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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) December 1, 1995
--------------------
OXIS INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in Charter)
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<S> <C> <C>
DELAWARE 0-8092 94-1620407
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(STATE OR OTHER (COMMISSION FILE NUMBER) (IRS EMPLOYER
JURISDICTION OF IDENTIFICATION NUMBER)
INCORPORATION)
</TABLE>
6040 N. Cutter Circle, Suite 317, Portland, OR 97217
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code. (508) 283-3911
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
Total number of sequentially
numbered pages: 20
----
Exhibit Index at page: 4
----
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ITEM 5. OTHER EVENTS
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Effective December 1, 1995, OXIS International, Inc. ("OXIS") sold
convertible debentures initially convertible into an aggregate of 960,000 shares
of its Common Stock, and warrants to purchase an aggregate of 192,000 shares of
its Common Stock in a private placement to offshore investors for an aggregate
consideration of $1,200,000. An additional $55,000 was raised by an additional
sale of such debentures and warrants effective December 20, 1995. The
securities sold (including the underlying Common Stock) are not registered under
the Securities Act of 1933, as amended, and may not be re-offered or re-sold
absent registration under the Securities Act or available exemptions from such
registration requirements.
A copy of the Press Release with respect to the December 1, 1995
transaction is attached as an exhibit to this report. A copy of the form of
debenture and the form of warrant issued in the above offering are attached as
exhibits to this report.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(c) Exhibits
99.1 Press Release, dated December 4, 1995.
99.2 Form of 8% Convertible Subordinated Debenture Due December 31, 1997.
99.3 Form of Warrant to Purchase Common Stock.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
OXIS INTERNATIONAL, INC.
(Registrant)
Dated: January 2, 1996 By: /s/ Anna D. Barker
-----------------------------------
Anna D. Barker
President and Chief Executive Officer
3
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EXHIBIT INDEX
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<CAPTION>
Page No. in
sequentially numbered
Exhibit No. Description current report
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<S> <C> <C>
99.1 Press Release dated December 4, 1995. 5
99.2 Form of 8% Convertible Subordinated 6
Debenture Due December 31, 1997.
99.3 Form of Warrant to Purchase Common Stock. 12
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4
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EXHIBIT 99.1
For more information:
Claudia Groth
OXIS International, Inc.
(503) 283-3911
OXIS INTERNATIONAL REPORTS PRIVATE PLACEMENT
PORTLAND, OR. -- DECEMBER 4, 1995 -- OXIS International, Inc. (NASDAQ: OXIS)
announced today it has raised $1.2 million through a private placement of
convertible subordinated debentures and warrants. The debentures are due
December 31, 1997 and are initially convertible into shares of common stock at a
conversion rate of US$1.25 per share; the rate may be adjusted under certain
circumstances. The warrants issued were for 192,000 shares of common stock,
exercisable at $2.00 per share. The number of shares may be adjusted under
certain circumstances.
The offering of the debentures and warrants was made through a private placement
agent. The debentures and warrants and the underlying shares of common stock are
not registered under the Securities Act of 1933, as amended. The foregoing
securities may not be offered and sold in the United States, nor may the
warrants be exercised in the United States, absent registration under the
Securities Act or an applicable exemption from registration requirements.
OXIS International, Inc. (NASDAQ: OXIS) is a drug development and diagnostic
company dedicated to the research and development of technologies and products
to combat diseases associated with free radicals and reactive oxygen species
(ROS). The Company, headquartered in Portland, Oregon, has research facilities
in Malvern, Pennsylvania, and outside Paris, France.
###
5
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EXHIBIT 99.2
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THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES, TO OR FOR THE ACCOUNT OR BENEFIT
OF, UNITED STATES PERSONS, UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF
THE OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER CASE IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT. THE RESALE SAFE HARBOR OF REGULATION S
DOES NOT PERMIT THE RESALE OF THE SECURITIES IN THE UNITED STATES OR TO A U.S.
PERSON. OFFERS AND SALES MAY BE MADE IN THE UNITED STATES OR TO U.S. PERSONS
ONLY PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENT.
No. ______ U.S. $____________
OXIS INTERNATIONAL, INC.
8% CONVERTIBLE SUBORDINATED DEBENTURE DUE DECEMBER 31, 1997
THIS DEBENTURE is one of a duly authorized issue of Debentures of OXIS
International, Inc., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company") designated as its 8% Convertible
Subordinated Debentures Due December 31, 1997, in an aggregate principal amount
not exceeding Three Million United States Dollars (U.S. $3,000,000), issued
pursuant to that certain Subscription and Purchase Agreement dated
_______________________, between the Company and the purchaser hereof or the
purchaser's assignee (the "Purchase Agreement"). Reference is hereby made to
the Purchase Agreement for a complete description of the rights and obligations
of, and limitations and restrictions on, the Company and the Holder of this
Debenture. The terms and conditions of the Debenture noted hereinafter are
subject in every respect to the terms and conditions of the Purchase Agreement.
In the event of a conflict between the provisions of this Debenture and the
Purchase Agreement, the Purchase Agreement shall control. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Purchase Agreement.
FOR VALUE RECEIVED, the Company promises to pay to ______________________,
the registered holder hereof (the "Holder") the principal sum of
______________________ United States Dollars (U.S. $_______________), on
December 31, 1997, and to pay interest on the principal sum outstanding from
time to time semi-annually in arrears on the last business day of each semi-
annual period of each year commencing with 1996, i.e., December 31 and June 30
6
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("Interest Payment Dates"), after as well as before maturity and default and
after judgment, at the rate of eight percent (8%) per annum accruing from the
date of initial issuance. Payment of interest shall commence on the first such
business day to occur after the date hereof (and shall be prorated for such
period from the date of initial issuance) and shall continue on the first
business day of each succeeding semi-annual period until payment in full of the
principal sum has been made or duly provided for or the Debenture shall have
been fully converted into Common Stock of the Company as provided in Section 6.
All accrued and unpaid interest shall bear interest at the same rate at the due
date of the interest payment until paid but shall not be subject to conversion.
December 1 and June 1 of each year shall serve as the record date (the "Record
Date") for determining ownership of this Debenture with respect to payments of
interest to be made on the following Interest Payment Date, unless the Debenture
has previously been converted, in which case, and as to the converted Debenture
only, the Record Date shall be the date of conversion. The interest so payable
on any Interest Payment Date will, as provided in the Purchase Agreement, be
paid to the person in whose name this Debenture (or one or more predecessor
Debentures) is registered on the records of the Company regarding registration
and transfers of the Debentures (the "Debenture Register") at the Record Date
for such Interest Payment Date; provided, however, that the Company's obligation
to a transferee of this Debenture arises only if such transfer, sale or other
disposition is made in accordance with the terms and conditions of the Purchase
Agreement. The principal of, and interest on, this Debenture are payable in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public or private debts, at the address last
appearing on the Debenture Register of the Company as designated in writing by
the Holder from time to time. The Company will pay interest on this Debenture
by sending a check for such interest due, less any amounts required by law to be
deducted, to the registered holder of this Debenture and addressed to such
Holder at the last address appearing on the Debenture Register. The forwarding
of such check shall constitute a payment of interest hereunder and shall satisfy
and discharge the liability for interest on this Debenture to the extent of the
sum represented by such check plus any amounts so deducted unless such check is
not paid at par.
This Debenture is subject to the following additional provisions:
1. The Debentures are issuable in denominations of One Thousand United
States Dollars (U.S. $1,000) and integral multiples thereof. As provided in the
Purchase Agreement, the Debentures are exchangeable for an equal aggregate
principal amount of Debentures of different authorized denominations, as
requested by the Holders surrendering the same. No service charge will be made
for such registration of transfer or exchange; however, the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection with the transfer or exchange of this Debenture.
2. The Company shall be entitled to withhold from all payments of
principal of, and interest on, this Debenture any amounts required to be
withheld under the applicable provisions of the United States income tax laws
or other applicable laws at the time of such payments.
3. This Debenture has been issued subject to investment representations of
the original purchaser hereof and may be transferred or exchanged only as
provided in the Purchase Agreement. Prior to due presentment for transfer of
this Debenture, the Company and any agent
7
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of the Company may treat the person in whose name this Debenture is duly
registered on the Company's Debenture Register as the owner hereof for the
purpose of receiving payment as herein provided and for all other purposes,
whether or not this Debenture be overdue, and neither the Company nor any such
agent shall be affected by notice to the contrary.
4. If an Event of Default occurs and is continuing, the Holders of not less
than twenty-five percent (25%) in principal amount of the Debentures outstanding
may declare the principal of all the Debentures to be immediately due and
payable in the manner and to the extent provided in the Purchase Agreement, and
such declarations may be in certain events rescinded, in the manner and with the
effect provided in the Purchase Agreement.
5. The indebtedness evidenced by this Debenture is, to the extent provided
in the Purchase Agreement, subordinate and subject in right of payment to the
prior payment or satisfaction of Bank Indebtedness, and this Debenture is issued
subject to the provisions of the Purchase Agreement with respect thereto. Each
Holder of this Debenture, by accepting the same, agrees to and shall be bound by
such provisions.
6. Subject to the provisions of the Purchase Agreement, the Holder of this
Debenture is entitled, at its option, at any time until maturity hereof to
convert the principal amount of this Debenture or any portion of the principal
amount hereof (and any accrued and unpaid interest) which is at least Twenty-
Five Thousand United States Dollars (U.S. $25,000) or, if at the time of such
election to convert the aggregate principal amount of all Debentures registered
to the Holder is less than Twenty-Five Thousand United States Dollars (U.S.
$25,000), then the whole amount thereof, into shares of Common Stock of the
Company at a conversion price of One United States Dollar and Twenty-Five Cents
(U.S. $1.25) (the "Initial Conversion Price"). However, if at any time the
closing bid price of the Company's Common Stock as reported on the Nasdaq
National Market for fifteen (15) consecutive trading days is less than U.S.
$0.65, then the conversion price shall be U.S. $0.65. This Debenture may be
converted upon surrender of this Debenture to the Company at its office in
Portland, Oregon, with the form of conversion notice attached hereto as Exhibit
A executed by the Holder of this Debenture evidencing such Holder's intention to
convert this Debenture or a specified portion (as above provided) hereof, and
accompanied, if required by the Company, by proper assignment hereof in blank.
As provided in the Purchase Agreement, the conversion price is subject to
adjustment in certain events. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but an adjustment in cash will
be made for any fractional interest as provided in the Purchase Agreement.
The foregoing notwithstanding, the Company shall have the right, in its
sole discretion to require conversion of the outstanding Debentures at any time
after six months following the Final Closing, until such Debentures have been
fully repaid.
7. Neither the Debentures nor the Common Stock issuable upon conversion
thereof have been registered under the Securities Act nor qualified for issuance
under any state securities laws. The offering of the securities has been made
pursuant to Regulation S promulgated under the Securities Act and has been made
in reliance upon the specific representations and warranties
8
<PAGE>
of the initial investors of the Debentures regarding compliance with the
provisions and conditions of Regulation S.
8. The Purchase Agreement permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debentures under
the Purchase Agreement at any time by the Company with the consent of the
Holders of sixty-six and two-thirds percent (66-2/3%) in aggregate principal
amount of the Debentures at the time outstanding. The Purchase Agreement also
contains provision permitting the Holders of a majority of the aggregate
principal amount of the Debentures at the time outstanding, on behalf of the
Holders of all the Debentures, to waive compliance by the Company with certain
provisions of the Purchase Agreement and certain past defaults under the
Purchase Agreement and their consequences. Any such consent or waiver shall be
conclusive and binding upon all Holders and upon all future Holders of this
Debenture and of any Debenture issued upon registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Debenture.
9. Except with respect to the rights of the holders of Bank Indebtedness
set forth in this Debenture and in the Purchase Agreement, no reference herein
to the Purchase Agreement and no provision of this Debenture or of the Purchase
Agreement shall alter or impair the obligation of the Company which is absolute
and unconditional, to pay the principal of, and interest on, this Debenture at
the time, place and rate, and in the coin or currency, herein prescribed. This
Debenture and all other Debentures now or hereafter issued under the Purchase
Agreement are direct obligations of the Company.
10. No recourse shall be had for the payment of the principal of, or the
interest on, this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Purchase Agreement or any
Purchase Agreement supplemental thereto, against any stockholder, officer or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration of the issue
hereof, expressly waived and released.
11. The Holder of this Debenture, by acceptance hereof, agrees that this
Debenture is being acquired for investment and that such Holder will not offer,
sell or otherwise dispose of this Debenture except under circumstances which
will not result in a violation of the Securities Act or any applicable United
States state securities law ("Blue Sky law"). Any Common Stock issuable upon
conversion thereof shall bear a legend in substantially the form as set forth on
the first page of this Debenture.
12. With respect to any offer, sale or other disposition of this Debenture
or the shares of Common Stock issuable upon conversion thereof, the Holder
hereof and each subsequent Holder of this Debenture (or the shares of Common
Stock issuable upon conversion thereof) agrees to give written notice to the
Company prior thereto, describing briefly the manner thereof, together with a
written opinion of such Holder's counsel, if requested by the Company, to the
effect that such offer, sale or other disposition may be effected without
registration or
9
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qualification of this Debenture (or the shares of Common Stock issuable upon
conversion thereof) under the Securities Act or any applicable state Blue Sky
law then in effect, and indicating whether or not under any of said laws,
certificates for this Debenture (or the shares of Common Stock issuable upon
conversion thereof) to be sold or otherwise disposed of require any restrictive
legend as to applicable restrictions on transferability in order to insure
compliance therewith. Upon receiving such written notice and a reasonably
satisfactory opinion, if so requested, the Company shall notify such Holder that
such Holder may sell or otherwise dispose of this Debenture (or the shares of
Common Stock issuable upon conversion thereof), all in accordance with the terms
of the notice delivered to the Company. If a determination has been made
pursuant to this paragraph 12 that the opinion of counsel for the Holder is not
reasonably satisfactory to the Company, the Company shall so notify the Holder
promptly after such determination has been made.
This Debenture shall be governed by and construed in accordance with the
laws of the State of Oregon.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer thereunto duly authorized.
OXIS INTERNATIONAL, INC.
BY:________________________________
Name:
Title:
Dated: _____________, 1995.
10
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EXHIBIT A
NOTICE OF CONVERSION
TO: OXIS INTERNATIONAL, INC.
The undersigned Holder of this Debenture hereby irrevocably elects to
convert this Debenture, or portion hereof (which is at least U.S. $25,000,
unless the undersigned holds Debentures aggregating less than U.S. $25,000, in
which event, the amount converted shall be the entire amount of principal of
such Debentures) below designated, into shares of Common Stock of OXIS
International, Inc. in accordance with the terms of the Subscription and
Purchase Agreement dated December 20, 1995, and directs that the shares issuable
and deliverable upon such conversion, together with any check (or such other
form of payment acceptable to OXIS International, Inc.) in payment for
fractional shares and any Debentures representing any unconverted principal
amount hereof, be issued and delivered to the undersigned unless a different
name has been indicated below. If shares are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes,
if any, payable with respect thereto.
Date: _________________, 199___
________________________________________ ____________________________________
Principal Amount to be Converted Signature of Holder
THE DEBENTURES ARE TRANSFERABLE ONLY AS PROVIDED IN THE PURCHASE AGREEMENT.
Provide the following information if shares of Common Stock and/or
Debentures are to be issued otherwise than to the Holder. Please print name and
address (including zip code) of such other person:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_________________________________________
Social Security or Other Taxpayer
Identifying Number
11
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EXHIBIT 99.3
------------
THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS SPECIFIED IN SECTION 11 HEREOF. NEITHER THE RIGHTS REPRESENTED BY THIS
WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF (COLLECTIVELY, THE
"SECURITIES") HAVE BEEN REGISTERED FOR OFFER OR SALE UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE LAW,
AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES, OR TO OR FOR THE
ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS, UNTIL 40 DAYS AFTER THE LATER
OF THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, NOR MAY THE
WARRANT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON, EXCEPT IN EITHER
CASE IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT. THE RESALE
SAFE HARBOR OF REGULATION S DOES NOT PERMIT THE RESALE OF THE SECURITIES IN
THE UNITED STATES OR TO A U.S. PERSON. OFFERS AND SALES MAY BE MADE IN THE
UNITED STATES OR TO U.S. PERSONS ONLY PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER SUCH ACT. THE SECURITIES MAY NOT BE SOLD OR
OFFERED FOR SALE IN WHOLE OR IN PART NOR THE WARRANT EXERCISED EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2 AND SECTION 11 HEREOF.
OXIS INTERNATIONAL, INC.
WARRANT TO PURCHASE COMMON STOCK
OXIS International, Inc., a Delaware corporation (the "Company"), hereby
certifies that, for value received, __________________ ("Investor"), the
registered holder hereof, or its registered assigns, is entitled, subject to the
terms set forth below, to purchase from the Company upon surrender of this
Warrant, at any time or times on or after the date hereof but not after 5:00
P.M., Portland time, on the Expiration Date (as defined herein),
_____________________ (_________) fully paid nonassessable shares (the "Warrant
Shares") of Common Stock (as defined herein) of the Company (as adjusted from
time to time as provided in this Warrant) at an initial purchase price of U.S.
$2.00 per share in lawful money of the United States. The number of Warrant
Shares purchasable by Investor as set forth in the immediately preceding
sentence was determined by calculating 20% of the shares of Common Stock into
which the Debenture dated the date hereof purchased by Investor was convertible
on the date hereof. If the number of shares into which the principal of such
Debenture is convertible is increased (the "Debenture Conversion Shares") then
the number of Warrant Shares purchasable hereunder shall be increased so that
such Warrant Shares equal 20% of the Debenture Conversion Shares. This Warrant
is issued pursuant to that certain Subscription and Purchase Agreement
("Purchase Agreement") dated ________________________ between the Company and
the Investor (and other investors).
12
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Section 1. (a) Definitions. The following words and terms as used in
-----------
this Warrant shall have the following meanings:
"Common Stock" means (a) the Company's common stock and (b) any
------------
capital stock into which such "Common Stock" shall have been changed or any
capital stock resulting from a reclassification of such "Common Stock."
"Convertible Securities" mean any securities issued by the Company
----------------------
which are convertible into or exchangeable for, directly or indirectly, shares
of Common Stock.
"Expiration Date" means November 1, 1996.
---------------
"Warrant Exercise Price" shall initially be U.S. $2.00 per share and
----------------------
shall be adjusted and readjusted from time to time as provided in this Warrant.
(b) Other Definitional Provisions. (i) Except as otherwise
-----------------------------
specified herein, all references herein (A) to any person other than the
Company, shall be deemed to include such person's successors and assigns, (B) to
the Company shall be deemed to include the Company's successors and (C) to any
applicable law defined or referred to herein, shall be deemed references to such
applicable law as the same may have been or may be amended or supplemented from
time to time.
(ii) When used in this Warrant, the words "herein," "hereof," and
"hereunder," and words of similar import, shall refer to this Warrant as a whole
and not to any provision of this Warrant, and the words "Section," "Schedule,"
and "Exhibit" shall refer to Sections of, and Schedules and Exhibits to, this
Warrant unless otherwise specified.
(iii) Whenever the context so requires the neuter gender includes the
masculine or feminine, and the singular number includes the plural, and vice
versa.
Section 2. Exercise of Warrant. (a) Subject to the terms and conditions
-------------------
hereof, this Warrant may be exercised, in whole or in part, at any time during
normal business hours on or after the opening of business on the date hereof and
prior to the close of business on the Expiration Date. The rights represented
by this Warrant may be exercised by the holder hereof then registered on the
books of the Company, in whole or from time to time in part (except that this
Warrant shall not be exercisable as to a fractional share) by (i) delivery of a
written notice, in the form of the Subscription Notice attached as Exhibit A
hereto, of such holder's election to exercise this Warrant, which notice shall
specify the number of Warrant Shares to be purchased, (ii) payment to the
Company of an amount equal to the Warrant Exercise Price multiplied by the
number of Warrant Shares as to which the Warrant is being exercised (plus any
applicable issue or transfer taxes) in cash or by certified or official bank
check, for the number of Warrant Shares as to which this Warrant shall have been
exercised, and (iii) the surrender of this Warrant, properly endorsed, at the
principal office of the Company in Portland, Oregon (or at such other agency or
office of the Company as the Company may designate by notice to the holder
hereof); provided, that if such Warrant Shares are to be issued in any name
other than that of the
13
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registered holder of this Warrant, such issuance shall be deemed a transfer and
the provisions of Section 11 shall be applicable. In addition, exercise of the
Warrant is expressly conditioned upon the delivery to the Company by the holder
thereof of either: (x) written certification that it is not a "U.S. person" (as
defined in Regulation S promulgated under the Securities Act of 1933, as amended
(the "Securities Act")) and that the Warrant is not being exercised on behalf of
a U.S. person; or (y) a written opinion of counsel to the effect that the
Warrant and the Warrant Shares have been registered under the Securities Act or
are exempt from registration thereunder. THE WARRANT MAY NOT BE EXERCISED
WITHIN THE UNITED STATES AND THE WARRANT SHARES MAY NOT BE DELIVERED WITHIN THE
UNITED STATES UPON EXERCISE OF THE WARRANT, OTHER THAN IN OFFERINGS DEEMED TO
MEET THE DEFINITION OF AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 902 OF
REGULATION S, UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. EXERCISE OF THE WARRANT IS FULLY SUBJECT TO ALL
PROCEDURES ESTABLISHED BY THE COMPANY IN CONNECTION WITH THE FOREGOING SENTENCE
AND THE COMPANY WILL NOT HONOR ANY EXERCISE IF THE REQUIREMENTS OF THE FOREGOING
SENTENCE AND RELATED PROCEDURES ESTABLISHED BY THE COMPANY ARE NOT FULFILLED.
In the event of any exercise of the rights represented by this Warrant in
compliance with this Section 2(a), a certificate or certificates for the Warrant
Shares so purchased, registered in the name of, or as directed by, the holder,
shall be delivered to, or as directed by such holder within a reasonable time,
not exceeding 15 days, after such rights shall have been so exercised.
(b) Unless the rights represented by this Warrant shall have expired
or have been fully exercised, the Company shall issue a new Warrant identical in
all respects to the Warrant exercised except (x) it shall represent rights to
purchase the number of Warrant Shares purchasable immediately prior to such
exercise under the Warrant exercised, less the number of Warrant Shares with
respect to which such Warrant was exercised, and (y) the holder thereof shall be
deemed to have become the holder of record of such Warrant Shares immediately
prior to the close of business on the date on which the Warrant was surrendered
and payment of the amount due in respect of such exercise and any applicable
taxes was made, irrespective of the date of delivery of such share certificate,
except that, if the date of such surrender and payment is a date when the stock
transfer books of the Company are properly closed, such person shall be deemed
to have become the holder of such Warrant Shares at the opening of business on
the next succeeding date on which the stock transfer books are open.
Section 3. Covenants as to Common Stock. The Company covenants and agrees
----------------------------
that all Warrant Shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable. The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized and reserved a sufficient number
of shares of Common Stock to provide for the exercise of the rights then
represented by this Warrant and that the par value of said shares will at all
times be less than or equal to the applicable Warrant Exercise Price.
14
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Section 4. Adjustment of Warrant Exercise Price Upon Stock Splits,
-------------------------------------------------------
Dividends, Distributions and Combinations; and Adjustment of Number of Shares.
- -----------------------------------------------------------------------------
(a) In case the Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares or issue a stock dividend or make a
distribution with respect to outstanding shares of Common Stock or Convertible
Securities payable in Common Stock or in Convertible Securities, the Warrant
Exercise Price in effect immediately prior to such subdivision or stock dividend
or distribution shall be proportionately reduced (treating for such purpose any
such shares of Convertible Securities outstanding or payable as being the number
of shares of Common Stock issuable upon their conversion) and conversely, in
case the outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Warrant Exercise Price in effect
immediately prior to such combination shall be proportionately increased in each
case by multiplying the then effective Warrant Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such action and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such action, and
the product so obtained shall thereafter be the Warrant Exercise Price.
(b) Upon each adjustment of the Warrant Exercise Price as provided
above in this Section 4, the registered holder of this Warrant shall thereafter
be entitled to purchase, at the Warrant Exercise Price resulting from such
adjustment, the number of shares obtained by multiplying the Warrant Exercise
Price in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Warrant Exercise Price after such adjustment.
Section 5. Notice of Adjustment of Warrant Exercise Price. Upon any
----------------------------------------------
adjustment of the Warrant Exercise Price, then the Company shall give notice
thereof to the registered holder of this Warrant, which notice shall state the
Warrant Exercise Price in effect after such adjustment and the increase, or
decrease, if any, in the number of shares purchasable at the Warrant Exercise
Price upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
Section 6. Computation of Adjustments. Upon each computation of an
--------------------------
adjustment in the Warrant Exercise Price and the number of shares which may be
subscribed for and purchased upon exercise of this Warrant, the Warrant Exercise
Price shall be computed to the nearest cent (i.e., fractions of .5 of a cent, or
greater, shall be rounded to the next highest cent) and the number of shares
which may be subscribed for and purchased upon exercise of this Warrant shall be
calculated to the nearest whole share (i.e., fractions of less than one half of
a share shall be disregarded and fractions of one half of a share, or greater,
shall be treated as being a whole share).
Section 7. No Change in Warrant Terms on Adjustment. Irrespective of any
----------------------------------------
adjustment in the Warrant Exercise Price or the number of shares of Common
Stock issuable upon exercise hereof, this Warrant, whether theretofore or
thereafter issued or reissued, may continue to express the same price and number
of shares as are stated herein and the Warrant Exercise Price and such number of
shares specified herein shall be deemed to have been so adjusted.
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<PAGE>
Section 8. Taxes. The Company shall not be required to pay any tax or
-----
taxes attributable to the initial issuance of the Warrant Shares or any
transfer involved in the issue or delivery of any certificates for Warrant
Shares of Common Stock in a name other than that of the registered holder hereof
or upon any transfer of this Warrant.
Section 9. Warrant Holder Not Deemed a Shareholder. No holder, as such,
---------------------------------------
of this Warrant shall be entitled to vote or receive dividends or be deemed
the holder of shares of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote,
give or withhold consent to any corporate action (whether any reorganization,
issue of stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance to the holder of this Warrant of the
Warrant Shares which he is then entitled to receive upon the due exercise of
this Warrant.
Section 10. No Limitation on Corporate Action. No provisions of this
---------------------------------
Warrant and no right or option granted or conferred hereunder shall in any way
limit, affect or abridge the exercise by the Company of any of its corporate
rights or powers to recapitalize, amend its Certificate of Incorporation,
reorganize, consolidate or merge with or into another corporation, or to
transfer all or any part of its property or assets, or the exercise of any other
of its corporate rights and powers.
Section 11. Transfer; Opinions of Counsel; Restrictive Legends.
--------------------------------------------------
(a) Prior to any sale, transfer or other disposition of this Warrant
or the Warrant Shares, the holder thereof will give ten (10) days' notice to the
Company of such holder's intention to effect such transfer. Each such notice
shall describe the manner and circumstances of the proposed transfer and, if
such transfer is not registered under the Securities Act (below defined), shall
be accompanied by an opinion, addressed to the Company and reasonably
satisfactory in form and substance to it, of counsel (reasonably satisfactory to
the Company) for such holder, stating whether, in the opinion of such counsel,
such transfer will be a transaction exempt from registration under the
Securities Act.
(b) If such sale, transfer or other disposition may in the opinion of
such counsel be effected without registration under the Securities Act, such
holder shall thereupon be entitled to the terms of the notice delivered by such
holder to the Company. If in the opinion of such counsel such transfer may not
be effected without registration under the Securities Act, such holder shall not
be entitled to so transfer this Warrant, or the Warrant Shares unless the
Company shall have filed a registration statement relating to such proposed
transfer and such registration statement has become effective under the
Securities Act.
(c) Subject to the provisions of this Section 11, the holder may at
any time transfer this Warrant or the Warrant Shares to an affiliate of the
holder.
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<PAGE>
(d) The terms of any registration rights agreement entered into by
and between the Company and the holder hereof, to the extent applicable, shall
be binding upon and inure to the benefit of any transferee of this Warrant (or
unexercised portion hereof) or Warrant Shares issued upon the exercise of this
Warrant, and shall cease to be binding upon or benefit the transferor.
(e) Any Warrant Shares issued pursuant to the exercise of this
Warrant may bear one or more of the legends in similar form to the legend set
forth on this Warrant.
Section 12. Exchange of Warrant. This Warrant is exchangeable upon the
-------------------
surrender hereof by the holder hereof at such office or agency of the Company,
for new Warrants of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for
and purchased hereunder from time to time after giving effect to all the
provisions hereof, each of such new Warrants to represent the right to subscribe
for and purchase such number of shares as shall be designated by said holder
hereof at the time of such surrender.
Section 13. Lost, Stolen, Mutilated or Destroyed Warrant. If this
--------------------------------------------
Warrant is lost, stolen, mutilated or destroyed, the Company shall, on such
terms as to indemnity or otherwise as it may in its discretion impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 14. Representation of Holder. The holder of this Warrant, by the
------------------------
acceptance hereof, represents that it is acquiring this Warrant for its own
account for investment and not with a view to, or sale in connection with, any
distribution hereof or of any of the shares of Common Stock or other securities
issuable upon the exercise thereof, nor with any present intention of
distributing any of the same.
Section 15. Notice. All notices and other communications under this
------
Warrant shall (a) be in writing (which shall include communications by
telecopy), (b) be (i) sent by registered or certified mail, postage prepaid,
return receipt requested, by telecopier, or (ii) delivered by hand, (c) be given
at the following respective addresses and telecopier numbers and to the
attention of the following persons:
(i) if to the Company, to it at:
OXIS International, Inc.
Corporate Headquarters
6040 N. Cutter Circle, Suite 317
Portland, Oregon 97217-3935
Attention: Ray R. Rogers, Chairman
Telephone: (503) 283-3911
Telecopier: (503) 283-4058
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<PAGE>
with a copy to:
Jackson, Tufts, Cole & Black
60 South Market Street
San Jose, CA 95113
Attention: Richard Scudellari, Esq.
Telephone: (408) 998-1952
Telecopier: (408) 998-4889
(ii) if to Investor, to it at the address set forth below Investor's
signature on the signature page hereof.
or at such other address or telecopier number or to the attention of such other
person as the party to whom such information pertains may hereafter specify for
the purpose in a notice to the other specifically captioned "Notice of Change of
Address", and (d) be effective or deemed delivered or furnished (i) if given by
mail, on the fifth Business Day after such communication is deposited in the
mail, addressed as above provided, (ii) if given by telecopier, when such
communication is transmitted to the appropriate number determined as above
provided in this Section and the appropriate answer back is received or receipt
is otherwise acknowledged, and (iii) if given by hand delivery, when left at the
address of the addressee addressed as above provided, except that notices of a
change of address, telecopier or telephone number, shall not be deemed
furnished, until received.
Section 16. Miscellaneous. This Warrant and any term hereof may be
-------------
changed, waived, discharged, or terminated only by an instrument in writing
signed by the party or holder hereof against which enforcement of such change,
waiver, discharge or termination is sought. The headings in this Warrant are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Warrant shall be governed by and interpreted under the
laws of the State of Oregon.
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<PAGE>
Section 17. Date. The date of this Warrant is _________________________.
----
This Warrant, in all events, shall be wholly void and of no effect after the
close of business on the Expiration Date, except that notwithstanding any other
provisions hereof, the provisions of Section 11 shall continue in full force and
effect after such date as to any Warrant Shares or other securities issued upon
the exercise of this Warrant.
OXIS INTERNATIONAL, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
ACCEPTED.
INVESTOR:
BY:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
__________________________________
__________________________________
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<PAGE>
EXHIBIT A TO WARRANT
--------------------
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH REGISTERED HOLDER DESIRES TO
EXERCISE THIS WARRANT
OXIS INTERNATIONAL, INC.
The undersigned hereby exercises the right to purchase Warrant Shares
covered by this Warrant according to the conditions thereof and herewith makes
payment of U.S. $_______________, the aggregate Warrant Exercise Price of such
Warrant Shares in full.
The undersigned further certifies that either: (i) it is not a "U.S.
person" (as defined in Regulation S promulgated under the Securities Act of
1933, as amended (the "Securities Act")) and that the Warrant is not being
exercised on behalf of a U.S. person; or (ii) the undersigned is providing to
the Company herewith a written opinion of counsel to the effect that the Warrant
and the Warrant Shares have been registered under the Securities Act or are
exempt from registration thereunder.
INVESTOR:
By: ______________________________
Name:
Title:
Address: ___________________________
____________________________________
____________________________________
____________________________________
Number of Warrant Shares Being Purchased:
____________________________________
Dated: ______________, 199___.
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