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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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) May 7, 1998
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OXIS INTERNATIONAL, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
Delaware 0-8092 94-1620407
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(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NUMBER)
6040 N. Cutter Circle, Suite 317 Portland, OR 97217-3935
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Registrant's telephone number, including area code. (503) 283-3911
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
Total number of sequentially
numbered pages:
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Exhibit Index at page: 5
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ITEM 5. OTHER EVENTS
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(a) Between April 28, 1998 and May 7, 1998, OXIS International, Inc. (the
"Company" or "OXIS") entered into subscription agreements for a private
placement of units consisting of one share of common stock (the "Common
Shares"), plus one warrant to purchase a share of common stock. The Common
Shares were priced at the closing price of OXIS common stock the day prior to
the signing of the subscription agreements. The warrants issued in connection
with the sale of the Common Shares have an exercise price equal to 120% of the
price of the Common Shares. The investors are all institutional investors from
the U.S. and Europe. The total gross proceeds from the private placement were
$8,958,000, including $777,000 in conversion of notes and accrued interest, and
the remainder in cash.
The private placement is expected to be completed in two closings. In the
first closing 6,936,142 Common Shares and warrants to purchase an equal number
of shares of common stock were issued in exchange for gross proceeds of
$5,716,000 in cash and conversion of $543,000 of short-term notes and accrued
interest payable. The second closing, for which commitments have been received
and funds relating thereto have been placed in escrow is expected to yield gross
proceeds of $2,465,000 in cash and conversion of $234,000 of short-term notes
and accrued interest payable. The release to the Company of the proceeds from
the second closing is subject to approval by the shareholders of an increase in
the number of authorized common shares. This proposal will be considered by the
shareholders at the Company's annual meeting scheduled to be held in July 1998.
A copy of the press release with respect to the sale of common stock and
warrants is attached as an exhibit to this report. The forms of Common Stock and
Warrant Subscription Agreement, Warrant to Purchase Common Stock, Registration
Rights Agreement and Escrow Agreement are substantially as attached as exhibits
to this report.
All securities mentioned in this report will not be or have not been
registered under the Securities Act of 1933 and may not be offered or sold in
the United States absent registration or an applicable exemption from such
registration requirements.
Certain of the matters discussed in this report and the attached press
release are forward-looking statements that involve risks and uncertainties,
including the Company's ability to complete the second tranche of private
financing, timely development and market acceptance of new products, the impact
of competitive products and pricing, economic conditions, and other risks
detailed from time to time in the Company's SEC reports. These factors could
cause actual results to differ materially from those described in any forward-
looking statements.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
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(c) Exhibits
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Exhibit 99.1 Press Release, dated May 6, 1998.
Exhibit 99.2 Form of Common Stock and Warrant Subscription Agreement
Exhibit 99.3 Form of Warrant to Purchase Common Stock
Exhibit 99.4 Form of Registration Rights Agreement
Exhibit 99.5 Form of Escrow Agreement.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
July 6, 1998 OXIS INTERNATIONAL, INC.
(Registrant)
s/ Jon S. Pitcher
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Chief Financial Officer and
Vice President
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EXHIBIT INDEX
Page
Exhibit Number
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Exhibit 99.1 Press Release, dated May 6, 1998 6
Exhibit 99.2 Form of Common Stock and Warrant Subscription Agreement
Exhibit 99.3 Form of Warrant to Purchase Common Stock
Exhibit 99.4 Form of Registration Rights Agreement
Exhibit 99.5 Form of Escrow Agreement
5
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Exhibit 99.1
Press Release, dated May 6, 1998.
OXIS INTERNATIONAL ANNOUNCES CLOSING OF $6.3 MILLION IN FIRST
TRANCHE OF PRIVATE INSTITUTIONAL FINANCING
Expectation Is To Raise Approximately $8 Million
PORTLAND, Ore.-- May 6, 1998 -- OXIS International, Inc. (NASDAQ: OXIS, Nouveau
Marche OXIS), a leading developer of new products and technologies to diagnose,
treat and prevent diseases caused by oxidative stress, announced today the
closing of the first tranche of a private equity financing. OXIS expects to
raise approximately eight million U.S. dollars. In the financing, the Company is
issuing units consisting of one share of common stock, plus one warrant to
purchase a share of common stock. The units were priced at the closing price of
OXIS common stock the day prior to the signing of the subscription agreements.
The warrants have an exercise price equal to 120% of the unit prices. The
investors are all institutional investors from the U.S. and Europe. Major
investors include Credit Suisse Pharma Fund, Banc Pictet & Cie and Swiss Re
Investors in Europe and SR One Limited, the U.S venture capital arm of
SmithKline Beecham PLC. Credit Lyonnais is acting as the placement agent.
The closing of the first tranche resulted in gross proceeds to the Company of
$6.3 million. The second tranche, for which commitments from the investors have
already been received and funds relating thereto have been placed in escrow, is
expected to yield gross proceeds to the Company of approximately $1.6 million.
The funds from the second tranche are expected to be released to the Company
following the Company's annual meeting scheduled to be held in July, and the
satisfaction of certain other conditions.
"Completion of this financing is an extremely important step to the Company,"
stated Ray R. Rogers, chairman of OXIS. "The majority of these funds will be
used to provide support for our therapeutic Company, OXIS Therapeutics, Inc., to
continue the development of our lead molecule, BXT-51072, for ulcerative colitis
and other indications. In addition, the funds will be used in connection with
the development of our oxidative stress and wellness assessment business,
through OXIS Health Products Inc., and will support the early stages of our
planned entry into the nutraceutical and dietary supplement markets."
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OXIS International, Inc. is a drug discovery and diagnostics company focused on
the development of novel therapeutic molecules, diagnostic products and
supportive technologies to diagnose, treat and prevent diseases associated with
damage from free radicals and reactive oxygen species (ROS). The Company is
currently testing its lead molecule from a series of mimics of the natural
antioxidant enzyme, glutathione peroxidase, in a Phase II trial for ulcerative
colitis. Through its catalog, the Company also offers assays, spin traps,
antioxidants and fine chemicals to basic and clinical researchers working in the
oxidative stress area.
All securities mentioned in this press release will not be or have not been
registered under the Securities Act of 1933 and may not be offered or sold in
the United States absent registration or an applicable exemption from such
registration requirements.
Certain of the matters discussed in this press release are forward-looking
statements that involve risks and uncertainties, including the Company's ability
to complete the second tranche of private financing, timely development and
market acceptance of new products, the impact of competitive products and
pricing, economic conditions, and other risks detailed from time to time in the
Company's SEC reports. These factors could cause actual results to differ
materially from those described in any forward-looking statements.
OXIS has headquarters in Portland, Oregon, with research facilities outside
Paris, France. Visit OXIS International on the World Wide Web at
http://www.oxis.com.
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EXHIBIT 99.2
COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT
This COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT, dated as of April
___, 1998 (this "Agreement"), is entered into by and between OXIS International
Inc., a Delaware corporation (the "Company") and the investor set forth on the
signature page hereto ("Investor").
RECITALS
WHEREAS, Investor wishes to invest $_______ in the Company, and in doing so
the Investor wishes to subscribe for and purchase, and the Company wishes to
issue and sell, to Investor shares (the "Shares") of common stock, of the
Company ("Common Stock") in an amount and on the terms set forth herein; and
WHEREAS, both Investor and the Company desire that the Company issue a
warrant to Investor for the future purchase of shares of Common Stock (the
"Warrant") in conjunction with the purchase of the Shares in the amounts and on
the terms set forth herein; and
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. Subscription for Common Stock and Warrant.
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A. The Common Stock and the Warrant. The Company has authorized the
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issuance and sale pursuant to the terms of this Agreement of the Shares and the
issuance of Warrants to Investor substantially in the form attached hereto as
Exhibit A. Subject to the terms and conditions of this Agreement, Investor
hereby irrevocably subscribes for and agrees to purchase the number of Shares
provided for in Section I.B below for the price equal to ________ which equals
the closing price of the Company's Common Stock on the Nasdaq National Market on
the date prior to the date hereof (the "Per Share Price") and the Warrants as
provided for herein. The exercise price of the Warrants shall be 120% of the
Per Share Price. Investor shall not be obligated to purchase any of the Shares
unless the conditions set forth in Article II hereof shall have been satisfied
or waived by Investor on or prior to the Initial Closing Date (as defined
below). The Company shall not be obligated to sell any of the Shares to
Investor or issue the Warrants to Investor unless the conditions set forth in
Article III hereof shall have been satisfied or waived by the Company or prior
to the Initial Closing Date.
B. The consummation of the transactions contemplated by this Agreement
shall take place at two closings ("Closings") as follows:
(1) subject to the terms and conditions of this Agreement and on the basis
of the representations and warranties herein set forth, the Company will sell to
Investor, and Investor will purchase from the Company, a number of Shares
determined by dividing the
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amount of the Investor's investment (the "Purchase Price") by the Per Share
Price, provided that no fractional shares shall be issued by the Company. The
Purchase Price shall be payable by wire transfer of immediately available funds
to such account or accounts as to which the Company may notify Investor. The
Investor will deliver to the Company US$_____ at the Initial Closing, as defined
below, and US$_____ at the Second Closing, in payment for the Shares and
Warrants as contemplated by this Section I.
(2) At the initial Closing ("Initial Closing") (or as soon as practicable
thereafter), subject to the terms and conditions of this Agreement and on the
basis of the representations and warranties herein set forth, the Company will
deliver to, or at the direction of, Investor or a representative thereof, a
certificate registered in the name of Investor representing _________ Shares to
be purchased by Investor and a Warrant for the purchase of _______ Shares,
against payment of the Purchase Price by Investor as contemplated by subsection
(1) above. The Initial Closing will take place on April ___, 1998 at a location
to be designated by the Company.
(3) As soon as practicable after the Company's Certificate of Incorporation
has been amended to provide for an increase in the Company's authorized Common
Stock to 95,000,000 shares, there shall be a second closing ("Second Closing").
At the Second Closing (or as soon as practicable thereafter), subject to the
terms and conditions of this Agreement and on the basis of the representations
and warranties herein set forth, the Company will deliver to, or at the
direction of, Investor or a representative thereof, a certificate registered in
the name of Investor representing ______ Shares to be purchased by Investor and
a Warrant for the purchase of _______ Shares against payment of the Purchase
Price by Investor as contemplated by subsection (1) above. The Second Closing
will take place at a location designated by the Company. The dates of the
closings contemplated by subsections (2) and (3) hereof shall be referred to as
the "Closing Dates".
II. Conditions to the Obligations of Investor. The obligation of Investor to
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purchase Common Stock and the Warrants under this Agreement is subject to the
satisfaction at or prior to the Closing Dates of each of the following
conditions:
A. Accuracy of Representations and Warranties. All representations and
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warranties of the Company contained herein shall be true and correct in all
material respects on and as of each Closing Date as if made on and as of such
Closing Date.
B. Performance of Agreements; Regulatory Approvals.
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(1) The Company shall have performed all obligations and agreements, and
complied with all covenants and conditions contained in this Agreement to be
performed or complied with by it prior to or at the applicable Closing Date.
(2) The Company shall have executed and delivered the applicable Warrant.
(3) The Company shall have obtained all corporate authorizations and
approvals and all consents and approvals of regulatory bodies and authorities
necessary to issue
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the Shares and the applicable Warrant and to enter into and perform this
Agreement and such Warrant and to consummate the transactions contemplated
hereby and thereby; including, without limitation, with respect to the Second
Closing, the Company's stockholders shall have approved amending the Company's
Certificate of Incorporation to increase the Company's authorized Common Stock
from 50,000,000 to 95,000,000 shares.
If at or prior to each Closing all of the conditions of this Article II have not
been satisfied, Investor may elect to waive such conditions or to be relieved of
all further obligations hereunder.
III. Conditions to the Company's Obligations. The obligation of the Company to
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issue and sell the applicable Common Stock and the applicable Warrant under this
Agreement is subject to satisfaction at the each Closing Date of each of the
following conditions:
A. Accuracy of Representations and Warranties. All representations and
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warranties of Investor contained herein shall be true and correct in all
material respects on and as of the applicable Closing Date as if made on and as
of such Closing Date.
B. Performance of Agreements. Investor shall have performed all
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obligations and agreements, and complied with all covenants and conditions,
contained in this Agreement to be performed or complied with by it prior to or
at applicable Closing Date.
C. Payment of Purchase Price. Investor shall have delivered to the Company
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and the Company shall have received full payment of the applicable portion of
the Purchase Price.
D. Corporate Authorizations. The Company shall have obtained all corporate
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authorizations and approvals and all consents and approvals of regulatory bodies
and authorities necessary to issue the Shares and the Warrants and to enter into
and perform this Agreement and the Warrants and to consummate the transactions
contemplated hereby and thereby; including, without limitation, with respect to
the Second Closing, the Company's stockholders shall have approved amending the
Company's Certificate of Incorporation to increase the Company's authorized
Common Stock from 50,000,000 to 95,000,000 shares.
If at or prior to each Closing all of the conditions of this Article III have
not been satisfied, the Company may elect to waive such conditions or to be
relieved of all further obligations hereunder.
IV. Representations, Warranties and Covenants of the Company. Except as
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otherwise set forth herein, the Company represents, warrants and covenants to
Investor as of the date of this Agreement and as of each Closing Date as
follows:
A. Due Organization, Valid Existence and Authority of the Company. The
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Company has been duly incorporated and is validly existing and in good standing
under the laws of the State of Delaware. The Company has full right, power and
authority to carry on its business as conducted and as proposed to be conducted.
The Company has full right, power and authority to enter into this Agreement and
each Warrant and perform its obligations hereunder and thereunder.
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B. Authorization and Validity of Agreements. This Agreement and each
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Warrant have been duly authorized and constitute valid and binding obligations
of the Company enforceable against the Company in accordance with their terms,
except as affected by (i) bankruptcy or insolvency laws or (ii) equitable
principles or public policy.
C. No Conflict with Other Instruments; No Approvals Required Except as Have
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Been Obtained. The execution and delivery of this Agreement and each Warrant by
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the Company, and compliance by the Company with the terms and conditions hereof
and thereof, will not violate, with or without the giving of notice or the lapse
of time, or both, and will not conflict with, or require any consent or approval
under, the Certificate of Incorporation or By-laws of the Company (except for
such stockholder approval of the amendment of the Certificate of Incorporation,
contemplated herein).
D. Private Placement. Based, in part, on the representations and
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warranties of Investor set forth herein, the offer and sale of the Shares and
the Warrants by the Company are being accomplished in a transaction exempt from
registration under Section 5 of the Securities Act of 1933, as amended (the
"Securities Act'") and from registration or qualification under all applicable
state securities and "Blue-Sky" laws.
V. Representations of Investor. Investor hereby represents and warrants to the
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Company as of the date of this Agreement and as of each Closing Date as follows:
A. Due Organization, Good Standing and Authority of the Investor.
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Investor has full right, power and authority to enter into this Agreement and
perform its obligations hereunder.
B. Authorization and Validity of Agreements. This Agreement has been duly
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authorized, executed and delivered by Investor and, assuming the due
authorization, execution and delivery by the Company, constitutes a valid and
binding obligation of Investor enforceable against Investor in accordance with
its terms, except as affected by (i) bankruptcy or insolvency laws or (ii)
equitable principles or public policy.
C. No Conflict with Other Instruments; No Approvals Required Except as Have
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Been Obtained. The execution and delivery of this Agreement and the Warrants by
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Investor and compliance by Investor with the terms and conditions hereof and
thereof, will not violate, with or without the giving of notice or the lapse of
time, or both, or require any registration, qualification, approval or filing
under, any provision of law, statute, ordinance or regulation applicable to
Investor and will not conflict with, or require any consent or approval under,
or result in the breach or termination of any provision of, or constitute a
default under, or result in the acceleration of the performance of the
obligations of Investor under, or result in the creation of any claim, lien,
charge or encumbrance upon any of the properties, assets or businesses of
Investor pursuant to the charter document of Investor (if Investor is not a
natural person) or any order, judgment, decree, law, ordinance or regulation
applicable to the Investor, or any contract, instrument, agreement or
restriction to which Investor is a party or by which Investor or any of its
assets or properties is bound.
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D. Investor Awareness. Investor acknowledges, agrees and is aware that the
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Shares, the Warrants and the shares of Common Stock to be issued upon the
exercise thereof (the "Warrant Shares") have not been registered under the
Securities Act of 1933, as amended ("Securities Act"), or under the securities
laws of any other jurisdiction, including any state of the United States of
America. An offer or sale of the Shares, the Warrants or the Warrant Shares by
Investor in the absence of registration under such securities laws will require
the availability of an exemption thereunder. A restrictive legend in
substantially the form set forth in Section VI hereof shall be placed on the
certificates representing the Shares, the Warrants and the Warrant Shares and a
notation shall be made in the appropriate records of the Company indicating that
the securities representing the Shares, the Warrants and the Warrant Shares are
subject to restrictions on transfer.
E. Receipt of Information, Access to Information, Investment Intent.
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Investor acknowledges that it:
(1) has been furnished with sufficient information regarding the Company
and its prospects such that it has been able to understand and evaluate the
risks of a purchase of the Company's securities;
(2) has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the terms and conditions of the offering of
the Company's securities hereunder and other matters pertaining to an investment
therein, has been given the opportunity to obtain such additional information
necessary to evaluate the merits and risks of a purchase of the securities to
the extent the Company possesses such information, and has received all
documents and information that it has requested relating to an investment in the
securities;
(3) has carefully considered and has, to the extent Investor believes
such discussion necessary, discussed with its professional legal, financial and
tax advisors, the suitability of an investment in the securities;
(4) understands that the Shares, Warrants and Warrant Shares to be
received by Investor hereunder will be acquired for investment for Investor's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and that Investor has no present intention of
otherwise distributing the same. By executing this Agreement, Investor further
represents that Investor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to such securities, or any portion
thereof;
(5) is an investor in securities of companies in the development stage
and acknowledges that it is able to fend for itself, can bear the economic risk
of its investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Shares, Warrants and Warrant Shares; and
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(6) understands that the Shares, Warrants and Warrant Shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such Shares, Warrants and Warrant Shares may be resold without registration
under the Securities Act only in certain limited circumstances. In this
connection Investor represents that it is familiar with Securities and Exchange
Commission ("SEC") Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Securities Act.
F. Accredited Investor Status. Investor is an Accredited Investor as such
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term is defined in Regulation D under the Securities Act.
VI. Restrictions on Transfer. The Shares, the Warrants and the Warrant Shares
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shall not be transferable except upon the conditions specified in Article V.E
and in this Article VI, which are intended to insure compliance with the
provisions of the Securities Act in respect of the transfer of any of the
Shares, the Warrants or Warrant Shares.
A. Restrictive Legends. Each certificate representing the Shares, the
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Warrants or the Warrant Shares shall (unless otherwise permitted by the
provisions of this Article VI) be stamped or otherwise imprinted with a legend
in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER THE
SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION STATEMENT IS
IN EFFECT UNDER THE SECURITIES ACT AND ANY APPLICABLE SECURITIES
LAWS WITH RESPECT TO SUCH SECURITIES OR A WRITTEN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY IS PROVIDED TO THE
COMPANY TO THE EFFECT THAT NO REGISTRATIONS ARE REQUIRED UNDER
SUCH SECURITIES LAWS."
B. Notice of Proposed Transfers.
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(1) The holder of the Shares, the Warrants or Warrant Shares bearing a
restrictive legend set forth in Section VI.A above ("Restricted Securities"), by
acceptance thereof, agrees that, unless a registration statement is in effect
under the Securities Act and under applicable securities laws with respect to
such Restricted Securities, prior to any transfer or attempted transfer of such
Restricted Securities, such holder will give the Company (i) written notice
describing the proposed transfer of any Restricted Securities in reasonable
detail, (ii) such other information about the proposed transfer of such
Restricted Securities or the proposed transferee of such Restricted Securities
as the Company may reasonably request and (iii) an opinion of counsel (both
counsel and opinion reasonably satisfactory to the Company) to the effect that
the proposed transfer of such Restricted Securities may be effected without
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registration of such Restricted Securities under the Securities Act and under
other applicable securities laws.
(2) If the holder of the Restricted Securities delivers to the Company
the information required in Section VI.B(1) above (including without limitation
an opinion of counsel that subsequent transfers of such Restricted Securities
will not require registration or qualification under the Securities Act or under
other applicable securities law), the Company will or will cause the transfer
agent for such Restricted Securities promptly after notice of such contemplated
transfer to deliver new certificates for such Restricted Securities that do not
bear that section of the restrictive legend set forth in Section VI.A above
imposed by the Securities Act and under other applicable securities laws of any
other jurisdictions. If the foregoing conditions entitling the holder to effect
a proposed transfer of such Restricted Securities without registration under the
Securities Act and under other applicable securities laws have not been
satisfied, Investor shall not transfer the Restricted Securities, and the
Company will cause the transfer agent not to transfer such Restricted Securities
on its books or issue any certificates representing such Restricted Securities.
Any purported transfer of Restricted Securities not in accordance with
applicable securities laws shall be void.
(3) The restrictions imposed by this Agreement with respect to the
Securities Act and under other applicable securities laws of any other
jurisdictions upon the transferability of any particular shares of Restricted
Securities shall cease and terminate when such shares of Restricted Securities
have been sold pursuant to an effective registration statement under the
Securities Act or under other applicable securities laws or transferred pursuant
to Rule 144 promulgated under the Securities Act.
(4) As used in this Agreement, the term "transfer" encompasses any
sale, transfer, pledge or other disposition of any Common Stock referred to
herein.
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VII. Miscellaneous.
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A. Survival of Representations, Warranties and Covenants. The
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representations, warranties and covenants of the parties contained in this
Agreement and in any document delivered or to be delivered pursuant to this
Agreement and in connection with the Closings hereunder shall survive such
Closings. The parties have made no representations or warranties other than
those that are expressly set forth in this Agreement.
B. Entire Agreement. This Agreement (including Exhibits hereto) and the
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Warrants to which any of the parties hereto are parties, constitutes the entire
agreement between the parties hereto and supersede all prior agreements and
understandings, oral and written, between the parties hereto with respect to the
subject matter hereof.
C. Severability. Any provision of this Agreement that is prohibited,
------------
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition, unenforceability
or lack of authorization without invalidating the remaining provisions hereof or
affecting the validity, unenforceability or legality of such provision in any
other jurisdiction.
D. Binding Effect; Benefit. This Agreement shall inure to the benefit of
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and be binding upon the parties hereto, and their respective successors, legal
representatives and permitted assigns. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto, and
their respective successors, legal representatives and permitted assigns, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
E. Amendment; Waiver. No provision of this Agreement may be amended,
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waived or otherwise modified except by an instrument in writing executed by the
parties hereto.
F. Expenses. Each party shall pay its own fees and expenses, including
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attorney's fees, incurred in connection with this Agreement and the other
agreements and transactions contemplated hereby.
G. Assignment. Neither party can assign this Agreement without the prior
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written consent of the other.
H. Headings. The Articles and Section headings contained in this
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Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
I. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
J. Applicable Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Oregon without giving effect to the
principles of conflicts of laws thereof.
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K. Remedies. The remedies provided in this Agreement are cumulative and
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not exclusive of any remedies provided by law.
L. Notices and Payment.
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(1) All notices, requests, demands and other communications hereunder
shall be in writing and, except to the extent otherwise provided in this
Agreement, shall be deemed to have been duly given if delivered by same day or
next day courier or mailed, registered mail, return receipt requested, or
transmitted by telegram, telex or facsimile:
if to Investor:
with a copy to:
if to the Company:
OXIS International, Inc.
6040 N. Cutter Circle; Suite 317
Portland, Oregon 97217
Fax: (503) 283-4058
Phone: (503) 283-3911
with a copy to:
Jackson Tufts Cole & Black, LLP
60 South Market Street, 10th Floor
San Jose, CA 95113
Fax No.: (408) 998-4889
Attention: Richard Scudellari, Esq.
A notice hereunder shall be deemed to have been given on the day such notice is
sent or transmitted; provided, however, that if such notice is sent by next-day
courier it shall be deemed to have been given the day following sending and, if
by registered mail, five business days following sending and if sent by
facsimile, when receipt is acknowledged by recipient's facsimile machine
operator.
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(2) Unless otherwise provided in this Agreement, payments hereunder
shall be made by wire transfer of immediately available funds.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
OXIS INTERNATIONAL, INC.,
a Delaware corporation
By_____________________________________
Name:
Title:
INVESTOR:
_______________________________________
(Print Name)
By_____________________________________
Name:
Title:
-10-
<PAGE>
EXHIBIT 99.3
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER THE
SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION STATEMENT
IS IN EFFECT UNDER THE SECURITIES ACT AND ANY APPLICABLE
SECURITIES LAWS WITH RESPECT TO SUCH SECURITIES OR A WRITTEN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY IS
PROVIDED TO THE COMPANY TO THE EFFECT THAT NO REGISTRATIONS ARE
REQUIRED UNDER SUCH SECURITIES LAWS. THE SECURITIES MAY NOT
BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN PART NOR EXERCISED
EXCEPT IN ACCORDANCE WITH THE PROVISIONS 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 after the first anniversary of the date hereof,
but not after 5:00 P.M., Portland, Oregon, USA 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 US$______ per share
in lawful money of the United States of America.
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."
"Expiration Date" means _______ ___, 2003.
---------------
"Warrant Exercise Price" shall initially be US$_____ per share and
----------------------
shall be adjusted and readjusted from time to time to the extent as provided in
this Warrant.
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(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" and "Exhibit"
shall refer to Sections of, 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 first anniversary
of 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 Form
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 registered holder of this
Warrant, such issuance shall be deemed a transfer and the provisions of Section
11 shall be applicable. 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
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<PAGE>
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.
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 payable in
Common Stock, the Warrant Exercise Price in effect immediately prior to such
subdivision or stock dividend or distribution shall be proportionately reduced
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, 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. In the event of
a merger, consolidation or reorganization of the Company with or into another
corporation or corporations in which the Company is not the surviving entity
(other than a mere reincorporation transaction), a sale of all or substantially
all of the assets of the Company, or a transaction in which the Company issues
shares representing more than fifty percent (50%) of the voting power in the
Company immediately after giving effect to such transaction, the Company shall
give notice thereof to the registered holder of this Warrant at least ten (10)
business days prior to the consummation of such transaction.
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
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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.
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 of 1933, as
amended ("Securities Act"), 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.
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<PAGE>
(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 under the Securities Act
relating to such proposed transfer and such registration statement has become
effective under the Securities Act; provided, however, notwithstanding the
foregoing, the Company shall under no circumstances be obligated to file such a
registration statement relating to the transfer of this Warrant or the Warrant
Shares.
(c) 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. Representations 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. Investor represents that it is an "accredited
investor" as such term is defined under Regulation D of the Securities Act. Upon
exercise of this Warrant, the holder will confirm in writing, in form reasonably
satisfactory to the Company, the holder's investment intent.
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:
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(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
with a copy to:
Jackson Tufts Cole & Black, LLP
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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Section 17. Date. The date of this Warrant is ____________, 1998. 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 US $_________, the aggregate Warrant Exercise Price of such Warrant
Shares in full.
The undersigned represents that it is purchasing the Warrant Shares for its
own account for investment and not with a view to, or sale in connection with,
any distribution hereof, nor with any present intention of distributing the
same. The undersigned represents that it is an "accredited investor" as such
term is defined under Regulation D of the Securities Act of 1933, as amended
("Securities Act"). The Warrant Shares may not be sold, pledged, transferred,
hypothecated, or otherwise disposed of except pursuant to an effective
registration thereof under the Securities Act, or unless the Company shall have
received an opinion of counsel satisfactory to the Company that such
registration is not required.
INVESTOR:
By:_________________________________
Name:_______________________________
Title:______________________________
Address:____________________________
____________________________________
____________________________________
Number of Warrant Shares Being Purchased:
____________________________________
Dated: ______________, 199___.
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<PAGE>
EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made as of this ___ day
of _________, 1998, by and among OXIS International, Inc., a Delaware
corporation (the "Company"), and the investors in the common stock (the "Common
Stock") and the warrants (the "Warrants") of the Company listed on the
signature pages hereto (each a "Purchaser" and collectively, the "Purchasers"),
which Common Stock and Warrants were purchased by each Purchaser pursuant to the
terms of a virtually identical Common Stock and Warrant Subscription Agreement
by and between each Purchaser and the Company (the "Subscription Agreements",
each a Subscription Agreement).
In consideration of the mutual promises and covenants set forth herein, the
parties hereto agree as follows:
1. Registration Rights. The Company and each Purchaser covenant and
-------------------
agree as follows:
1.1 Definitions. For purposes of this Agreement:
-----------
(a) The term "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended;
(b) The term "Holder" means the Purchaser or any assignee thereof
in accordance with Section 1.9 hereof;
(c) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(d) The term "Registrable Securities" means (i) the Common Stock
purchased by the Purchasers, (ii) the Warrants; (iii) the Common Stock of the
Company issuable upon exercise of the Warrants (the "Warrant Shares") and (iv)
any Common Stock of the Company issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, or in exchange for or in replacement of,
such Common Stock excluding in all cases, however, any Registrable Securities
sold by a person in a transaction in which his registration rights are not
assigned;
(e) The term "Securities Act" means the Securities Act of 1933,
as amended;
(f) The term "SEC" means the Securities and Exchange Commission;
and
(g) The term "Violation" shall have the meaning ascribed to that
term in Section 1.7 of this Agreement.
<PAGE>
1.2. Registration of Shares.
----------------------
(a) Filing of Registration Statement. The Company shall use
--------------------------------
commercially reasonable efforts to file with the SEC, on or before the date
thirty (30) days following the date of the closing of the sale of securities
pursuant to the latest dated Subscription Agreement (the "Final Closing"), a
Form S-3, if available, or Form S-1 (if such Form S-3 is not available)
registration statement under the Securities Act covering the resale of the
Registrable Securities.
1.3. Obligations of the Company. Whenever required under this
--------------------------
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Use its commercially reasonable best efforts to cause a
registration statement filed with respect to the Registrable Securities to
become effective, and, keep such registration statement effective for up to one
hundred eighty (180) days;
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement;
(c) Furnish to each Holder such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them; and
(d) Use its commercially reasonable best efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by a majority of the Holders, provided, however, that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such states or jurisdictions.
1.4. Furnish Information. It shall be a condition precedent to the
-------------------
obligations of the Company to take any action pursuant to this Section 1 that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of the Registrable Securities.
1.5. Expenses of Company Registration. The Company shall bear and
--------------------------------
pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registration
pursuant to Section 1.2 for each Holder (which right may be assigned only as
provided in Section 1.9), including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees relating or
apportionable thereto and the reasonable fees and disbursements of one counsel
for the selling Holders (which counsel's
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<PAGE>
fees shall not exceed US $10,000) selected by them, but excluding underwriting
discounts and commissions relating to Registrable Securities.
1.6. Delay of Registration. No Holder shall have any right to
---------------------
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.7. Indemnification. In the event any Registrable Securities are
---------------
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the officers, directors, partners and legal
counsel of each Holder, and each person, if any, who controls such Holder within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other United States
federal or state law, rule or regulation insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any United States state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any United States state securities law; and the Company will
reimburse each such Holder, officer, director, partner, legal counsel,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this subsection 1.7(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, nor shall the Company
be liable in any such case for any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, officer, partner,
director, legal counsel or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors and officers, its
legal counsel, each person, if any, who controls the Company within the meaning
of the Securities Act, and any other Holder selling securities in such
registration statement or any of such other Holder's directors, legal counsel or
officers or any person who controls such Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, legal counsel, or controlling person, or other such Holder or
director, officer, legal counsel or controlling person of such other Holder may
become subject, under the Securities Act, the Exchange Act or other United
States federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent
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<PAGE>
(and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by such Holder expressly for use
in connection with such registration; and each such Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, legal counsel, controlling person, other Holder, or officer, director,
legal counsel, or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this subsection
1.7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the consent
of the Holder. The aggregate indemnification obligations of any selling Holder
pursuant to the provisions of this Section 1.7(b) shall be limited to an amount
equal to the proceeds received by such selling Holder pursuant to the terms of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel at its own expense if it so desires.
Notwithstanding the foregoing, if the indemnified party and the indemnifying
party have conflicting interests with respect to the action so that joint
counsel for them would be inappropriate, (as determined by counsel to the
indemnified party and counsel to the indemnifying party), then the indemnifying
party shall pay reasonable fees and expenses of one counsel to the indemnified
party. The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.7, but the omission to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party, then each indemnifying party, in lieu of indemnifying such indemnified
party thereunder, hereby agrees to contribute to the amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other.
(e) The obligations of the Company and Holders under this Section
1.7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.8. Reports Under Securities Exchange Act of 1934. With a view to
---------------------------------------------
making available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the
4
<PAGE>
Company to the public without registration, the Company agrees to use its
commercially reasonable best efforts to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(b) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the Exchange Act, and (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company.
1.9. Assignment of Registration Rights. The rights to cause the
---------------------------------
Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee who is not a competitor of the
Company and acquires at least five hundred thousand (500,000) shares (as
adjusted for stock splits, combinations, etc.) of Common Stock; provided,
however, in each case, the Company is, within thirty days after such transfer,
furnished with written notice (i) stating the name and address of such assignee,
(ii) identifying the securities with respect to which such registration rights
are being assigned, and (iii) confirming that the assignee agrees to be bound by
the terms and conditions of agreements governing such rights; and provided,
further, that such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act.
1.10. Standstill Agreement. Each Holder hereby agrees that if such
--------------------
Holder is notified by the Company that the registration statement covering the
resale of the Registrable Securities is no longer deemed effective by the SEC,
or if the registration statement or the prospectus forming a part of the
registration statement no longer contains all information required under the
United States federal or state securities laws, the Holder shall cease selling
any Registrable Securities until notified by the Company that the registration
statement is effective and/or contains all required information under the United
States federal or state securities laws.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each Holder
(and the shares or securities of every other person subject to the foregoing
restriction).
2. Miscellaneous.
-------------
2.1. Amendment. Any provision of this Agreement may be amended
---------
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of at least 66-2/3% of the Registrable
Securities owned by the Purchasers. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder of any
securities purchased under this Agreement at the time outstanding (including
securities into
5
<PAGE>
which such securities are convertible), each future Holder of all such
securities, and the Company.
2.2. Entire Agreement. This Agreement represents the entire and
----------------
only agreement and understanding between the Purchasers and the Company
concerning the subject matter hereof and supersedes all prior oral and written
and all contemporaneous oral agreements, arrangements, understandings,
negotiations, commitments and understandings between the parties. No prior
agreement, whether written or oral, shall be construed to change, amend, alter,
repeal or invalidate this Agreement.
2.3. Notices. Unless otherwise specified herein, all notices or
-------
other communications required or permitted under this Agreement shall be given
in writing and shall be deemed effective and received: (a) immediately if
delivered in hand; (b) one (1) business day after direct transmission by
facsimile equipment; (c) one (1) business day after the date of sending by
Federal Express or any similar overnight delivery service; or (d) five (5)
business days after the date of mailing by United States registered or certified
mail, return receipt requested and postage prepaid at the address or telecopy
number indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance notice to the
other parties.
2.4. Assigns, Heirs, Representatives, Agents and Successors.
------------------------------------------------------
Each and all of the provisions contained in this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
assigns, heirs, representatives, agents and all other successors in interest. No
assignment shall release the Holder from any obligation or liability under this
Agreement.
2.5. Governing Law, Venue and Jurisdiction. This Agreement shall
-------------------------------------
be governed by, and construed in accordance with, the laws of the State of
Oregon, without regard to any principles of conflict of laws, and shall in all
respects be interpreted, enforced and governed within and under the laws of the
State of Oregon. Each party hereto expressly submits to the jurisdiction and
venue of the State and Federal Courts of Oregon.
2.6. Article and Section Headings. The section, subsection and
----------------------------
subdivision headings in this Agreement are for convenience and identification
only and are in no way intended to describe, define, alter, modify, amend,
limit, or restrict the scope, extent, or intent of this Agreement or any
provision hereof.
2.7. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
6
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties on this
___ day of ________________, 1998.
OXIS INTERNATIONAL, INC. PURCHASER
By: ________________________ By: ________________________
Name: ________________________ Name: ________________________
Title: ________________________ Title: ________________________
Address:
_______________________________
_______________________________
_______________________________
7
<PAGE>
EXHIBIT 99.5
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is made as of the ____ day
of ________, 1998, by and among OXIS International, Inc., a Delaware corporation
(the "Company"), the investor whose name is set forth on the signature page
hereto (the "Investor"), and Jackson Tufts Cole & Black, LLP, a California
limited liability partnership, as Escrow Agent ("Escrow Agent", collectively
with the Company and the Investor, the "Parties").
1. The Investor has agreed to deposit with the Escrow Agent in escrow, the
sum of US$_______________________ (the "Escrowed Funds") as the purchase price
for ____________ shares of the Company's common stock (the "Common Stock") and a
Warrant to purchase an equal number of shares of the Company's common stock (the
"Warrant"), each purchase to be made pursuant to the terms of that certain
Common Stock and Warrant Purchase Agreement of even date herewith, substantially
in the form attached hereto as Exhibit A (the "Subscription Agreement"). The
Parties agree that capitalized terms used but not defined herein will have the
meanings ascribed to them in the Subscription Agreement.
2. The Escrow Agent agrees to maintain the Escrowed Funds in an interest
bearing account and agrees to disburse the Escrowed Funds pursuant to the terms
of this Escrow Agreement. Any disbursement of the Escrowed Funds to the Company
or back to the Investor under the terms hereof will include the interest accrued
on such Escrowed Funds.
3. The Parties note that the Subscription Agreement provides for a first
closing that will take place the date hereof (the "First Closing") and a second
closing (the "Second Closing"). The Second Closing will not occur until after
the Company has amended its Certificate of Incorporation to increase the number
of authorized shares of Common Stock from 50 million to 95 million (the
"Amendment").
4. The Parties agree that, upon notification by the Company's transfer
agent (the "Transfer Agent") to the Escrow Agent that share certificates
relating to the Common Stock to be issued to the Investor in connection with the
First Closing (the "First Closing Common Stock") have been disbursed to the
Investor by the Transfer Agent, the Escrow Agent will disburse to the Company
that portion of the Escrowed Funds which constitutes the Investor's purchase
price for the First Closing Common Stock. In the event that the First Closing
does not occur by May 15, 1998 the Escrow Agent agrees to return the Escrowed
Funds to the Investor.
5. The Parties agree that upon notification by the Transfer Agent that
share certificates relating to the Common Stock to be issued to the Investor in
connection with the Second Closing (the "Second Closing Common Stock") have been
disbursed to the Investor by the Transfer Agent, the Escrow Agent will disburse
to the Company the remaining amount of the Escrowed Funds (the "Remaining Escrow
Balance"). In the event that the Company's annual meeting of Stockholders is not
held by July 15, 1998 the Escrow Agent agrees to return Remaining Escrow Balance
to the Investor. The Escrow Agent may also deliver the Remaining Escrow Balance
pursuant to joint instructions received from the Company and the Investor.
<PAGE>
6. Upon the disbursement of the Remaining Escrow Balance, the Escrow Agent
will have no further obligations under this Escrow Agreement.
7. The Investor and the Company agree jointly and severally to hold the
Escrow Agent harmless and to indemnify the Escrow Agent against any loss,
liability, expenses (including attorney's fees and expenses), claim, or demand
arising out of or in connection with the performance of its obligations as
Escrow Agent. The foregoing indemnification shall survive the resignation of the
Escrow Agent and the termination of this Escrow Agreement. The Investor and the
Company acknowledge that the Escrow Agent also serves as legal counsel to the
Company. The parties waive any conflict of interest that may be created due to
the facts set forth in the immediately preceding sentence.
8. The Escrow Agent's duties are only such as are specifically provided
herein, and the Escrow Agent shall incur no liability whatsoever to the Investor
or the Company and shall have no responsibility hereunder other than to follow
faithfully the instructions herein contained. The Escrow Agent may consult with
counsel and shall be fully protected in any action taken in good faith in
accordance with such advice. The Escrow Agent shall be fully protected in acting
in accordance with any written instructions given to it hereunder and believed
by it to have been executed by the proper parties. The Escrow Agent shall not be
liable for interest on the Escrowed Funds in any circumstances.
(a) It is understood and agreed that should any dispute arise with
respect to the payment and/or ownership or right of possession of the Escrowed
Funds, the Escrow Agent is authorized and directed to retain in its possession,
without liability to anyone, all or any part of said Escrowed Funds until such
dispute shall have been settled either by mutual agreement by the parties
concerned or by the final order, decree or judgment of a court or other tribunal
of competent jurisdiction in the United States of America and time for appeal
has expired and no appeal has been perfected, but the Escrow Agent shall be
under no duty whatsoever to institute or defend any such proceedings.
(b) The Escrow Agent may resign at any time by giving written notice
thereof to the other parties hereto, but such resignation shall not become
effective until a successor escrow agent shall have been appointed and shall
have accepted such appointment in writing. If an instrument of acceptance by a
successor escrow agent shall not have been delivered to the Escrow Agent within
30 days after the giving of such notice of resignation, the resigning Escrow
Agent may petition any court of competent jurisdiction for the appointment of a
successor escrow agent.
9. This Escrow Agreement shall be construed in accordance with the laws of
the State of California without regard to conflict of law provisions thereof. It
may be executed in several counterparts, each one of which shall constitute an
original, and all collectively shall constitute but one and the same instrument.
10. Any notice, consent or request to be given in connection with any of
the terms or provisions of this Escrow Agreement shall be in writing and shall
be delivered by hand or sent by registered mail, postage prepaid:
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<PAGE>
(i) If to the Company:
Attn: Ray Rogers, Chief Executive Officer
OXIS International, Inc.
6040 N. Cutter Circle, Suite 317
Portland, Oregon 97217
Phone: (503) 283-3911
Facsimile: (503) 283-4058
(ii) if to Investor:
_______________________
_______________________
_______________________
_______________________
_______________________
(iii) if to Escrow Agent:
Jackson Tufts Cole & Black, LLP
Attn: Richard Scudellari, Esq.
60 S. Market Street, 10th Floor
San Jose, CA 95113
Facsimile: (408) 998-4889
11. In addition to termination by its own terms, this Escrow Agreement may
be otherwise terminated pursuant a written agreement by the parties.
12. Upon termination of this Escrow Agreement, the Escrow Agent may request
from any and all of the parties hereto such additional assurances, certificates,
satisfactions, releases and/or other documents as it may reasonably deem
appropriate to evidence the termination of this Escrow Agreement.
13. This Escrow Agreement and all documents contemplated hereby contain the
entire agreement of the parties with respect to the subject matter hereof; any
amendment hereto or modification or variation hereof shall be ineffective unless
in writing signed by each of the parties hereto.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the date first above written.
INVESTOR
By: __________________________
Name:_________________________
(Print)
Title:__________________________
Address:
_______________________________
_______________________________
_______________________________
_______________________________
OXIS INTERNATIONAL, INC.
By __________________________
Name:________________________
Title:_________________________
JACKSON TUFTS COLE & BLACK, LLP
as Escrow Agent
By: __________________________
Name: Richard Scudellari
Title: Partner
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