Exhibit
3.1
CERTIFICATE
OF DESIGNATION OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES
H CONVERTIBLE PREFERRED STOCK OF
OXIS
INTERNATIONAL, INC.
Pursuant
to Section 151 of the Delaware
General
Corporation Law
I, Anthony J. Cataldo, Chief
Executive Officer of Oxis International, Inc., a corporation organized and
existing under the Delaware General Corporation Law (the “
Corporation
”), in
accordance with the provisions of Section 151 of such law, DO HEREBY CERTIFY
that at a meeting of the Board of Directors that the following resolutions were
adopted:
RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Corporation in accordance with
the provisions of Article FOURTH of the Corporation’s Second Restated
Certificate of Incorporation, as amended, a series of Preferred Stock of the
Corporation be, and hereby is, created, and the powers, designations,
preferences and relative, participating, optional or other special rights of the
shares of such series, and the qualifications, limitations or restrictions
thereof, be, and hereby are, as follows:
Section 1.
Designation, Amount and Par
Value
. The series of preferred stock shall be designated as its Series H
Convertible Preferred Stock (the “
Preferred Stock
”) and
the number of shares so designated shall be 25,000 (which shall not be subject
to increase without the consent of the holders of a majority of the Preferred
Stock (each, a “
Holder
” and
collectively, the “
Holders
”)). Each
share of Preferred Stock shall have $.001 par value and a stated value equal to
$1.00 (as adjusted from time to time in accordance with the terms hereof, the
“
Stated
Value
”). Capitalized terms not otherwise defined herein shall
have the meaning given such terms in Section 5 hereof.
Section 2.
Voting Rights
. Except
as otherwise provided herein and as otherwise provided by law, each outstanding
share of Preferred Stock shall be entitled to a number of votes equal to (A) the
number of shares of common stock that such share of Preferred Stock could, at
such time, be converted into (without regard to any of the limitations contained
in Section 4(a)(ii), below) (B) multiplied by 100. Without limiting
the generality of the foregoing sentence, so long as any shares of Preferred
Stock are outstanding, the Corporation shall not, without the affirmative vote
of the Holders of a majority of the shares of the Preferred Stock then
outstanding, (a) alter or change adversely the powers, preferences or rights
given to the Preferred Stock or alter or amend this Certificate of Designation,
(b) authorize or create any class of stock ranking as to dividends, redemption
or distribution of assets upon a Liquidation (as defined in Section 3) senior to
or otherwise pari passu with the Preferred Stock, (c) amend its certificate of
incorporation or other charter documents so as to affect adversely any rights of
the Holders, (d) increase the authorized number of shares of Preferred Stock,
(e) enter into any agreement with respect
to the
foregoing, (f) voluntarily file for bankruptcy, liquidate the Corporation’s
assets or make an assignment for the benefit of the Corporation’s creditors, or
(g) materially change the nature of the Corporation’s business.
Section 3.
Liquidation
. Upon any
liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary (a “
Liquidation
”), the
Holders shall be entitled to receive out of the assets of the Corporation,
whether such assets are capital or surplus, for each share of Preferred Stock an
amount equal to the Stated Value per share plus a cumulative, but not
compounded, return of 15% per year thereon from the Original Issue Date, before
any distribution or payment shall be made to the holders of any Junior
Securities, and if the assets of the Corporation shall be insufficient to pay in
full such amounts, then the entire assets to be distributed to the Holders shall
be distributed among the Holders ratably in accordance with the respective
amounts that would be payable on such shares if all amounts payable thereon were
paid in full. A Fundamental Transaction or Change of Control
Transaction shall not be treated as a Liquidation. The Corporation shall mail
written notice of any such Liquidation, not less than 45 days prior to the
payment date stated therein, to each record Holder.
Section
4.
Conversion
.
(a) (i)
Conversions at Option of
Holder
. Each share of Preferred Stock shall be convertible into shares of
Common Stock (subject to the limitations set forth in Section 4(a)(ii))
determined by dividing the Stated Value of such share by the Set Price, at the
option of the Holder, at any time and from time to time from and after the
Original Issue Date. Holders shall effect conversions by providing the
Corporation with the form of conversion notice attached hereto as
Annex A
(a “
Notice of
Conversion
”), to the attention of the Corporation’s Chief Executive
Officer. Each Notice of Conversion shall specify the number of shares of
Preferred Stock to be converted, the number of shares of Preferred Stock owned
prior to the conversion at issue, the number of shares of Preferred Stock owned
subsequent to the conversion at issue and the date on which such conversion is
to be effected, which date may not be prior to the date the Holder delivers such
Notice of Conversion to the Corporation in accordance with Section 6(e) (the
“
Conversion
Date
”). If no Conversion Date is specified in a Notice of
Conversion, the Conversion Date shall be the date that such Notice of Conversion
to the Corporation is deemed delivered hereunder. The calculations and entries
set forth in the Notice of Conversion shall control in the absence of manifest
or mathematical error.
(ii)
Beneficial Ownership
Limitation.
(A) The Corporation shall not effect any
conversion of the Preferred Stock, and the Holder shall not have the right to
convert any portion of the Preferred Stock to the extent that after giving
effect to such conversion, the Holder (together with the Holder’s affiliates),
as set forth on the applicable Notice of Conversion, would beneficially own in
excess of 9.9% of the number of shares of the Common
Stock
Outstanding immediately after giving effect to such conversion. Beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange
Act. To the extent that the limitation contained in this Section
4(a)(ii) applies, the determination of whether the Preferred Stock is
convertible (in relation to other securities owned by the Holder together with
any affiliates) and of which shares of Preferred Stock is convertible shall be
in the sole discretion of such Holder, and the submission of a Notice of
Conversion shall be deemed to be such Holder’s determination of whether the
shares of Preferred Stock may be converted (in relation to other securities
owned by such Holder) and which shares of the Preferred Stock is convertible, in
each case subject to such aggregate percentage limitations. To ensure compliance
with this restriction, the Holder will be deemed to represent to the Corporation
each time it delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and the Corporation
shall have no obligation to verify or confirm the accuracy of such
determination. For purposes of this Section 4(a)(ii), in determining
the number of outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in the most recent of
the following: (A) the Corporation’s most recent Form 10-Q or Form 10-K, as the
case may be, (B) a more recent public announcement by the Corporation, or (C)
any other notice by the Corporation or the Corporation’s transfer agent setting
forth the number of shares of Common Stock Outstanding. Upon the written
or oral request of the Holder, the Corporation shall within two Trading Days
confirm orally and in writing to the Holder the number of shares of Common Stock
then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of
securities of the Corporation, including the Preferred Stock, by the Holder or
its affiliates since the date as of which such number of outstanding shares of
Common Stock was reported. The beneficial ownership limitation
provisions of this Section 4(a)(ii) may be waived by any Holder, at the election
of such Holder, upon not less than 61 days’ prior notice to the
Corporation.
(b) (i)
The conversion price for each share of Preferred Stock shall equal the lesser of
(A) $0.01 and (B) 60% of the average of the 3 lowest trading prices occurring at
any time during the 20 trading days preceding conversion (the “
Set Price
”), subject
to adjustment below:
(ii) if the Corporation, at any time
while the Preferred Stock is outstanding: (A) shall pay a stock dividend or
otherwise make a distribution or distributions on shares of its Common Stock or
any other equity or equity equivalent securities payable in shares of Common
Stock, (B) subdivide outstanding shares of Common Stock into a larger
number of shares, (C) combine (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares, or (D) issue
by
reclassification
of shares of the Common Stock any shares of capital stock of the Corporation,
then the Set Price shall be multiplied by a fraction of which the numerator
shall be the number of shares of Common Stock (excluding treasury shares, if
any) outstanding before such event, and of which the denominator shall be the
number of shares of Common Stock Outstanding after such event. Any
adjustment made pursuant to this Section shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification.
(iii) except
in connection with the issuance of securities associated with (a) shares of
Common Stock or options to employees, officers, consultants or directors of the
Corporation pursuant to any stock or option plan duly adopted by a majority of
the non-employee members of the Board of Directors of the Corporation or a
majority of the members of a committee of non-employee directors established for
such purpose [so long as such issuances in the aggregate do not exceed ten
percent (10%) of the issued and outstanding shares of Common Stock at any given
point in time and such issuances are issued at or above the then current market
price], or (b) securities upon the exercise of or conversion of any securities
issued hereunder, convertible securities, options or warrants issued and
outstanding on the Original Issue Date, provided that such securities have not
been amended since the date of the Original Issue Date to increase the number of
such securities or to decrease the exercise or conversion price of any such
securities (“
Excepted
Issuances
”), if the Corporation, at any time while the Preferred Stock is
outstanding, shall issue rights, options or warrants to holders of Common Stock
(and not to Holders) entitling them to subscribe for or purchase shares of
Common Stock at a price per share (the “
Effective Price
”)
less than the Set Price then in effect, then and in each such case the then
existing Set Price shall be reduced to a price equal to the Effective Price (the
“
New Set
Price
”). Such adjustment shall be made whenever such rights or
warrants are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants.
(iv) except
in connection with an Excepted Issuance, if the Corporation or any Subsidiary
thereof at any time while any of the Preferred Stock is outstanding, shall
offer, sell, grant any option or warrant to purchase or offer, sell or grant any
right to reprice its securities, or otherwise dispose of or issue (or announce
any offer, sale, grant or any option to purchase or other disposition) any
Common Stock or any equity or equity equivalent securities (including any
equity, debt or other instrument that is at any time over the life thereof
convertible into or exchangeable for Common Stock) (collectively, “
Common Stock
Equivalents
”) entitling any Person to acquire shares of Common Stock, at
an Effective Price per share
less than
the Set Price then the Set Price shall be reduced to a price equal the Effective
Price. Such adjustment shall be made whenever such Common Stock or Common Stock
Equivalents are issued.
(v) if
the Corporation, at any time while the Preferred Stock is outstanding, shall
distribute to all holders of Common Stock (and not to Holders) evidences of its
indebtedness or assets or rights or warrants to subscribe for or purchase any
security other than the Common Stock (which shall be subject to Section
4(b)(iii)), then in each such case the Set Price shall be adjusted by
multiplying the Set Price in effect immediately prior to the record date fixed
for determination of stockholders entitled to receive such distribution by a
fraction of which the denominator shall be the VWAP determined as of the record
date mentioned above, and of which the numerator shall be such VWAP on such
record date less the then per share fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed applicable to
one outstanding share of the Common Stock as determined by the Board of
Directors in good faith. In either case the adjustments shall be
described in a statement provided to the Holders of the portion of assets or
evidences of indebtedness so distributed or such subscription rights applicable
to one share of Common Stock. Such adjustment shall be made whenever
any such distribution is made and shall become effective immediately after the
record date mentioned above.
(vi) All
calculations under this Section 4(b) shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. The number of shares of Common
Stock outstanding at any given time shall not include shares owned or held by or
for the account of the Corporation, and the disposition of any such shares shall
be considered an issue or sale of Common Stock. For purposes of this Section 4,
the number of shares of Common Stock deemed to be outstanding (the “
Common Stock
Outstanding
”) as of a given date shall be the sum of the number of shares
of Common Stock (excluding treasury shares, if any) issued and
outstanding.
(vii) Notwithstanding
anything to the contrary herein, no adjustment shall be made hereunder in
connection with an Excepted Issuance.
(viii) Whenever
the Set Price is adjusted pursuant to this Section, the Corporation shall
promptly mail to each Holder, a notice setting forth the Set Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
Section 5.
Definitions
. For the
purposes hereof, the following terms shall have the following
meanings:
“
Change of Control
Transaction
” means the occurrence after the date hereof of any of (a) an
acquisition after the date hereof by an individual or legal entity or “group”
(as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of capital
stock of the Corporation, by contract or otherwise) of in excess of 33% of the
voting securities of the Corporation, or (b) the execution by the Corporation of
an agreement to which the Corporation is a party or by which it is
bound, providing for any of the events set forth above in (a).
“
Closing Bid Price
”
means, for any security as of any date, the last closing bid price of such
security on the OTC Bulletin Board or other principal exchange on which such
security is traded as reported by Bloomberg, or, if no closing bid price is
reported for such security by Bloomberg, the last closing trade price of such
security as reported by Bloomberg, or, if no last closing trade price is
reported for such security by Bloomberg, the average of the bid prices of any
market makers for such security as reported in the “pink sheets” by the National
Quotation Bureau, Inc. If the Closing Bid Price cannot be calculated
for such security on such date on any of the foregoing bases, the Closing Bid
Price of such security on such date shall be the fair market value as mutually
determined by the Corporation and the holders of a majority of the outstanding
shares of Preferred Stock.
“
Commission
” means the
Securities and Exchange Commission.
“
Common Stock
” means
the Corporation’s common stock, $0.001 par value per share, and stock of any
other class into which such shares may hereafter have been reclassified or
changed.
“
Common Stock
Outstanding
” shall have the meaning set forth in Section
4(b)(vi).
“
Conversion Date
”
shall have the meaning set forth in Section 4(a)(i).
“
Conversion Shares
”
means, collectively, the shares of Common Stock into which the shares of
Preferred Stock are convertible in accordance with the terms
hereof.
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended.
“
Holder
” shall have
the meaning given such term in Section 1 hereof.
“
Junior Securities
”
means the Common Stock and all other equity or equity equivalent securities of
the Corporation other than those securities that are (a) outstanding on the
Original Issue Date, and (b) which are explicitly senior in rights or
liquidation preference to the Preferred Stock.
“
Liquidation
” shall
have the meaning given such term in Section 3.
“
Notice of Conversion
”
shall have the meaning given such term in Section 4(a).
“
Original Issue Date
”
shall mean the date of the first issuance of any shares of the Preferred Stock
regardless of the number of transfers of any particular shares of Preferred
Stock and regardless of the number of certificates which may be issued to
evidence such Preferred Stock.
“
Person
” means a
corporation, an association, a partnership, an organization, a business, an
individual, a government or political subdivision thereof or a governmental
agency.
“
Principal Market
”
initially means the Over-the-Counter Bulletin Board and shall also include the
American Stock Exchange, NASDAQ Small-Cap Market, the New York Stock Exchange,
or the NASDAQ National Market, whichever is at the time the principal trading
exchange or market for the Common Stock, based upon share volume.
“
Securities Act
” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“
Set Price
” shall have
the meaning set forth in Section 4(b)(i).
“
Stated Value
” shall
have the meaning given such term in Section 1.
“
Subsidiary
” shall
have the meaning given to such term in the Purchase Agreement.
“
Trading Day
” shall
mean any day during which the Principal Market shall be open for
business.
“
VWAP
” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Principal Market, the
daily volume weighted average price of the Common Stock for such date (or the
nearest preceding date) on the Principal Market on which the Common Stock is
then listed or quoted as reported by Bloomberg Financial L.P. (based on a
Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time); (b) if
the Common Stock is not then listed or quoted on a Principal Market and if
prices for the Common Stock are then quoted on the OTC Bulletin Board, the
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not
then listed or quoted on the OTC Bulletin Board and if prices for the Common
Stock are then reported in the “Pink Sheets” published by the National Quotation
Bureau
Incorporated
(or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per share of the Common Stock so reported; or
(d) in all other cases, the fair market value of a share of Common Stock as
determined by an independent appraiser selected in good faith by the Purchasers
and reasonably acceptable to the Corporation.
Section
6.
Miscellaneous
.
(a) The
Corporation covenants that it will at all times reserve and keep available out
of its authorized and unissued shares of Common Stock solely for the purpose of
issuance upon conversion of Preferred Stock, each as herein provided, free from
preemptive rights or any other actual contingent purchase rights of persons
other than the Holders, not less than such number of shares of Common Stock as
shall be issuable upon the conversion of all outstanding shares of Preferred
Stock. The Corporation covenants that all shares of Common Stock that shall be
so issuable shall, upon issue, be duly and validly authorized, issued and fully
paid and nonassessable.
(b) Upon
a conversion hereunder the Corporation shall not be required to issue stock
certificates representing fractions of shares of Common Stock, but may if
otherwise permitted, make a cash payment in respect of any final fraction of a
share based on the VWAP at such time. If any fraction of a Conversion Share
would, except for the provisions of this Section, be issuable upon a conversion
hereunder, the Corporation shall pay an amount in cash equal to the VWAP
immediately prior to the applicable conversion multiplied by such
fraction.
(c) The
issuance of certificates for Common Stock on conversion of Preferred Stock shall
be made without charge to the Holders thereof for any documentary stamp or
similar taxes that may be payable in respect of the issue or delivery of such
certificate, provided that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate upon conversion in a name other than that of
the Holder of such shares of Preferred Stock so converted.
(d) To
effect conversions or redemptions, as the case may be, of shares of Preferred
Stock, a Holder shall not be required to surrender the certificate(s)
representing such shares of Preferred Stock to the Corporation unless all of the
shares of Preferred Stock represented thereby are so converted, in which case
the Holder shall deliver the certificate representing such share of Preferred
Stock promptly following the Conversion Date at issue. Shares of
Preferred Stock converted into Common Stock or redeemed in accordance with the
terms hereof shall be canceled and may not be reissued.
(e)
Any
and all notices or other communications or deliveries to be provided by the
Holders of the Preferred Stock hereunder, including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by facsimile
or
sent by a
nationally recognized overnight courier service, addressed to the attention of
the Chief Executive Officer of the Corporation addressed to
468
N. Camden Drive, 2nd Floor, Beverly Hills, California 90210; Fax: (310) _______
or to such other address or facsimile number as shall be specified in writing by
the Corporation for such purpose. Any and all notices or other
communications or deliveries to be provided by the Corporation hereunder shall
be in writing and delivered personally, by facsimile or sent by a nationally
recognized overnight courier service, addressed to each Holder at the facsimile
telephone number or address of such Holder appearing on the books of the
Corporation, or such other address as the Holder may designate by ten days
advance written notice to the other parties hereto. Any notice or other
communication or deliveries hereunder shall be deemed given and effective on the
earliest of (i) the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified in this
Section prior to 6:30 p.m. (Los Angeles, California, time) (with confirmation of
transmission), (ii) the date after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section later than 6:30 p.m. (Los Angeles, California, time)
on any date and earlier than 11:59 p.m. (Los Angeles, California, time) on such
date (with confirmation of transmission), (iii) five days after having been sent
by registered or certified mail, return receipt requested, postage prepaid, (iv)
one day after deposit with a nationally recognized overnight courier service,
specifying next day delivery, with written verification of service, or (v) upon
actual receipt by the party to whom such notice is required to be
given.
(f) For purposes hereof, a
share of Preferred Stock is outstanding until such date as the Holder shall have
received the Conversion Shares or redemption amount (as the case may be)
issuable or payable to it in accordance with this Certificate of
Designations.
(g) Except
as expressly provided herein, no provision of this Certificate of Designation
shall alter or impair the obligation of the Corporation, which is absolute and
unconditional, to pay the liquidated damages (if any) on, the shares of
Preferred Stock at the time, place, and rate, and in the coin or currency,
herein prescribed.
(h) If
a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or
destroyed, the Corporation shall execute and deliver, in exchange and
substitution for and upon cancellation of a mutilated certificate, or in lieu of
or in substitution for a lost, stolen or destroyed certificate, a new
certificate for the shares of Preferred Stock so mutilated, lost, stolen or
destroyed but only upon receipt of evidence of such loss, theft or destruction
of such certificate, and of the ownership hereof, and indemnity, if requested,
all reasonably satisfactory to the Corporation.
(i) Any
waiver by the Corporation or the Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any
other
provision
of this Certificate of Designation. The failure of the Corporation or
the Holder to insist upon strict adherence to any term of this Certificate of
Designation on one or more occasions shall not be considered a waiver or deprive
that party of the right thereafter to insist upon strict adherence to that term
or any other term of this Certificate of Designation. Any waiver must
be in writing.
(j) If
any provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and
circumstances. If it shall be found that any interest or other amount
deemed interest due hereunder violates applicable laws governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum permitted rate of interest.
(k) Whenever
any payment or other obligation hereunder shall be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business
Day.
(l) The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.
RESOLVED, FURTHER, that the Chairman,
the president or any vice-president, and the secretary or any assistant
secretary, of the Corporation be and they hereby are authorized and directed to
prepare and file a Certificate of Designation of Preferences, Rights and
Limitations in accordance with the foregoing resolution and the provisions of
Delaware law.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this 5th
day of February 2010.
/s/ Anthony Cataldo
Name:
Anthony Cataldo
Title:
Chief Executive Officer
ANNEX
A
NOTICE OF
CONVERSION
(To be
Executed by the Registered Holder in order to convert shares of Preferred
Stock)
The
undersigned hereby elects to convert the number of shares of Series H
Convertible Preferred Stock indicated below, into shares of common stock, $0.001
par value per share (the “
Common Stock
”), of
Oxis International, Inc., a Delaware corporation (the “
Corporation
”),
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by the
Corporation in accordance therewith. No fee will be charged to the Holder for
any conversion, except for such transfer taxes, if any.
Conversion
calculations:
Date
to Effect Conversion
-----------------------------------------
Number
of shares of Preferred Stock owned prior to Conversion
-----------------------------------------
Number
of shares of Preferred Stock to be Converted
-----------------------------------------
Stated
Value of shares of Preferred Stock to be Converted
-----------------------------------------
Number
of shares of Common Stock to be Issued
-----------------------------------------
Applicable
Set Price
-----------------------------------------
Number
of shares of Preferred Stock subsequent to Conversion
-----------------------------------------
[HOLDER]
By:_______________________
Name:
Title:
Exhibit
10.1
EXCHANGE
AGREEMENT
THIS
EXCHANGE AGREEMENT (this “Agreement”), dated as of February 10, 2010, is entered
into by and between Oxis International, Inc., a Delaware corporation (“Oxis
International”), and Theorem Group, LLC, a California limited liability company
(the “Stockholder”).
RECITALS
A. The
Stockholder, being the owner of all of the currently issued and outstanding
shares of Oxis International’s Series G Convertible Preferred Stock, par value
$.001 per share ("Series G Preferred"), currently owns 25,000 shares of Series G
Preferred;
B. The
documents issued by Oxis International evidencing the Series G Preferred contain
incorrect provisions, are ambiguous, and do not correctly reflect the terms
agreed to between Oxis International and the purchaser of the Series G
Preferred. In addition, a question has arisen as to the validity of the initial
issuance of the Series G Preferred, which shares were not created until several
months after the initial purchase and sale of the Series G
Preferred.
C. The
reports filed by Oxis International with the Securities and Exchange Commission
(the “SEC”) to disclose the terms of the Series G Preferred contain certain
inaccuracies, which inaccuracies create further uncertainties regarding the
rights of the Series G Preferred. For example, Oxis International
initially disclosed that the Series G Preferred was designated as “Series E
Convertible Preferred Stock,” that the holder thereof could not convert the
Series G Preferred into more than 4.9% of Oxis International’s issued and
outstanding common stock (the Certificate of Designation states that the
foregoing percentage is 9.9%), and that the Series G Preferred had voting rights
on an as converted basis multiplied by 10 (Oxis International subsequently
disclosed that the voting multiple was 100). Although most of these
inaccuracies have been corrected, there remains uncertainty as to certain of the
rights of the Series G Preferred.
D. Oxis
International and the Stockholder desire to correct the ambiguous and incorrect
provisions in the Certificate of Designation of the Series G Preferred, and
desire to clarify such corrected terms in the public reports filed by Oxis
International in its SEC reports.
E. Oxis
International has filed a Certificate of Designations with the Secretary of
State of the State of Delaware authorizing the issuance of a new series of Oxis
International’s preferred stock designated as “Series H Convertible Preferred
Stock” (the “Series H Preferred”), which Certificate of Designation corrects and
clarifies the incorrect and ambiguous terms of the Series G Preferred, but is
otherwise substantially similar to the Certificate of Designation of the Series
G Preferred.
F. In
order to correct and clarify the terms of the Series G Preferred, the
Stockholder desires to exchange all of its shares of Series G Preferred for an
equal number of newly issued shares of Series H Preferred, and Oxis
International desires to exchange the Series G Preferred
for an
equal number of newly issued shares of Series G Preferred, all on the terms and
conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto, and of
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
1.
SHARE
EXCHANGE
Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained herein, Oxis
International and the Stockholder hereby agree to correct the Series G Preferred
equity investment of the Stockholder in Oxis International as
follows:
1.1.
Exchange and Cancellation of
Series G Preferred
. Oxis International and the Stockholder
hereby agree to exchange all of the currently issued and outstanding shares of
Series G Preferred for new shares of Series H Preferred. In order to
effect the exchange of shares of Series G Preferred for Series H Preferred,
concurrently with the execution of this Agreement, the Stockholder is delivering
to Oxis International the stock certificate evidencing the 25,000 issued and
outstanding shares of Series G Preferred owned by the
Stockholder. The foregoing Series G Preferred stock certificate has
been duly endorsed by the Stockholder for transfer to, and cancellation by Oxis
International in a manner satisfactory to Oxis International. Oxis
International hereby acknowledges receipt of such stock certificate and agrees
to cancel all of the shares of Series G Preferred represented by the stock
certificate.
1.2.
Issuance of Series H
Preferred
. Concurrently with the execution of this Agreement,
and in exchange for the shares of Series G Preferred delivered by the
Stockholder to Oxis International for cancellation, Oxis International is
delivering to the Stockholder a new stock certificate representing 25,000 shares
of its new Series H Preferred. The new shares of Series H Preferred
have a $1.00 per share stated value, a per share conversion price equal the
lesser of (A) $0.01 and (B) 60% of the average of the 3 lowest trading prices
occurring at any time during the 20 trading days preceding conversion, and the
other rights, preferences and privileges contained in the “Certificate of
Designations--Series H Convertible Preferred Stock,” a certified copy of which
is attached hereto as
Exhibit
A
.
1.3.
Oxis International Form
8-K
. Attached hereto as
Exhibit B
is the form
of a Current Report on Form 8-K that Oxis International hereby agrees to file
with the SEC no later than the fourth business day following the date of
execution of this Agreement and the exchange of securities being effected
concurrently with such execution.
ARTICLE
2.
STOCKHOLDER
RELEASE
In
consideration of the issuance of the Series H Preferred and the other terms and
provisions of this Agreement, the Stockholder, on behalf of itself and on behalf
of its related entities (i.e., its shareholders, officers, directors,
administrators, principals, agents, attorneys, associates and other affiliates),
hereby, generally and unconditionally, releases, remises, acquits and forever
discharges Oxis International and its related entities (i.e., its officers,
directors, shareholders, principals, agents, attorneys, associates and other
affiliates), of and from any and all claims, demands, rights, actions, causes of
action, suits, contracts, debts, controversies, expenses, liabilities,
obligations, damages, losses, expenses (including, without limitation,
reasonable attorneys' fees), and allegations of any kind and character
whatsoever, whether legal, contractual, statutory, administrative or equitable
in nature or otherwise, direct or indirect, absolute, fixed or contingent, that
the Stockholder now owns, holds, has or claims to have, or owned at any time,
held, had or claimed to have had or may come to own, hold, have or claim to have
against Oxis International or its related entities arising out of or in
connection with the terms of the Series G Preferred and the Stockholder’s rights
thereunder.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF STOCKHOLDER
To induce
Oxis International to execute, deliver and perform this Agreement, the
Stockholder hereby represents and warrants to Oxis International as
follows:
3.1.
Authority Relative to this
Agreement
. This Agreement has been duly authorized by all
necessary action of the Stockholder and has been duly executed and delivered by
the Stockholder, and is a valid and binding agreement of such Stockholder,
enforceable in accordance with its terms, except as such enforcement is subject
to any applicable bankruptcy, insolvency, reorganization or other laws relating
to or affecting creditors' rights generally and general principles of
equity. Neither the execution nor the delivery of this Agreement nor
the consummation of the transactions contemplated hereby will conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in the imposition of any lien or encumbrance upon any
of the shares Series G Preferred that the Stockholder is hereby delivering to
Oxis International for cancellation.
3.2.
Title to the Shares of
Series G Preferred
. The Stockholder owns, of record and
beneficially, all 25,000 shares of Series G Preferred, free and clear of all
pledges, security interests, liens, charges, encumbrances, equities, claims and
options of whatever nature. No individual, corporation, entity or
person has any claim or interest in, to, or against any of the shares of Series
G Preferred owned by the Stockholder.
3.3.
Investment
Intent
. The Stockholder is acquiring the shares of Series H
Preferred for investment for its own account, not as a nominee or agent, and not
with a view to, or for resale in connection with, any distribution
thereof. The Stockholder understands that the
issuance
of the shares of Series H Preferred has not been, and will not be, registered
under the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the Stockholder’s investment intent and
the accuracy of the Stockholder’s representations as expressed
herein. The Stockholder is an “accredited investor” as that term is
defined in the rules and regulations promulgated under the Securities Act, and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the investment to be made in the
shares of Series H Preferred.
3.4.
Restrictions on Transfer;
Restrictive Legends
. The Stockholder understands that the
transfer of the Series H Preferred, as well as the shares of common stock
issuable upon the conversion of the Series H Preferred, is restricted by
applicable state and U.S. federal securities laws, and that the certificates
evidencing the shares of Series H Preferred have been imprinted, and the shares
of the underlying common stock will be imprinted, with the following (or
substantially equivalent) legend restricting transfer except in compliance
therewith:
THIS
SECURITY HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), SHALL HAVE BECOME EFFECTIVE WITH
RESPECT THERETO, OR (ii) IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO OXIS INTERNATIONAL, INC., AN EXEMPTION UNDER THE SECURITIES ACT
AND FROM ANY APPLICABLE STATE SECURITIES LAWS IS AVAILABLE.
The
legend set forth above shall be removed by Oxis International from the
aforementioned securities upon delivery to Oxis International of an opinion by
counsel, reasonably satisfactory to Oxis International, that a registration
statement under the Securities Act is at that time in effect with respect to the
legended security or that such security can be freely transferred in a public
sale without such a registration statement being in effect and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which Oxis International issued the shares of Series G Preferred and
Series H Preferred.
3.5.
Information
. The
Stockholder has been furnished with all materials that it has requested relating
to the business, finances and operations of Oxis International and materials
relating to the Series G Preferred, and has been afforded the opportunity to ask
questions of the principals of Oxis International. The Stockholder
understands that an investment in the Series G Preferred involves a high degree
of risk and that it has received such accounting, legal and tax advice as it
deems necessary to make an informed investment decision with respect to its
cancellation of the Series G Preferred and its acquisition of the Series G
Preferred.
ARTICLE
4.
REPRESENTATIONS
AND WARRANTIES OF OXIS INTERNATIONAL
To induce
the Stockholder to execute, deliver and perform this Agreement, Oxis
International hereby represents and warrants to each the Stockholder as
follows:
4.1.
Organization
. Oxis
International is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware with the power and authority to
conduct its business as it is now being conducted and to own and lease its
properties and assets.
4.2.
Authorization; Enforcement;
Compliance with Other Laws
. Oxis International has the
requisite corporate power and authority to enter into and perform this Agreement
and to issue the shares of Series H Preferred in accordance with the terms of
this Agreement. The execution and delivery of this Agreement by Oxis
International and the consummation by it of the transactions contemplated
hereby, including without limitation the issuance of the shares of Series H
Preferred, has been duly authorized by Oxis International's Board of Directors
and no further consent or authorization is required by Oxis International, its
Board of Directors or its stockholders. Neither the execution nor the
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, or result in a breach of the terms, conditions or
provisions of or constitute a default under any material agreement to which Oxis
International is a party. This Agreement has been duly executed and
delivered by Oxis International and constitutes the valid and binding obligation
of Oxis International, enforceable against Oxis International in accordance with
its terms, except as such enforcement is subject to any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and general principles of equity.
4.3.
Validity of
Issuance
. Upon the issuance of the shares of Series H
Preferred in accordance with the terms of this Agreement, the shares of Series H
Preferred shall be (i) validly issued, fully paid and non-assessable; (ii) free
from all taxes or liens; and (iii) the Stockholder will be entitled to all
rights accorded to a holder of such shares of Series H Preferred in the
Certificate of Designation of the Series H Preferred.
4.4.
Exempt
Transaction
. The issuance of the shares of Series H Preferred
hereunder shall constitute a transaction exempt from the registration
requirements of Section 5 of the Securities Act and the qualification or
registration requirements of any applicable state securities laws.
ARTICLE
5.
MISCELLANEOUS
5.1.
Survival of Representations,
Warranties
. Each of the representations, warranties,
agreements, covenants and obligations herein is material and shall be deemed to
have been relied
upon by
the other party or parties and shall survive after the date hereof and shall not
merge in the performance of any obligation by any party hereto.
5.2.
Entire
Agreement
. This Agreement, and the other certificates,
agreements, and other instruments to be executed and delivered by the parties in
connection with the transactions contemplated hereby, constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements with respect to the subject
matter hereof.
5.3.
Parties Bound by Agreement;
Successors and Assigns
. The terms, conditions, and obligations
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.
5.4.
Amendments and
Waivers
. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
Oxis International and the Stockholder.
5.5.
Attorney’s
Fees
. Should any party hereto retain counsel for the purpose
of enforcing, or preventing the breach of, any provision hereof including the
institution of any action or proceeding, whether by arbitration, judicial or
quasi-judicial action or otherwise, to enforce any provision hereof or for
damages for any alleged breach of any provision hereof, or for a declaration of
such party’s rights or obligations hereunder, then, whether such matter is
settled by negotiation, or by arbitration or judicial determination, the
prevailing party shall be entitled to be reimbursed by the losing party for all
costs and expenses incurred thereby, including reasonable attorneys’ fees for
the services rendered to such prevailing party.
5.6.
Counterparts
. This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall constitute the
same instrument.
5.7.
Headings
. The
headings of the Sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.
5.8.
Notices
. All
notices, requests, demands, claims, and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given: when received, if personally delivered; when transmitted,
if transmitted by telecopy, electronic or digital transmission method; three
business days after such notice, request, demand claim or other communication is
sent, if sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to (i) Oxis International at its corporate headquarters,
or (ii) the Stockholder at 2049 Century Park East, Suite 3630, Los Angeles,
California 90067. Any party may send any notice, request, demand,
claim, or other communication hereunder to the intended recipient at the address
set forth above using any other means, but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient. Any
party
may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.
5.9.
Governing
Law
. This Agreement shall be construed in accordance with and
governed by the laws of the State of California without giving effect to the
principles of choice of law thereof.
5.10.
Arbitration
. Any
dispute arising under or in connection with any matter related to this Agreement
or any related agreement shall be resolved exclusively by
arbitration. The arbitration shall be in conformity with and subject
to the then-applicable rules and procedures of the American Arbitration
Association or, at the election of the demanding party, any other form of
“alternative dispute resolution” procedure generally recognized in the State of
California; e.g., a reference pursuant to California Code of Civil Procedure
(“Code”) Section 638 or reliance upon Section 1280 et. seq. of the
Code. All parties agree to be (1) subject to the jurisdiction and
venue of the arbitration in the County of Los Angeles, State of California, (2)
bound by the decision of the arbitrator as the final decision with respect to
the dispute and (3) subject to the jurisdiction of the Superior Court of the
State of California for the purpose of confirmation and enforcement of any
award.
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first indicated above.
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OXIS
INTERNATIONAL, INC.,
a
Delaware corporation
By:
/s/
Anthony Calaldo
Name:
Anthony Cataldo
Title:
Chief Executive Officer
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THEOREM
GROUP, LLC,
a
California limited liability company
By:
/s/
Anshuman Dube
Its: Anshuman
Dube, Managing Member
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