIT 1
TO STOCK OPTION GRANT
STOCK OPTION EXERCISE AGREEMENT
This Agreement is made this _________day of _______________ , 19___
between OXIS International, Inc., a Delaware corporation (the "Company"), and
the optionee named below ("Optionee").
Optionee:
------------------------------
Social Security Number:
----------------
Address:
-------------------------------
Number of Shares Purchased:
-----------
Price Per Share:
-----------------------
Aggregate Purchase Price:
-------------
Date of Option Grant:
------------------
Type of Stock Option: Incentive:
--------------- ----------------------
Nonqualified:
--------------------
Optionee hereby delivers to the Company the Aggregate Purchase Price,
to the extent permitted in the Option Grant, as follows [check as applicable and
complete]:
[_] cash (check) in the amount of $ , receipt of which is acknowledged
by the Company;
[_] by delivery of fully-paid, nonassessable and vested shares of the
Common Stock of the Company owned by Optionee and owned free and clear of
all liens, claims, encumbrances or security interests, valued at the
current fair market value of $_________ per share (determined in accordance
with the Plan);
[_] by the waiver hereby of compensation due or accrued for services rendered
in the amount of $ ;
[_] by delivery of a "same day sale" commitment from the Optionee and a broker
dealer that is a member of the National Association of Securities Dealers,
Inc. (an "NASD Dealer") whereby the Optionee irrevocably elects to exercise
the Option and to sell a portion of the Shares so purchased to pay for the
exercise price of $_________ and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward the exercise price directly
to the Company (this payment method may be used only if a public market for
the Company's stock exists); or
- A-7 -
<PAGE>
[_] by delivery of a "margin" commitment from the Optionee and an NASD Dealer
whereby the Optionee irrevocably elects to exercise this option and to
pledge the Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the exercise
price, and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the exercise price of $_________ directly to the Company
(this payment method may be used only if a public market for the Company's
stock exists).
The Company and Optionee hereby agree as follows:
1. Purchase of Shares. On this date and subject to the terms and
------------------
conditions of this Agreement, Optionee hereby exercises the Stock Option Grant
between the Company and Optionee dated as of the Date of Option Grant set forth
above (the "Grant"), with respect to the Number of Shares Purchased set forth
above of the Company's Common Stock (the "Shares") at an aggregate purchase
price equal to the Aggregate Purchase Price set forth above (the "Purchase
Price") and the Price per Share set forth above (the "Purchase Price Per
Share"). The term "Shares" refers to the Shares purchased under this Agreement
and includes all securities received (a) in replacement of the Shares, and (b)
as a result of stock dividends or stock splits in respect of the Shares.
Capitalized terms used herein that are not defined herein have the definitions
ascribed to them in the Plan or the Grant.
2. Representations of Purchaser. Optionee represents and warrants to the
----------------------------
Company that:
Optionee has received, read and understood the Plan and the Grant and
agrees to abide by and be bound by their terms and conditions.
Optionee is fully aware of (i) the highly speculative nature of the
investment in the Shares; (ii) the financial hazards involved; and (iii) the
potential lack of liquidity of the Shares [and the restrictions on
transferability of the Shares (e.g., that Optionee may not be able to sell or
dispose of the Shares or use them as collateral for loans)].
Optionee is capable of evaluating the merits and risks of this investment,
has the ability to protect Optionee's own interests in this transaction and is
financially capable of bearing a total loss of this investment.
[Optionee is purchasing the Shares for Optionee's own account for
investment purposes only and not with a view to, or for sale in connection with,
a distribution of the Shares within the meaning of the Securities Act of 1933,
as amended (the "1933 Act")].
[Optionee has no present intention of selling or otherwise disposing of all
or any portion of the Shares.]
3. [Compliance with Securities Laws. Optionee understands and
--------------------------------
acknowledges that the Shares have not been registered under the 1933 Act and
that, notwithstanding any other provision of the Grant to the contrary, the
exercise of any rights to purchase any Shares is
- A-8 -
<PAGE>
expressly conditioned upon compliance with the 1933 Act and all applicable state
securities laws. Optionee agrees to cooperate with the Company to ensure
compliance with such laws. The Shares are being issued under the 1933 Act
pursuant to [the Company will check the applicable box]:
[_] Section 4(2) of the 1933 Act
[_] Other: _________________________________.]
4. Federal Restrictions on Transfer. (a) Optionee understands that the
--------------------------------
Shares must be held indefinitely unless they are registered under the 1933 Act
or unless an exemption from such registration is available and that the
certificate(s) representing the Shares will bear a legend to that effect.
Optionee understands that the Company is under no obligation to register the
Shares, and that an exemption may not be available or may not permit Optionee to
transfer Shares in the amounts or at the times proposed by Optionee.]
5. [Rule 144. Optionee has been advised that Rule 144 promulgated under
--------
the 1933 Act, which permits certain resales of unregistered securities, requires
that a minimum of two (2) years elapse between the date of acquisition of Shares
from the Company or an affiliate of the Company and any resale under Rule 144.]
6. State Law Restrictions on Transfer. Optionee understands that
----------------------------------
transfer of the Shares may be restricted by applicable state securities laws,
and that the certificate(s) representing the Shares may bear a legend or legends
to that effect.
7. [Legends. Optionee understands and agrees that the certificate(s)
--------
representing the Shares will bear a legend in substantially the following form,
in addition to any other legends required by applicable law:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE 'SECURITIES ACT'), AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE SECURITIES ACT OR, IN THE OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER,
SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH."]
[BRACKETED SECTIONS APPLY ONLY IF THE SHARES HAVE NOT BEEN REGISTERED UNDER
THE 1933 ACT]
8. Stop-Transfer Notices. Optionee understands and agrees that, in order
---------------------
or ensure compliance with the restrictions referred to herein, the Company may
issue appropriate "stop-transfer" instructions to its transfer agent, if any,
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
- A-9 -
<PAGE>
9. Tax Consequences. OPTIONEE UNDERSTANDS THAT OPTIONEE MAY SUFFER
----------------
ADVERSE TAX CONSEQUENCES AS A RESULT OF OPTIONEE'S PURCHASE OR DISPOSITION OF
THE SHARES. OPTIONEE REPRESENTS THAT OPTIONEE HAS CONSULTED WITH ANY TAX
CONSULTANT(S) OPTIONEE DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR
DISPOSITION OF THE SHARES AND THAT OPTIONEE IS NOT RELYING ON THE COMPANY FOR
ANY TAX ADVICE.
10. Entire Agreement. The Plan and Grant are incorporated herein by
----------------
reference. This Agreement, the Plan and the Grant constitute the entire
agreement of the parties and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter
hereof, and are governed by California law except for that body of law
pertaining to conflict of laws.
OXIS INTERNATIONAL, INC.,
OPTIONEE A DELAWARE CORPORATION
By: By:
---------------------------------- -----------------------------------
Name: Name:
-------------------------------- ---------------------------------
Address: Title:
----------------------------- --------------------------------
----------------------------- --------------------------------
- A-10 -
<PAGE>
Exhibit 4.2
-----------
EXECUTION COPY
STOCK OPTION AGREEMENT
----------------------
(International BioClinical, Inc.)
THIS STOCK OPTION AGREEMENT ("Agreement") is entered into by and
between DDI Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
the person or entity whose name is set forth on the signature page hereto a
former stockholder and/or warrantholder of International BioClinical, Inc.
("IBC") (the "Option Holder").
RECITALS
--------
WHEREAS, the Company has consummated the simultaneous closings
contemplated by (i) the Stock Purchase Agreement, among the Company, Bioxytech
S.A. ("Bioxytech") and certain stockholders of Bioxytech and (ii) the Agreement
and Plan of Reorganization and Merger, between the Company and IBC (the "IBC
Merger Agreement"); and
WHEREAS, section 2.4 of the IBC Merger Agreement provides for the
issuance of options by the Company in connection with the consummation of the
transactions contemplated by such agreement.
NOW, THEREFORE, in consideration of the foregoing the parties hereto
hereby agree as follows:
1. Grant of Option Rights. Subject to the terms and conditions contained
----------------------
herein, the Company hereby grants to the Option Holder the option rights
specified herein:
(a) The number and class of shares of the Company's currently
authorized but unissued stock subject to the option rights granted hereunder are
an aggregate of the number of shares of the Company's common stock set forth
under the Option Holder's name on the signature page hereto.
(b) The option exercise price is $3.55 per share.
(c) The option rights granted hereunder, or any part thereof, may be
exercised at any time or times from the date hereof to and including July 15,
1998.
(d) Notwithstanding the provisions of subparagraph 1(c) above, the
minimum number of shares which may be purchased upon any partial exercise of the
option rights granted hereunder is 100 shares.
<PAGE>
2. Termination of Warrants and Options in IBC. Option Holder hereby
------------------------------------------
acknowledges and agrees that any and all warrants and options heretofore owned
by Option Holder entitling him, her or it to purchase or otherwise acquire stock
in IBC have been and are hereby cancelled and terminated as of the closing
contemplated by the IBC Merger Agreement.
3. Fractional Shares; Compliance with Laws. In no event shall the
---------------------------------------
Company be required to issue fractional shares upon the exercise of any option
rights granted hereunder.
No option rights granted hereunder may be exercised, and the Company
shall not be required to issue or deliver any certificate or certificates for
shares purchased upon the exercise of option rights granted hereunder until
there has been compliance with all then applicable requirements of law,
including such registration or other proceedings under federal and state
securities laws as may in the Company's opinion be necessary or appropriate.
4. Date of Grant; Expiration of Option Rights. The option rights granted
------------------------------------------
hereunder shall be deemed to have been granted on the date set forth below. The
option rights granted hereunder, to the extent such rights have not then expired
or been exercised, shall terminate and become null and void on July 15, 1998.
5. Nonassignability of Option Rights. The option rights granted
---------------------------------
hereunder (i) shall be exercisable only by the Option Holder, except in the
event of the death of the Option Holder, the Option Holder's personal
representative or any person who acquires such rights by bequest or inheritance
may exercise the rights set forth herein for a period of twelve (12) months
after the death of Option Holder, (ii) shall not be transferred, assigned,
pledged or hypothecated in any manner whatsoever, whether voluntarily,
involuntarily or by operation of law, and (iii) shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate, or otherwise dispose of the said option rights contrary to
the provisions hereof, the said option rights shall immediately terminate and
become null and void.
6. Adjustments. Appropriate proportionate adjustments shall be made by
-----------
the Company in the number and class of shares of stock subject to the option
rights granted hereunder and the exercise price of the option rights granted
hereunder in the event that (i) the common stock of the Company is changed by
reason of any stock split, reverse stock split, recapitalization, or other
change in the capital structure of the Company, or converted into or exchanged
for other securities as a result of any merger, consolidation or reorganization,
or (ii) the outstanding number of shares of common stock of the Company is
increased through payment of a stock dividend; provided, however, that the
Company shall not be required to issue fractional shares as a result of any such
adjustment. Any such adjustment shall be made upon approval by the Board of
Directors of the Company, whose determination shall be conclusive. No
adjustments shall be required by reason of the issuance or sale by the Company
for cash or other consideration of additional shares of its capital stock or
securities convertible into or exchangeable for shares of its capital stock.
New option rights may be substituted for the option rights granted
hereunder, or the Company's duties under this Agreement may be assumed by a
successor corporation other than the Company, or by an affiliate of such
successor corporation, in connection with any
-2-
<PAGE>
merger, consolidation, acquisition, reorganization, liquidation, or like
occurrence, in which the Company is involved and is not the successor
corporation, and to the full extent permitted thereby. Notwithstanding the
foregoing provisions of this paragraph 6, in the event such successor
corporation, or affiliate of such successor corporation, refuses to substitute
new option rights for, and substantially equivalent to, the option rights
granted hereunder, or to assume the option rights granted hereunder, or if the
Board of Directors of the Company determines, in its sole discretion, that
option rights outstanding under this Agreement should not then continue to be
outstanding following the occurrence of any such event, the option rights
granted hereunder shall terminate and thereupon become null and void (i) upon
the dissolution or liquidation of the Company, or similar occurrence, or (ii)
upon any merger, consolidation, acquisition, or similar occurrence, if the
Company is not the surviving corporation; provided, however, that the Option
Holder shall be given notice of such dissolution, liquidation, merger,
consolidation, acquisition, or similar occurrence and shall have the right, for
a period of thirty (30) days after such notice is given by the Company, to
exercise any unexpired option rights granted hereunder, to the extent such
option rights are then exercisable.
7. Method of Exercise; Rights of Option Holder in Stock. The option
----------------------------------------------------
rights granted hereunder shall be exercisable upon written notice of election to
exercise to the Company specifying the number of shares being purchased,
accompanied by payment to the Company of the option exercise price as to the
shares being purchased. Payment of the option exercise price shall be in cash.
Neither the Option Holder nor his, her or its personal representatives, heirs,
or legatees (or, with respect to an Option Holder who is not a natural person,
its successors and assigns) shall have any rights or privileges of a stockholder
of the Company in respect to the shares issuable upon the exercise of the option
rights granted hereunder, unless and until certificates representing such shares
shall have been issued and delivered in accordance with the terms hereof. As a
condition to the exercise of this option, the Option Holder, or his, her or its
personal representatives, heirs or legatees, (or, with respect to an Option
Holder who is not a natural person, its successors and assigns) shall make
arrangements as the Company may require for the satisfaction of any federal,
state or local withholding tax obligations that may arise in connection with
such exercise.
8. Notices. Any notice to be given under the terms of this Agreement
-------
shall be mailed, telecopied, or delivered to the Company, in care of its
Secretary, at the principal office of the Company, and any notice to be given to
the Option Holder shall be mailed, telecopied, or delivered to him, her or it at
the address given beneath his, her or its signature hereto, or at such other
address as either party may hereafter designate in writing to the other. Any
such notice shall be deemed to have been duly given forty-eight (48) hours after
the deposit thereof in the United States mail, addressed as aforesaid,
registered or certified and postage and registry or certification fee prepaid.
9. Securities Law Compliance.
-------------------------
(b) The Option Holder represents and agrees that the option rights
hereunder are, and the shares to be acquired upon exercising the option rights
will be, acquired for investment, and not with a view to the sale or
distribution thereof. The Option Holder also represents and agrees that by
reason of his, her or its business or financial experience he, she or it
-3-
<PAGE>
is capable of evaluating the risks and merits of an investment in the Company
and of protecting his, her or its own interests in connection with an investment
in the Company. Option Holder understands and acknowledges that the option
rights hereunder and the underlying shares have not been registered under the
Securities Act of 1933, as amended (the "Act") or French securities laws, or
qualified under any state securities laws in the United States (collectively,
"Applicable Securities Laws") and that, notwithstanding any other provision in
this Agreement to the contrary, the exercise of any rights to purchase shares
hereunder is expressly conditioned upon compliance with the Act and all
applicable state securities laws. In the event that the sale of shares is not
registered under the Act or is not registered or qualified under applicable
state securities laws, but an exemption is available which requires an
investment representation or other representation, the Option Holder shall
represent and agree at the time of exercise that the shares being acquired upon
exercising the option rights are being acquired for investment, and not with a
view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel. Certificates evidencing shares acquired under this Agreement in an
unregistered transaction may (as deemed necessary by counsel to the Company)
bear the following restrictive legend (and such other restrictive legends as are
required or deemed advisable under the provisions of any applicable law):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR IN CONNECTION WITH THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(b) The Option Holder further acknowledges and agrees that the shares
of common stock which he, she or it will be entitled to purchase upon the
exercise of options granted hereunder may not be transferred or resold except as
permitted under the Applicable Securities Laws or an exemption therefrom.
10. Persons Bound. Subject to the provisions against assignment set forth
-------------
in paragraph 5 hereof, and to the provisions of paragraph 6 hereof, this
Agreement shall be binding upon and inure to the benefit of any successor or
successors of the Company, and the personal representatives, heirs, and legatees
of the Option Holder (or, with respect to an Option Holder who is not a natural
person, its successors and assigns).
11. Tax Liability. THE OPTION HOLDER UNDERSTANDS THAT THIS IS A NON-
-------------
QUALIFIED OPTION UNDER FEDERAL TAX LAWS AND THAT OPTION HOLDER MAY SUFFER
ADVERSE CONSEQUENCES AS A RESULT OF OPTION HOLDER'S PURCHASE OR DISPOSITION OF
THE UNDERLYING SHARES. The Option Holder understands that, under current law,
Option Holder will recognize ordinary income in the year or years that the
option rights hereunder are exercised and is advised to seek the advice of his
tax counsel or other tax advisor with respect to the precise treatment of the
exercise of the rights hereunder and the sale of the underlying shares.
-4-
<PAGE>
12. Miscellaneous.
-------------
(a) This Agreement constitutes the entire contract between the parties
hereto with regard to the matters addressed herein and may be modified or
amended only by written agreement of the Option Holder and the Company.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California, as such laws are applied to contracts
entered into and performed in such State.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on or as of the date set forth below, and the Option Holder by such
execution represents that the address set forth below is his, her or its bona
fide place of residence and domicile.
Date: September 7, 1994 DDI PHARMACEUTICALS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
OPTION HOLDER
------------------------------------
(Signature)
Name:
-------------------------------
Address:
----------------------------
------------------------------------
------------------------------------
Number of shares of the Company's
common stock subject to option
rights:
----------------------------
-5-
<PAGE>
EXECUTION COPY
STOCK OPTION AGREEMENT
----------------------
(Bioxytech S.A.)
THIS STOCK OPTION AGREEMENT ("Agreement") is entered into by and
between DDI Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
the person or entity whose name is set forth on the signature page hereto a
former stockholder and/or warrantholder of Bioxytech S.A. ("Bioxytech") (the
"Option Holder").
RECITALS
--------
WHEREAS, the Company has consummated the simultaneous closings
contemplated by (i) the Stock Purchase Agreement, among the Company, Bioxytech
and certain stockholders of Bioxytech (the "Bioxytech Purchase Agreement") and
(ii) the Agreement and Plan of Reorganization and Merger, between the Company
and International BioClinical, Inc.; and
WHEREAS, section 2.4 of the Bioxytech Purchase Agreement provides for
the issuance of options by the Company in connection with the consummation of
the transactions contemplated by such agreement and in exchange for the
Bioxytech Warrants (as defined in the Bioxytech Purchase Agreement) held by the
Option Holder.
NOW, THEREFORE, in consideration of the foregoing the parties hereto
hereby agree as follows:
1. Grant of Option Rights. Subject to the terms and conditions contained
----------------------
herein, the Company hereby grants to the Option Holder the option rights
specified herein:
(a) The number and class of shares of the Company's currently
authorized but unissued stock subject to the option rights granted hereunder are
an aggregate of the number of shares of the Company's common stock set forth
under the Option Holder's name on the signature page hereto.
(b) The option exercise price is $3.55 per share.
(c) The option rights granted hereunder, or any part thereof, may be
exercised at any time or times from the date hereof to and including July 15,
1998.
(d) Notwithstanding the provisions of subparagraph 1(c) above, the
minimum number of shares which may be purchased upon any partial exercise of the
option rights granted hereunder is 100 shares.
2. Termination of Warrants and Options in Bioxytech. Option Holder
------------------------------------------------
hereby acknowledges and agrees that any and all warrants and options heretofore
owned by Option Holder entitling him, her or it to purchase or otherwise acquire
stock in Bioxytech, including his,
<PAGE>
her or its Bioxytech Warrants, have been and are hereby cancelled and terminated
as of the closing contemplated by the Bioxytech Purchase Agreement.
3. Fractional Shares; Compliance with Laws. In no event shall the
---------------------------------------
Company be required to issue fractional shares upon the exercise of any option
rights granted hereunder.
No option rights granted hereunder may be exercised, and the Company
shall not be required to issue or deliver any certificate or certificates for
shares purchased upon the exercise of option rights granted hereunder until
there has been compliance with all then applicable requirements of law,
including such registration or other proceedings under federal and state
securities laws as may in the Company's opinion be necessary or appropriate.
4. Date of Grant; Expiration of Option Rights. The option rights granted
------------------------------------------
hereunder shall be deemed to have been granted on the date set forth below. The
option rights granted hereunder, to the extent such rights have not then expired
or been exercised, shall terminate and become null and void on July 15, 1998.
5. Nonassignability of Option Rights. The option rights granted
---------------------------------
hereunder (i) shall be exercisable only by the Option Holder, except in the
event of the death of the Option Holder, the Option Holder's personal
representative or any person who acquires such rights by bequest or inheritance
may exercise the rights set forth herein for a period of twelve (12) months
after the death of Option Holder, (ii) shall not be transferred, assigned,
pledged or hypothecated in any manner whatsoever, whether voluntarily,
involuntarily or by operation of law, and (iii) shall not be subject to
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate, or otherwise dispose of the said option rights contrary to
the provisions hereof, the said option rights shall immediately terminate and
become null and void.
6. Adjustments. Appropriate proportionate adjustments shall be made by
-----------
the Company in the number and class of shares of stock subject to the option
rights granted hereunder and the exercise price of the option rights granted
hereunder in the event that (i) the common stock of the Company is changed by
reason of any stock split, reverse stock split, recapitalization, or other
change in the capital structure of the Company, or converted into or exchanged
for other securities as a result of any merger, consolidation or reorganization,
or (ii) the outstanding number of shares of common stock of the Company is
increased through payment of a stock dividend; provided, however, that the
Company shall not be required to issue fractional shares as a result of any such
adjustment. Any such adjustment shall be made upon approval by the Board of
Directors of the Company, whose determination shall be conclusive. No
adjustments shall be required by reason of the issuance or sale by the Company
for cash or other consideration of additional shares of its capital stock or
securities convertible into or exchangeable for shares of its capital stock.
New option rights may be substituted for the option rights granted
hereunder, or the Company's duties under this Agreement may be assumed by a
successor corporation other than the Company, or by an affiliate of such
successor corporation, in connection with any merger, consolidation,
acquisition, reorganization, liquidation, or like occurrence, in which the
Company is involved and is not the successor corporation, and to the full extent
permitted
-2-
<PAGE>
thereby. Notwithstanding the foregoing provisions of this paragraph 6, in the
event such successor corporation, or affiliate of such successor corporation,
refuses to substitute new option rights for, and substantially equivalent to,
the option rights granted hereunder, or to assume the option rights granted
hereunder, or if the Board of Directors of the Company determines, in its sole
discretion, that option rights outstanding under this Agreement should not then
continue to be outstanding following the occurrence of any such event, the
option rights granted hereunder shall terminate and thereupon become null and
void (i) upon the dissolution or liquidation of the Company, or similar
occurrence, or (ii) upon any merger, consolidation, acquisition, or similar
occurrence, if the Company is not the surviving corporation; provided, however,
that the Option Holder shall be given notice of such dissolution, liquidation,
merger, consolidation, acquisition, or similar occurrence and shall have the
right, for a period of thirty (30) days after such notice is given by the
Company, to exercise any unexpired option rights granted hereunder, to the
extent such option rights are then exercisable.
7. Method of Exercise; Rights of Option Holder in Stock. The option
----------------------------------------------------
rights granted hereunder shall be exercisable upon written notice of election to
exercise to the Company specifying the number of shares being purchased,
accompanied by payment to the Company of the option exercise price as to the
shares being purchased. Payment of the option exercise price shall be in cash.
Neither the Option Holder nor his, her or its personal representatives, heirs,
or legatees (or, with respect to an Option Holder who is not a natural person,
its successors and assigns) shall have any rights or privileges of a stockholder
of the Company in respect to the shares issuable upon the exercise of the option
rights granted hereunder, unless and until certificates representing such shares
shall have been issued and delivered in accordance with the terms hereof. As a
condition to the exercise of this option, the Option Holder, or his, her or its
personal representatives, heirs or legatees, (or, with respect to an Option
Holder who is not a natural person, its successors and assigns) shall make
arrangements as the Company may require for the satisfaction of any federal,
state or local withholding tax obligations that may arise in connection with
such exercise.
8. Notices. Any notice to be given under the terms of this Agreement
-------
shall be mailed, telecopied, or delivered to the Company, in care of its
Secretary, at the principal office of the Company, and any notice to be given to
the Option Holder shall be mailed, telecopied, or delivered to him, her or it at
the address given beneath his, her or its signature hereto, or at such other
address as either party may hereafter designate in writing to the other. Any
such notice shall be deemed to have been duly given forty-eight (48) hours after
the deposit thereof in the United States mail, addressed as aforesaid,
registered or certified and postage and registry or certification fee prepaid.
9. Securities Law Compliance.
-------------------------
(a) The Option Holder represents and agrees that the option rights
hereunder are, and the shares to be acquired upon exercising the option rights
will be, acquired for investment, and not with a view to the sale or
distribution thereof. The Option Holder also represents and agrees that by
reason of his, her or its business or financial experience he, she or it is
capable of evaluating the risks and merits of an investment in the Company and
of protecting his, her or its own interests in connection with an investment in
the Company. Option Holder
-3-
<PAGE>
understands and acknowledges that the option rights hereunder and the underlying
shares have not been registered under the Securities Act of 1933, as amended
(the "Act") or French securities laws, or qualified under any state securities
laws in the United States (collectively, "Applicable Securities Laws") and that,
notwithstanding any other provision in this Agreement to the contrary, the
exercise of any rights to purchase shares hereunder is expressly conditioned
upon compliance with the Act and all applicable state securities laws. In the
event that the sale of shares is not registered under the Act or is not
registered or qualified under applicable state securities laws, but an exemption
is available which requires an investment representation or other
representation, the Option Holder shall represent and agree at the time of
exercise that the shares being acquired upon exercising the option rights are
being acquired for investment, and not with a view to the sale or distribution
thereof, and shall make such other representations as are deemed necessary or
appropriate by the Company and its counsel. Certificates evidencing shares
acquired under this Agreement in an unregistered transaction may (as deemed
necessary by counsel to the Company) bear the following restrictive legend (and
such other restrictive legends as are required or deemed advisable under the
provisions of any applicable law):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO OR IN CONNECTION WITH THE SALE OR
DISTRIBUTION THEREOF. NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
(b) The Option Holder further acknowledges and agrees that the shares
of common stock which he, she or it will be entitled to purchase upon the
exercise of options granted hereunder may not be transferred or resold except as
permitted under the Applicable Securities Laws or an exemption therefrom.
10. Persons Bound. Subject to the provisions against assignment set forth
-------------
in paragraph 5 hereof, and to the provisions of paragraph 6 hereof, this
Agreement shall be binding upon and inure to the benefit of any successor or
successors of the Company, and the personal representatives, heirs, and legatees
of the Option Holder (or, with respect to an Option Holder who is not a natural
person, its successors and assigns).
11. Tax Liability. THE OPTION HOLDER UNDERSTANDS THAT THIS IS A NON-
-------------
QUALIFIED OPTION UNDER FEDERAL TAX LAWS AND THAT OPTION HOLDER MAY SUFFER
ADVERSE CONSEQUENCES AS A RESULT OF OPTION HOLDER'S PURCHASE OR DISPOSITION OF
THE UNDERLYING SHARES. The Option Holder understands that, under current law,
Option Holder will recognize ordinary income in the year or years that the
option rights hereunder are exercised and is advised to seek the advice of his
tax counsel or other tax advisor with respect to the precise treatment of the
exercise of the rights hereunder and the sale of the underlying shares.
-4-
<PAGE>
12. Miscellaneous.
-------------
(a) This Agreement constitutes the entire contract between the parties
hereto with regard to the matters addressed herein and may be modified or
amended only by written agreement of the Option Holder and the Company.
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California, as such laws are applied to contracts
entered into and performed in such State.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed on or as of the date set forth below, and the Option Holder by such
execution represents that the address set forth below is his, her or its bona
fide place of residence and domicile.
Date: September 7, 1994 DDI PHARMACEUTICALS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
OPTION HOLDER
------------------------------------
(Signature)
Name:
-------------------------------
Address:
----------------------------
------------------------------------
------------------------------------
Number of shares of the Company's
common stock subject to option
rights:
----------------------------
-5-
<PAGE>
EXHIBIT 5.1
November 20, 1995
OXIS International, Inc.
6040 N. Cutter Circle
Suite 317
Portland, Oregon 97217-3935
Re: OXIS International, Inc. Registration Statement on Form S-8
-----------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 filed by
OXIS International, Inc., a Delaware corporation (the "Company"), with the
Securities and Exchange Commission in connection with the proposed issuance and
sale by the Company of up to 1,285,781 shares of Company Common Stock, par value
$0.50 (the "Common Stock"). As counsel for the Company in connection with the
registration, we render the opinion set forth below.
We have examined, and are familiar with, originals or copies, certified
or otherwise authenticated to our satisfaction, of documents, corporate records
and other writings which we consider relevant for the purposes of this opinion.
We have also reviewed the Certificate of Incorporation, the Bylaws and pertinent
resolutions of the Board of Directors and the stockholders of the Company. In
addition, we have ascertained or verified other facts which we deem relevant for
the purposes of this opinion.
In connection with this examination, we have assumed the genuineness of
all signatures on original documents, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
Based upon the foregoing, and such other legal considerations as we
deem appropriate, it is our opinion that the shares of Common Stock, when issued
in accordance with the terms of the Plan or upon exercise of the Option
Agreements in accordance with the terms thereof, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
JACKSON, TUFTS, COLE & BLACK, LLP
<PAGE>
EXHIBIT 24.1
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of OXIS International , Inc. (formerly DDI Pharmaceuticals, Inc.) of
our report dated March 21, 1995, which included an explanatory paragraph
relating to the Company's ability to continue as a going concern, appearing in
the Annual Report on Form 10-K of OXIS International, Inc. for the year ended
December 31, 1994.
DELOITTE & TOUCHE, LLP
Portland, Oregon
November 17, 1995
