<PAGE>
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) March 6, 2000
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OXIS INTERNATIONAL, INC.
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Delaware 0-8092 94-1620407
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(State or Other Jurisdiction of (Commission File Number) (IRS Employer
Incorporation) 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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Item 5. Other Events
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On February 21, 2000, 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 warrants to purchase
two shares 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. One share covered by the warrants may be purchased at 125% of the
closing price of OXIS common stock on the business day prior to the signing of
the subscription agreements. The other share covered by the warrants may be
purchased at 150% of the closing price of the OXIS common stock on the business
day prior to the signing of the subscription agreements. The private placement
closed on March 6, 2000, and the total gross proceeds were $4,802,000, including
$202,000 in conversion of notes and accrued interest, and the remainder in cash.
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, Warrants to Purchase Common Stock and
Registration Rights Agreement are substantially as attached as exhibits to this
report.
All securities mentioned in this report 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 4.2 Form of Common Stock and Warrant Subscription Agreement
Exhibit 4.3 Form of Warrant to Purchase Common Stock (Exhibit A)
Exhibit 4.4 Form of Warrant to Purchase Common Stock (Exhibit B)
Exhibit 10.1 Form of Registration Rights Agreement
Exhibit 99.1 Press Release, dated March 7, 2000.
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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.
March 23, 2000 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 4.2 Form of Common Stock and Warrant Subscription Agreement 6
Exhibit 4.3 Form of Warrant to Purchase Common Stock (Exhibit A) 17
Exhibit 4.4 Form of Warrant to Purchase Common Stock (Exhibit B) 25
Exhibit 10.1 Form of Registration Rights Agreement 33
Exhibit 99.1 Press Release, dated March 7, 2000 42
<PAGE>
Exhibit 4.2
COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT
This COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT, dated as of February
21,2000 (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
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WHEREAS, Investor wishes to invest $_____________ in the Company
(Investor's Investment"), 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 two
warrants to Investor for the future purchase of shares of Common Stock (the
"Warrants") 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 Warrants.
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A. The Common Stock and Warrants. The Company has authorized the issuance and
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sale pursuant to the terms of this Agreement of the Shares and the issuance
of the Warrants to Investor substantially in the forms attached hereto as
Exhibit A and Exhibit B. Subject to the terms and conditions of this
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Agreement, Investor hereby irrevocably subscribes for and agrees to
purchase the number of Shares provided for in Section I.B below for US$4.75
per Share (a price which equals the closing price of the Company's Common
Stock on the Nasdaq National Market on February 18, 2000) (the "Per Share
Price") and the Warrants as provided for herein. The exercise price with
respect to each Share covered by the Warrant set forth in Exhibit A shall
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be 125% of the Per Share Price (the "125% Warrant") and the exercise price
with respect to each Share covered by the Warrant set forth in Exhibit B
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shall be 150% of the Per Share Price (the "150% Warrant"). 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 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 on or prior to the Closing Date.
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B. 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 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. At the consummation of the purchase of the Shares and the
Warrants (the "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
the Shares to be purchased by Investor and a 125% Warrant for the
purchase of an equal number of Shares and a 150% Warrant for the
purchase of an equal number of Shares, against payment of the Purchase
Price by Investor. The Closing will take place on February 23, 2000 or
such later date as the Company shall receive subscriptions for
securities with total gross proceeds, equal to US $4,000,000 or more
(the "Closing Date") at a location to be designated by the Company.
II. Conditions to the Obligations of Investor. The obligation of Investor to
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purchase the Shares and the Warrants under this Agreement is subject to the
satisfaction at or prior to the Closing Date 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 the 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
Warrants.
3. The Company shall have obtained all corporate authorizations and
approvals and all consents and approvals of regulatory bodies and
authorities necessary to issue the Shares and the applicable
Warrants and to enter into and perform this Agreement and such
<PAGE>
Warrants and to consummate the transactions contemplated hereby
and thereby.
If at or prior to the 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 Shares and the applicable Warrants under this Agreement
is subject to satisfaction at the 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 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 the Closing Date.
C. Payment of Purchase Price. Investor shall have delivered to the
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Company and the Company shall have received full payment of the
Purchase Price.
D. Corporate Authorizations. The Company shall have obtained all
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corporate 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 the Company being satisfied that the sale of the
Shares and the Warrants at the Closing will not cause the Company to
be out of compliance with any of the criteria required to be complied
with in order to continue to be listed on the Nasdaq National Market).
If at or prior to the 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 the 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
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proposed to be conducted. The Company has full right, power and
authority to enter into this Agreement and the Warrants and perform
its obligations hereunder and thereunder.
B. Authorization and Validity of Agreements. This Agreement and the
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Warrants 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
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Have Been Obtained. The execution and delivery of this Agreement and
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the Warrants by 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.
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 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").
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 the 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
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Have Been Obtained. The execution and delivery of this Agreement and
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the Warrants by 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
<PAGE>
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 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, judgement, decree, law, ordinance
or legal 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.
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, 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.A 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;
<PAGE>
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 to 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
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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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
<PAGE>
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 REGISTRATION IS 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 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 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
<PAGE>
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.
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 the parties hereto are parties, constitute 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,
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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.
<PAGE>
E. Amendment Waiver. No provision of this Agreement may be amended,
----------------
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. Assignments. 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. The courts residing in
the State of Oregon shall have exclusive jurisdiction over any dispute
arising out of or related to this Agreement, or the purchase of the
Shares, Warrants or Warrant Shares.
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 the Investor:
<PAGE>
with a copy to:
if to the Company:
OXIS International, Inc.
6040 N Cutter Circle
Suite 317
` Portland, OR 97217
FAX: 503.283.4058
PHONE: 503.283.3911
If a notice hereunder 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.
2. Unless otherwise provided in this Agreement, payments hereunder
shall be made by wire transfer of immediately available funds.
<PAGE>
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:
<PAGE>
Exhibit 4.3
EXHIBIT A
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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 REGISTRATION IS 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 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
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this Warrant shall have the following meanings:
"Common Stock" means (a) the Company's Common Stock, par value $.001
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and (b) any capital stock into which such Common Stock shall have been
changed or any capital stock resulting from a reclassification of such
Common Stock.
"Expiration Date" means ______________, 2001 (one year after the
---------------
Closing Date as defined in the Subscription Agreement)
"Warrant Exercise Price" shall initially be US$_____________ per share
----------------------
and shall be
<PAGE>
adjusted and readjusted from time to time to the extent as provided in this
Warrant.
(b) Other Definitional Provisions. (i) Except as otherwise
-----------------------------
specified herein, all reference 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
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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 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
<PAGE>
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.
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
<PAGE>
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 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 it 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.
<PAGE>
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.
(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
<PAGE>
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:
(i) if to the Company, to it at:
OXIS International, Inc.
Corporate Headquarters
6040 N. Cutter Circle, Suite 317
Portland, Oregon 97217-3935
Attention: Chief Financial Officer
Telephone: (503) 283-3911
Telecopier: (503) 283-4058
(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. The courts sitting in the State of Oregon shall have the
exclusive jurisdiction over any dispute arising out of, or relating to, the
Warrant or the purchase of the Warrant Shares.
<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:______________________
______________________________
______________________________
<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 to
purchase _______ Warrant Shares.
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: ___________________, 200__.
<PAGE>
Exhibit 4.4
EXHIBIT B
---------
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 REGISTRATION IS 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 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$7.13 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, par value $.001
-------------
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 ______________, 2002 (two years after the
---------------
Closing Date as defined in the Subscription Agreement)
"Warrant Exercise Price" shall initially be US$7.13 per share and
----------------------
shall be
<PAGE>
adjusted and readjusted from time to time to the extent as provided in this
Warrant.
(b) Other Definitional Provisions. (i) Except as otherwise
-----------------------------
specified herein, all reference 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 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
<PAGE>
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.
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
<PAGE>
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 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 it 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.
<PAGE>
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.
(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
<PAGE>
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:
(i) if to the Company, to it at:
OXIS International, Inc.
Corporate Headquarters
6040 N. Cutter Circle, Suite 317
Portland, Oregon 97217-3935
Attention: Chief Financial Officer
Telephone: (503) 283-3911
Telecopier: (503) 283-4058
(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. The courts sitting in the State of Oregon shall have the
exclusive jurisdiction over any dispute arising out of, or relating to, the
Warrant or the purchase of the Warrant Shares.
<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:______________________
______________________________
______________________________
<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 to
purchase _______ Warrant Shares.
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: ___________________, 200__.
<PAGE>
Exhibit 10.1
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REGISTRATION RIGHTS AGREEMENT
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This Registration Right Agreement ("Agreement") is made as of this _________ day
of ______________, 2000, by and among OXIS International, Inc., a Delaware
corporation (the "Company"), and the investors in the common stock (the "Common
Stock") and the warrants to purchase Common Stock of the Company (the
"Warrants") 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
dated February 21, 2000 (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
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follows:
1.1 Definitions. For purposes of this Agreement:
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(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 Common Stock of the Company
issuable upon exercise of the Warrants (the "Warrant Shares") and
(iii) 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;
<PAGE>
(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.
1.2 Registration of Shares.
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(a) Filing of Registration Statement. The Company shall use commercially
--------------------------------
reasonable efforts to file with the SEC, on or before the date ninety
(90) 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 Registerable Securities.
1.3 Obligation of the Company. Whenever required under this Section 1 to effect
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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
<PAGE>
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
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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
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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, 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
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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
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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
<PAGE>
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 (and only to the extent) that such Violation occurs in
reliance upon and in confornity 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
<PAGE>
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 the indemnified party of any
obligation or liability to indemnify 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
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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
<PAGE>
sell securities of the 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
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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 two hundred thousand (200,000) 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
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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.
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<PAGE>
2.1. Amendment. Any provision of this Agreement may be amended and the
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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 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
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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
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communications required or permitted under this Agreement shall be given in
writing and shall be deemed effective and received: (a) immediately if
delivered by hand; (b) one (1) business day after direct transmission by
facsimile equipment; (c) two (2) business days 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
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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,
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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 which shall have exclusive
jurisdiction of all disputes arising hereunder or related hereto.
2.6. Article and Section Headings. The section, subsection and subdivision
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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.
<PAGE>
2.7. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed to be an original, but all of which shall be
one and the same document.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties on
this____ day of ________________, 2000
OXIS INTERNATIONAL, INC. PURCHASER
By:_______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title:_______________________
Address:
______________________________
____________________________________
____________________________________
<PAGE>
Exhibit 99.1
Press Release, dated March 7, 2000
OXIS INTERNATIONAL ANNOUNCES CLOSING OF $4.8 MILLION IN FIRST PHASE OF PRIVATE
FINANCING
Portland, Ore.- March 7, 2000 - 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 phase of a private equity financing, in which $4.8 million
USD was raised toward planned gross proceeds of $8 million USD. In the
financing, the Company is issuing units consisting of one share of common stock,
plus warrants to purchase two shares of common stock. One share covered by the
warrants may be purchased at 125% of the closing price of OXIS common stock on
the business day prior to the signing of the subscription agreement. The other
share covered by the warrants may be purchased at 150% of the closing price of
the OXIS common stock on the business day prior to the signing of the
subscription agreement. The units in the first tranche were priced at the
closing price of the OXIS common stock the business day prior to the signing of
the subscription agreements ($4.75 per unit). OXIS raised gross proceeds of
approximately $4.8 million USD in the first tranche. OXIS has agreed to file
within 90 days of the closing of the offering with the Securities and Exchange
Commission a registration statement covering the resale of the common stock sold
in the private offering.
"Completion of this phase of financing is an extremely important step since the
majority of these funds will be used to support the development of our lead
molecule, BXT-51072, to continue development of our second series of molecules
and to begin to expand our product portfolio," stated Paul C. Sharpe, M.D., CEO
of OXIS.
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.
This press release contains forward-looking statements that involve risks and
uncertainties, including the Company's ability to raise additional funds in this
private financing, timely development and market acceptance of new products, 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 is headquartered in Portland, Oregon. Visit OXIS International, Inc. on the
World Wide Web at http://www.oxis.com.
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For more information, contact:
Ray R. Rogers
Chairman
503/247-2373
