|
x
|
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001.
|
|
¨
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|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
TO
.
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|
Page
|
||||
|
PART I
|
||||
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ITEM 1.
|
1
|
|||
|
ITEM 2.
|
6
|
|||
|
ITEM 3.
|
6
|
|||
|
ITEM 4.
|
6
|
|||
|
PART II
|
||||
|
ITEM 5.
|
7
|
|||
|
ITEM 6.
|
7
|
|||
|
ITEM 7.
|
10
|
|||
|
ITEM 8.
|
28
|
|||
|
PART III
|
||||
|
ITEM 9.
|
29
|
|||
|
ITEM 10.
|
29
|
|||
|
ITEM 11.
|
29
|
|||
|
ITEM 12.
|
29
|
|||
|
PART IV
|
||||
|
ITEM 13.
|
30
|
|||
|
31
|
||||
|
32
|
||||
|
2001
|
2000
|
|||||
|
United Kingdom
|
$
|
40,000
|
$
|
33,000
|
||
|
France
|
$
|
21,000
|
$
|
257,000
|
||
|
Germany
|
$
|
—
|
$
|
38,000
|
||
|
Japan
|
$
|
164,000
|
$
|
123,000
|
||
|
Spain
|
$
|
122,000
|
$
|
14,000
|
||
|
Other foreign countries
|
$
|
242,000
|
$
|
223,000
|
||
|
2001
|
2000
|
|||||||||||||||
|
4th
|
3rd
|
2nd
|
1st
|
4th
|
3rd
|
2nd
|
1st
|
|||||||||
|
High
|
.29
|
.25
|
.55
|
.78
|
1.125
|
2.250
|
5.000
|
10.000
|
||||||||
|
Low
|
.07
|
.07
|
.13
|
.22
|
.281
|
1.000
|
1.563
|
1.250
|
||||||||
|
|
MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.
|
|
2001
|
2000
|
|||||
|
Research assays and fine chemicals
|
$
|
1,653,000
|
$
|
1,429,000
|
||
|
Therapeutic drug monitoring assays
|
|
380,000
|
|
722,000
|
||
|
Medical instruments
|
|
655,000
|
|
1,226,000
|
||
|
bSOD for research and human use
|
|
117,000
|
|
—
|
||
|
Other
|
|
163,000
|
|
163,000
|
||
|
|
|
|
|
|||
|
Total sales
|
$
|
2,968,000
|
$
|
3,540,000
|
||
|
|
|
|
|
|||
|
/s/
|
King Griffin & Adamson P.C.
|
|
DE
|
LOITTE & TOUCHE LLP
|
|
2001
|
2000
|
|||||||
|
Revenue
|
$
|
2,968,000
|
|
$
|
3,540,000
|
|
||
|
Costs and expenses:
|
||||||||
|
Cost of revenue
|
|
2,430,000
|
|
|
3,059,000
|
|
||
|
Research and development
|
|
762,000
|
|
|
1,910,000
|
|
||
|
Sales, general and administrative
|
|
2,287,000
|
|
|
3,297,000
|
|
||
|
Write down of inventory and equipment
|
|
942,000
|
|
|
—
|
|
||
|
|
|
|
|
|
|
|||
|
Total costs and expenses
|
|
6,421,000
|
|
|
8,266,000
|
|
||
|
|
|
|
|
|
|
|||
|
Operating loss
|
|
(3,453,000
|
)
|
|
(4,726,000
|
)
|
||
|
Litigation settlement
|
|
(57,000
|
)
|
|
—
|
|
||
|
Interest income
|
|
29,000
|
|
|
180,000
|
|
||
|
Interest expense
|
|
(14,000
|
)
|
|
(90,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net loss
|
$
|
(3,495,000
|
)
|
$
|
(4,636,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net loss per share—basic and diluted
|
$
|
(0.36
|
)
|
$
|
(0.50
|
)
|
||
|
|
|
|
|
|
|
|||
|
Weighted average number of shares used in computation—basic and diluted
|
|
9,636,278
|
|
|
9,185,392
|
|
||
|
|
|
|
|
|
|
|||
|
Preferred Stock
|
Common Stock
|
Warrants
|
Additional paid-in
capital |
Accumulated deficit
|
Accumulated other comprehensive loss
|
Total shareholders’ equity
|
||||||||||||||||||||||||||
|
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||||||
|
Balances, January 1, 2000
|
1,036,925
|
|
$
|
10,000
|
|
7,928,784
|
|
$
|
8,000
|
$
|
—
|
|
$
|
52,756,000
|
$
|
(49,750,000
|
)
|
$
|
(335,000
|
)
|
$
|
2,689,000
|
|
|||||||||
|
Conversion of Series C preferred shares to common
|
(312,306
|
)
|
|
(3,000
|
)
|
90,221
|
|
|
3,000
|
|
—
|
|
||||||||||||||||||||
|
Sales of common shares and warrants
|
1,376,949
|
|
|
2,000
|
|
2,870,000
|
|
|
3,133,000
|
|
6,005,000
|
|
||||||||||||||||||||
|
Shares issued in connection with 1997 IMS business combination
|
100,000
|
|
||||||||||||||||||||||||||||||
|
Options exercised
|
64,944
|
|
|
63,000
|
|
63,000
|
|
|||||||||||||||||||||||||
|
Other
|
(440
|
)
|
||||||||||||||||||||||||||||||
|
Net loss
|
|
(4,636,000
|
)
|
|
(4,636,000
|
)
|
||||||||||||||||||||||||||
|
Foreign currency translation adjustment
|
|
(48,000
|
)
|
|
(48,000
|
)
|
||||||||||||||||||||||||||
|
|
|
|
||||||||||||||||||||||||||||||
|
Other comprehensive loss
|
|
(4,684,000
|
)
|
|||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Balances, December 31, 2000
|
724,619
|
|
|
7,000
|
|
9,560,458
|
|
|
10,000
|
|
2,870,000
|
|
|
55,955,000
|
|
(54,386,000
|
)
|
|
(383,000
|
)
|
|
4,073,000
|
|
|||||||||
|
Shares issued in connection with 1997 IMS business combination
|
100,000
|
|
||||||||||||||||||||||||||||||
|
Expiration of warrants
|
|
(1,200,000
|
)
|
|
1,200,000
|
|||||||||||||||||||||||||||
|
Net loss
|
|
(3,495,000
|
)
|
|
(3,495,000
|
)
|
||||||||||||||||||||||||||
|
Foreign currency translation adjustment
|
|
(45,000
|
)
|
|
(45,000
|
)
|
||||||||||||||||||||||||||
|
|
|
|
||||||||||||||||||||||||||||||
|
Other comprehensive loss
|
|
(3,540,000
|
)
|
|||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
Balances, December 31, 2001
|
724,619
|
|
$
|
7,000
|
|
9,660,458
|
|
$
|
10,000
|
$
|
1,670,000
|
|
$
|
57,155,000
|
$
|
(57,881,000
|
)
|
$
|
(428,000
|
)
|
$
|
533,000
|
|
|||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||
|
2001
|
2000
|
|||||||
|
Cash flows from operating activities:
|
||||||||
|
Net loss
|
$
|
(3,495,000
|
)
|
$
|
(4,636,000
|
)
|
||
|
Adjustments to reconcile net loss to cash used for operating activities:
|
||||||||
|
Depreciation and amortization
|
|
412,000
|
|
|
443,000
|
|
||
|
Litigation settlement
|
|
57,000
|
|
|
—
|
|
||
|
Write down of inventory and equipment
|
|
942,000
|
|
|
—
|
|
||
|
Loss on disposals of property, plant and equipment
|
|
15,000
|
|
|
73,000
|
|
||
|
Changes in assets and liabilities:
|
||||||||
|
Accounts receivable
|
|
353,000
|
|
|
567,000
|
|
||
|
Inventories
|
|
463,000
|
|
|
56,000
|
|
||
|
Prepaid and other current assets
|
|
37,000
|
|
|
(45,000
|
)
|
||
|
Accounts payable
|
|
(39,000
|
)
|
|
(501,000
|
)
|
||
|
Customer deposits
|
|
(131,000
|
)
|
|
174,000
|
|
||
|
Accrued payroll
|
|
(155,000
|
)
|
|
(31,000
|
)
|
||
|
Accrued liabilities
|
|
116,000
|
|
|
13,000
|
|
||
|
|
|
|
|
|
|
|||
|
Net cash used for operating activities
|
|
(1,425,000
|
)
|
|
(3,887,000
|
)
|
||
|
Cash flows from investing activities:
|
||||||||
|
Proceeds from sale of property, plant and equipment
|
|
19,000
|
|
|
—
|
|
||
|
Purchase of property, plant and equipment
|
|
(11,000
|
)
|
|
(160,000
|
)
|
||
|
Additions to patents
|
|
(164,000
|
)
|
|
(100,000
|
)
|
||
|
Other assets
|
|
—
|
|
|
(54,000
|
)
|
||
|
Other
|
|
—
|
|
|
11,000
|
|
||
|
|
|
|
|
|
|
|||
|
Net cash used for investing activities
|
|
(156,000
|
)
|
|
(303,000
|
)
|
||
|
Cash flows from financing activities:
|
||||||||
|
Proceeds from issuance of stock, net of related cost
|
|
—
|
|
|
5,868,000
|
|
||
|
Repayment of short-term notes
|
|
—
|
|
|
(361,000
|
)
|
||
|
Repayment of long-term debt
|
|
(212,000
|
)
|
|
(40,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net cash provided by (used for) financing activities
|
|
(212,000
|
)
|
|
5,467,000
|
|
||
|
Effect of exchange rate changes on cash
|
|
(45,000
|
)
|
|
(7,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net increase (decrease) in cash and cash equivalents
|
|
(1,838,000
|
)
|
|
1,270,000
|
|
||
|
Cash and cash equivalents—beginning of year
|
|
2,059,000
|
|
|
789,000
|
|
||
|
|
|
|
|
|
|
|||
|
Cash and cash equivalents—end of year
|
$
|
221,000
|
|
$
|
2,059,000
|
|
||
|
|
|
|
|
|
|
|||
|
Cash paid for interest
|
$
|
1,000
|
|
$
|
68,000
|
|
||
|
|
|
|
|
|
|
|||
|
Supplemental schedule of noncash operating and financing activities:
|
||||||||
|
Issuance of Common Stock in exchange for cancellation of notes and accrued interest
|
$
|
—
|
|
$
|
200,000
|
|
||
|
|
|
|
|
|
|
|||
|
Conversion of Preferred Stock into Common Stock
|
$
|
—
|
|
$
|
366,000
|
|
||
|
|
|
|
|
|
|
|||
|
Cancellation of note payable as a result of litigation settlement
|
$
|
63,000
|
|
$
|
—
|
|
||
|
|
|
|
|
|
|
|||
|
Issuance of note payable as a result of litigation settlement
|
$
|
120,000
|
|
$
|
—
|
|
||
|
|
|
|
|
|
|
|||
|
2001
|
2000
|
|||||
|
Raw materials
|
$
|
61,000
|
$
|
682,000
|
||
|
Work in process
|
|
135,000
|
|
398,000
|
||
|
Finished goods
|
|
96,000
|
|
191,000
|
||
|
|
|
|
|
|||
|
Total
|
$
|
292,000
|
$
|
1,271,000
|
||
|
|
|
|
|
|||
|
2001
|
2000
|
|||||||
|
Furniture and office equipment
|
$
|
285,000
|
|
$
|
348,000
|
|
||
|
Laboratory and manufacturing equipment
|
|
460,000
|
|
|
1,439,000
|
|
||
|
Leasehold improvements
|
|
63,000
|
|
|
57,000
|
|
||
|
|
|
|
|
|
|
|||
|
Property, plant and equipment, at cost
|
|
808,000
|
|
|
1,844,000
|
|
||
|
Accumulated depreciation and amortization
|
|
(706,000
|
)
|
|
(1,193,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Property, plant and equipment, net
|
$
|
102,000
|
|
$
|
651,000
|
|
||
|
|
|
|
|
|
|
|||
|
2001
|
2000
|
|||||
|
Non-interest uncollateralized note payable to shareholder due in monthly installments of $10,000 through August 2002
|
$
|
70,000
|
$
|
196,000
|
||
|
Other
|
|
24,000
|
|
53,000
|
||
|
|
|
|
|
|||
|
|
94,000
|
|
249,000
|
|||
|
Less current portion
|
|
92,000
|
|
99,000
|
||
|
|
|
|
|
|||
|
$
|
2,000
|
$
|
150,000
|
|||
|
|
|
|
|
|||
|
2001
|
2000
|
|||||||||||
|
Shares
|
Weighted average exercise price
|
Shares
|
Weighted average exercise price
|
|||||||||
|
Outstanding at beginning of year
|
1,802,486
|
|
$
|
2.53
|
1,034,582
|
|
$
|
2.92
|
||||
|
Granted
|
557,750
|
|
|
0.16
|
895,250
|
|
|
2.21
|
||||
|
Exercised
|
—
|
|
|
—
|
(64,944
|
)
|
|
0.97
|
||||
|
Forfeitures
|
(503,445
|
)
|
|
0.95
|
(62,402
|
)
|
|
6.07
|
||||
|
|
|
|
|
|
|
|
|
|||||
|
Outstanding at end of year
|
1,856,791
|
|
$
|
1.88
|
1,802,486
|
|
$
|
2.53
|
||||
|
|
|
|
|
|
|
|
|
|||||
|
Exercisable at end of year
|
1,382,361
|
|
$
|
2.06
|
825,137
|
|
$
|
3.08
|
||||
|
|
|
|
|
|
|
|
|
|||||
|
Range of exercise price
|
Shares
|
Weighted average
exercise price |
Weighted average
remaining life |
|||
|
$ 0.09—$ 0.88
|
1,039,374
|
$ 0.29
|
8.24 years
|
|||
|
$ 1.31—$ 1.91
|
442,750
|
$ 1.89
|
8.07 years
|
|||
|
$ 2.12—$ 4.53
|
198,367
|
$ 3.10
|
6.05 years
|
|||
|
$ 5.75—$ 8.45
|
130,300
|
$ 7.93
|
4.40 years
|
|||
|
$11.25—$17.50
|
46,000
|
$15.20
|
3.33 years
|
|
Range of
exercise price |
Shares
|
Weighted average
exercise price |
||
|
$ 0.09—$ 0.88
|
884,944
|
$ 0.31
|
||
|
$ 1.31—$ 1.91
|
122,750
|
$ 1.84
|
||
|
$ 2.12—$ 4.53
|
198,367
|
$ 3.10
|
||
|
$ 5.75—$ 8.45
|
130,300
|
$ 7.93
|
||
|
$11.25—$17.50
|
46,000
|
$15.20
|
|
2001
|
2000
|
|||||||
|
Net loss:
|
||||||||
|
As reported
|
$
|
(3,495,000
|
)
|
$
|
(4,636,000
|
)
|
||
|
Pro forma
|
$
|
(3,651,000
|
)
|
$
|
(4,911,000
|
)
|
||
|
Net loss per share – basic and diluted:
|
||||||||
|
As reported
|
$
|
(0.36
|
)
|
$
|
(0.50
|
)
|
||
|
Pro forma
|
$
|
(0.38
|
)
|
$
|
(0.53
|
)
|
||
|
Grants issued in
|
||||||
|
2001
|
2000
|
|||||
|
Dividend yield
|
0
|
%
|
0
|
%
|
||
|
Expected volatility
|
140
|
%
|
109
|
%
|
||
|
Risk-free interest rate
|
4.7
|
%
|
4.7
|
%
|
||
|
Expected lives
|
3 years
|
|
3 years
|
|
||
|
2001
|
2000
|
|||||||
|
United States taxes:
|
||||||||
|
Deferred tax assets:
|
||||||||
|
Federal net operating loss carryforward and capitalized research and development expenses
|
$
|
9,165,000
|
|
$
|
8,128,000
|
|
||
|
Federal R&D tax credit carryforward
|
|
553,000
|
|
|
676,000
|
|
||
|
State net operating loss carryforward and capitalized research and development expenses
|
|
1,007,000
|
|
|
816,000
|
|
||
|
Other
|
|
47,000
|
|
|
—
|
|
||
|
Deferred tax liabilities—book basis in excess of noncurrent assets acquired in purchase transactions
|
|
(142,000
|
)
|
|
(181,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net deferred tax assets
|
|
10,630,000
|
|
|
9,439,000
|
|
||
|
Valuation allowance
|
|
(10,630,000
|
)
|
|
(9,439,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net deferred taxes
|
$
|
—
|
|
$
|
—
|
|
||
|
|
|
|
|
|
|
|||
|
French taxes:
|
||||||||
|
Deferred tax assets—
|
||||||||
|
Net operating loss carryforward
|
$
|
3,604,000
|
|
$
|
3,563,000
|
|
||
|
Valuation allowance
|
|
(3,604,000
|
)
|
|
(3,563,000
|
)
|
||
|
|
|
|
|
|
|
|||
|
Net deferred taxes
|
$
|
—
|
|
$
|
—
|
|
||
|
|
|
|
|
|
|
|||
|
Year of expiration
|
United States
net operating loss carryforward |
R&D tax credit carryforward
|
French operating loss
carryforward |
||||||
|
2002
|
$
|
7,000
|
$
|
6,000
|
$
|
—
|
|||
|
2003
|
|
44,000
|
|
55,000
|
|
—
|
|||
|
2004
|
|
5,000
|
|
34,000
|
|
443,000
|
|||
|
2005
|
|
25,000
|
|
46,000
|
|
151,000
|
|||
|
2006
|
|
44,000
|
|
176,000
|
|
—
|
|||
|
2007-2021
|
|
9,346,000
|
|
236,000
|
|
—
|
|||
|
No expiration
|
|
—
|
|
—
|
|
9,234,000
|
|||
|
|
|
|
|
|
|
||||
|
$
|
9,471,000
|
$
|
553,000
|
$
|
9,828,000
|
||||
|
|
|
|
|
|
|
||||
|
Health products
|
Therapeutic development
|
Total
|
||||||||||
|
Year ended December 31, 2001:
|
||||||||||||
|
Revenues from external customers
|
$
|
2,968,000
|
|
$
|
—
|
|
$
|
2,968,000
|
|
|||
|
Interest income
|
|
9,000
|
|
|
20,000
|
|
|
29,000
|
|
|||
|
Interest expense
|
|
1,000
|
|
|
13,000
|
|
|
14,000
|
|
|||
|
Depreciation and amortization
|
|
261,000
|
|
|
151,000
|
|
|
412,000
|
|
|||
|
Net loss
|
|
(2,505,000
|
)
|
|
(990,000
|
)
|
|
(3,495,000
|
)
|
|||
|
Expenditures for long-lived assets
|
|
44,000
|
|
|
131,000
|
|
|
175,000
|
|
|||
|
As of December 31, 2001—
|
||||||||||||
|
Segment assets
|
|
1,273,000
|
|
|
448,000
|
|
|
1,721,000
|
|
|||
|
Health products
|
Therapeutic development
|
Total
|
||||||||||
|
Year ended December 31, 2000:
|
||||||||||||
|
Revenues from external customers
|
$
|
3,540,000
|
|
$
|
—
|
|
$
|
3,540,000
|
|
|||
|
Interest income
|
|
12,000
|
|
|
168,000
|
|
|
180,000
|
|
|||
|
Interest expense
|
|
75,000
|
|
|
15,000
|
|
|
90,000
|
|
|||
|
Depreciation and amortization
|
|
391,000
|
|
|
52,000
|
|
|
443,000
|
|
|||
|
Net loss
|
|
(2,368,000
|
)
|
|
(2,268,000
|
)
|
|
(4,636,000
|
)
|
|||
|
Expenditures for long-lived assets
|
|
97,000
|
|
|
163,000
|
|
|
260,000
|
|
|||
|
As of December 31, 2000—
|
||||||||||||
|
Segment assets
|
|
3,476,000
|
|
|
2,149,000
|
|
|
5,625,000
|
|
|||
|
2001
|
2000
|
|||||
|
Assays and fine chemicals
|
$
|
2,033,000
|
$
|
2,151,000
|
||
|
Medical instruments
|
|
655,000
|
|
1,226,000
|
||
|
SOD for human and research use
|
|
117,000
|
|
—
|
||
|
Other
|
|
163,000
|
|
163,000
|
||
|
|
|
|
|
|||
|
Total
|
$
|
2,968,000
|
$
|
3,540,000
|
||
|
|
|
|
|
|||
|
2001
|
2000
|
|||||
|
United States
|
$
|
2,379,000
|
$
|
2,852,000
|
||
|
United Kingdom
|
|
40,000
|
|
33,000
|
||
|
France
|
|
21,000
|
|
257,000
|
||
|
Germany
|
|
—
|
|
38,000
|
||
|
Japan
|
|
164,000
|
|
123,000
|
||
|
Spain
|
|
122,000
|
|
14,000
|
||
|
Other foreign countries
|
|
242,000
|
|
223,000
|
||
|
|
|
|
|
|||
|
$
|
2,968,000
|
$
|
3,540,000
|
|||
|
|
|
|
|
|||
|
2001
|
2000
|
|||||
|
United States
|
$
|
1,015,000
|
$
|
1,694,000
|
||
|
United Kingdom
|
|
—
|
|
18,000
|
||
|
|
|
|
|
|||
|
$
|
1,015,000
|
$
|
1,712,000
|
|||
|
|
|
|
|
|||
|
|
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE.
|
|
|
DIRECTORS, EXECUTIVE OFFICERS AND CONTROL PERSONS; COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT.
|
|
|
EXECUTIVE COMPENSATION
|
|
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
|
|
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
|
|
OXIS International, Inc.
Registrant
|
||
|
By:
|
/s/ R
AY
R. R
OGERS
|
|
|
Ray R. Rogers
President, Chief Executive Officer,
and Interim Principal Financial and Accounting Officer |
||
|
/s/ R
ICHARD
A. D
AVIS
Richard A. Davis
|
April 1, 2002
|
|||
|
/s/ T
IMOTHY
C. R
ODELL
Timothy C. Rodell
|
April 1, 2002
|
|||
|
/s/ T
HOMAS
M. W
OLF
Thomas M. Wolf
|
April 1, 2002
|
|||
|
/s/ M
ARVIN
S. H
AUSMAN
Marvin S. Hausman
|
April 1, 2002
|
|||
|
/s/ R
AY
R. R
OGERS
Ray R. Rogers
|
April 1, 2002
|
|||
|
/s/ S
TUART
S. L
ANG
Stuart S. Lang
|
April 1, 2002
|
|
Exhibit Number
|
Description of Document
|
Page
|
||
|
2(a)
|
Share Exchange Agreement by and among Innovative Medical Systems Corp., OXIS International, Inc and each of the shareholders who are signatories thereto
|
(1)
|
||
|
3(a)
|
Restated Certificate of Incorporation as filed in Delaware September 10, 1996 and as thereafter amended through March 1, 2002
|
|||
|
3(b)
|
Composite Bylaws of the Company effective September 7, 1994 and as amended through August 30, 2000
|
|||
|
4(a)
|
Forms of Common Stock and Warrant Purchase Agreement, Warrant to Purchase Common Stock, and Registration Rights Agreement Re Private Placement March-April, 2000
|
(2)
|
||
|
10(a)
|
OXIS International, Inc. Series B Preferred Stock Purchase Agreement dated July 18, 1995
|
(3)
|
||
|
10(b)
|
Series C Preferred Stock Subscription and Purchase Agreement (form); dated April 1996 (1,774,080 shares in total)
|
|||
|
10(c)
|
Form of Promissory Notes dated March 27, 1997—April 24, 1997
|
(4)
|
||
|
10(d)
|
Executive Separation and Employment Agreement dated April 3, 2000, between the Company and Ray R. Rogers
|
(5)
|
||
|
10(e)
|
Addendum to Executive Separation and Employment Agreement between OXIS International, Inc. and Ray R. Rogers dated August 1, 2001
|
(6)
|
||
|
21(a)
|
Subsidiaries of OXIS International, Inc.
|
|||
|
23(b)
|
Independent Auditors’ Consent.
|
|
(1)
|
|
Incorporated by reference to the Company’s Form 8-K Current Report, dated January 15, 1998.
|
|
(2)
|
|
Incorporated by reference to the Company’s Form 8-K Current Report dated March 3, 2000.
|
|
(3)
|
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 1995.
|
|
(4)
|
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 1997.
|
|
(5)
|
|
Incorporated by reference to the Company’s Form S-3 Registration Statement No. 333-40970 filed July 7, 2000 and effective December 22, 2000.
|
|
(6)
|
|
Incorporated by reference to the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001.
|
EXHIBIT 3(a)
INDEX
Restated Certificate of Incorporation filed in Delaware 9/10/96
Certificate of Designations, Preferences and Rights of Series E Convertible Preferred Stock filed in Delaware 12/9/96
Certificate of Amendment of Second (sic) Fourth Restated Certificate of Incorporation filed in Delaware 7/17/97
Certificate of Amendment of Certificate of Incorporation filed in Delaware 7/14/98
Certificate of Amendment of Restated Certificate of Incorporation filed in Delaware 10/20/98
Certificate of Designations, Rights and Preferences of Series F Convertible Preferred Stock filed in Delaware 3/1/02
SECOND (SIC) FOURTH RESTATED CERTIFICATE OF INCORPORATION OF
OXIS INTERNATIONAL, INC.
UNDER SECTION 242 AND SECTION 245 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
We, RAY R. ROGERS, Chairman of the Board, and JON S. PITCHER, Secretary, of OXIS INTERNATIONAL, INC., a Delaware corporation organized and existing under the General Corporation Law of the State of Delaware, HEREBY CERTIFY that:
1. The name of the corporation is OXIS INTERNATIONAL, INC.
2. The original Certificate of Incorporation was filed under the name of Diagnostic Data, Inc. on October 15, 1973.
3. On March 11, 1985, the corporation changed the name of the corporation to DDI Pharmaceuticals, Inc., and another name change to OXIS INTERNATIONAL, INC. was effected on September 7, 1994.
4. This Fourth Restated Certificate of Incorporation restates and integrates and further amends the provisions of the corporation's original Certificate of Incorporation.
5. This Fourth Restated Certificate of Incorporation has been duly adopted in accordance with Section 242 and Section 245 of the General Corporation Law of the State of Delaware and the text of such Fourth Restated Certificate of Incorporation is as follows:
Filed Delaware
9/10/96
FOURTH RESTATED CERTIFICATE OF INCORPORATION
OF
OXIS INTERNATIONAL, INC.
FIRST: The name of the corporation (hereinafter called "Company" or "Corporation") is OXIS INTERNATIONAL, INC.
SECOND: The registered office of the Company in the State of Delaware is located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, in the County of New Castle. The name of its registered agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Company is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
The Company is authorized to issue a total of Forty Million (40,000,000) shares of Common Stock, each of which shares of Common Stock has a par value of Fifty Cents ($0.50). Dividends may be paid on the Common Stock as and when declared by the Board of Directors, out of any funds of the Company legally available for the payment of such dividends, and each share of Common Stock will be entitled to one vote on all matters on which such stock is entitled to vote. All duly authorized One Dollar ($1.00) par value shares outstanding shall be deemed shares having a par value of Fifty Cents ($0.50).
The Company is authorized to issue a total of Fifteen Million (15,000,000) shares of Preferred Stock ($0.01 par value), each of which shares of Preferred Stock may be issued in one or more series of stock within the class of Preferred Stock. Each series may have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issue of such stock adopted by the Board of Directors pursuant to authority hereby expressly vested in it by the provisions of this Fourth Restated Certificate of Incorporation.
Common Stock of the Company except that the shares of such series shall have no voting power and that in the event of any liquidation, dissolution, or winding up of the Company, the holders of the Series A Preferred Stock shall be entitled to receive prior to and in preference to any distribution of any assets or surplus funds of the Company to the holders of Common Stock by reason of their ownership thereof, the amount of $.01 per share. If at any time and from time to time any holder of shares of Series A Preferred Stock owns less than 4.99% of the then outstanding shares of the Common Stock of the Company, a portion of such holder's shares of Series A Preferred Stock shall automatically convert into shares of the Company's Common Stock (on the basis of one share of Series A Preferred Stock converting into one fully paid and nonassessable share of Common Stock of the Company) until such holder owns 4.99% of the then outstanding shares of the Company's Common Stock.
(a) The holders of outstanding Series B Preferred Stock shall be entitled to receive in any fiscal year, when, as and if declared by the Board of Directors, out of any assets at the time legally available therefor, dividends at the rate of $0.115 per share of Series B Preferred Stock per annum before any dividend or distribution (other than pursuant to Section B.4) is paid on Common Stock. Such dividend or distribution may be payable annually or otherwise as the Board of Directors may from time to time determine. Dividends or distributions (other than dividends payable solely in shares of Common Stock or distributions pursuant to Section B.4) of up to $0.115 per share may be declared and paid upon shares of Common Stock in any fiscal year of the Corporation only if dividends shall have been paid on and declared and set apart upon all shares of Series B Preferred Stock at such annual rate in such year. After dividends or distributions of $0.115 per share have been declared and paid on the Common Stock in any fiscal year, all further dividends and distributions during such fiscal year shall be distributed among the holders of the Common Stock and the Series B Preferred Stock in proportion to the shares of Common Stock then held by them and the shares of Common Stock which they then have the right to acquire upon conversion of the shares of Series B Preferred Stock then held by them. The right to such dividends on shares of Series B Preferred Stock shall not be cumulative and no right shall accrue to holders of shares of Series B Preferred Stock by reason of the fact that dividends on said shares are not declared in any prior year, nor shall any undeclared or unpaid dividend bear or accrue interest.
(a) Each holder of shares of Series B Preferred Stock shall be entitled to the number of votes equal to the number of shares of Common Stock into which such holder's shares of Series B Preferred Stock could be converted on the record date for the vote or consent
of stockholders and, except as otherwise provided herein, shall have voting rights and powers equal to the voting rights and powers of the Common Stock. The holder of each share of Series B Preferred Stock shall be entitled to notice of any stockholders' meeting in accordance with the Bylaws of the Corporation and shall vote with holders of the Common Stock upon the election of directors and upon any other matter submitted to a vote of stockholders, except those matters required by law to be submitted to a class or series vote and except as otherwise provided in Section B.2(b)hereof. Fractional votes by the holders of Series B Preferred Stock shall not, however, be permitted and any fractional voting rights resulting from the above formula (after aggregating all shares into which shares of Series B Preferred Stock held by each holder could be converted) shall be rounded to the nearest whole number.
(b) The number of directors shall be set as provided in the Bylaws of the Corporation. So long as any shares of Series B Preferred Stock remain outstanding, the holders of the Series B Preferred Stock outstanding shall vote together with the Common Stock as a single class with respect to the election of directors.
(i) Before any holder of Series B Preferred Stock shall be entitled to convert the same into shares of Common Stock, he shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for such stock, and shall give written notice to the Corporation at such office that he elects to convert the same and shall state therein the name or names in which he wishes the certificate or certificates for shares of Common Stock to be issued. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series B Preferred Stock, a certificate or
certificates for the number of shares of Common Stock to which he shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of surrender of the shares of Series B Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date.
(ii) If a voluntary conversion is made in connection with an underwritten offering of securities pursuant to a registration statement filed pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the conversion may, at the option of any holder tendering shares of Series B Preferred Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common Stock upon conversion of the Series B Preferred Stock shall not be deemed to have converted such Series B Preferred Stock until immediately prior to the closing of such sale of securities.
them as aforesaid during such period, subject to all other adjustments called for during such period under this Section B.3(f) with respect to the rights of the holders of the Series B Preferred Stock.
or wind up; then, in connection with each such event, the Corporation shall send to the holders of Series B Preferred Stock:
(i) at least twenty (20) days' prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common Stock shall be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (c) and (d) above; and
(ii) In the case of the matters referred to in (c) and (d) above, at least twenty (20) days' prior written notice of the date when the same shall take place (and specifying the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
(a) In the event of any liquidation, dissolution or winding up of the Corporation whether voluntary or involuntary, the holders of the Series B Preferred Stock shall
be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the Corporation to the holders of Common Stock or any other shares of this corporation other than Series B Preferred Stock by reason of their ownership thereof, the amount of $2.33433 per share (as adjusted for any stock dividends, combinations or splits with respect to such shares), plus all declared or accrued but unpaid, dividends on such share, for each share of Series B Preferred Stock then held by them. If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Series B Preferred Stock shall be insufficient to permit the payment to such holders of the full aforesaid preferential amount, then the entire assets and funds of the Corporation legally available for distribution shall be distributed ratably among the holders of the Series B Preferred Stock in proportion to the preferential amount each such holder is otherwise entitled to receive.
(b) After the payment to the holders of the Series B Preferred Stock of the amounts set forth in Section B.4(a) above, the holders of the Common Stock shall be entitled to receive, prior and in preference to any distribution of any of the assets or surplus funds of the Corporation to the holders of the other capital stock of the Company by reason of their ownership thereof, an aggregate distribution equal to the total consideration received by the Corporation for the sale and issuance of all issued and outstanding Series B Preferred Stock, with each holder of Common Stock participating on a pro rata basis based on the number of shares of Common Stock they own. If upon the occurrence of such event, the assets and funds thus distributed among the holders of the Common Stock shall be insufficient to permit the payment to such holders of the full aforesaid preferential amount, then all assets and funds of the Corporation legally available for distribution after the payment to the holders of the Series B Preferred Stock of the amounts set forth in Section B.4(a) shall be distributed ratably among the holders of the Common Stock in proportion to the preferential amount each such holder is otherwise entitled to receive.
(c) After payments to (i) the holders of the
Series B Preferred Stock of the amounts set forth in Section B.4(a) above, and
(ii) the holders of the Common Stock of the amounts set forth in Section B.4(b)
above, the entire remaining assets and funds of the Corporation legally
available for distribution, if any, shall be distributed among the holders of
the Common Stock and the Series B Preferred Stock in proportion to the shares of
Common Stock then held by them and the shares of Common Stock which they then
have the right to acquire upon conversion of the shares of Series B Preferred
Stock then held by them.
Preferred Stock", par value $0.01 per share. The number of shares constituting such series shall be 3,076,923 and the rights, preferences, privileges and restrictions granted to or imposed upon the Series C Preferred Stock are as follows:
(a) The holders of outstanding Series C Preferred Stock shall be entitled to receive in any fiscal year, when, as and if declared by the Board of Directors, after the payment of dividends on Series B Preferred Stock, out of any assets at the time legally available therefor, dividends in amounts determined by the Corporation's Board of Directors before any other dividend or distribution (other than pursuant to Section C.4, or distributions with respect to the Series B Preferred Stock) is paid on Common Stock. Such dividend or distribution may be payable annually or otherwise as the Board of Directors may from time to time determine. The right to such dividends on shares of Series C Preferred Stock shall not be cumulative and no right shall accrue to holders of shares of Series C Preferred Stock by reason of the fact that dividends on said shares are not declared in any prior year, nor shall any undeclared or unpaid dividend bear or accrue interest.
(a) Right to Convert. Each share of Series C Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of issuance of such share at the office of the Corporation or any transfer agent for such stock, into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing $1.30 by the Series C Conversion Price, determined as hereinafter provided, in effect on the date the certificate is surrendered for conversion. The Series C Conversion Price shall initially be $1.30. Such initial Series C Conversion Price shall be adjusted as hereinafter provided.
(i) Before any holder of Series C Preferred Stock shall be entitled to convert the same into shares of Common Stock, he shall surrender the certificate or certificates therefor, duly endorsed, at the office of the Corporation or of any transfer agent for such stock, and shall give written notice to the Corporation at such office that he elects to convert the same and shall state therein the name or names in which he wishes the certificate or certificates for shares of Common Stock to be issued. The Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such holder of Series C Preferred Stock, a certificate or certificates for the number of shares of Common Stock to which he shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close of business on the date of surrender of the shares of Series C Preferred Stock to be converted, and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date.
(ii) If a voluntary conversion is made in connection with an underwritten offering of securities pursuant to a registration statement filed pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the conversion may, at the option of any holder tendering shares of Series C Preferred Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which event the person(s) entitled to receive the Common Stock upon conversion of the Series C Preferred Stock shall not be deemed to have converted such Series C Preferred Stock until immediately prior to the closing of such sale of securities.
number of shares of Common Stock receivable thereupon, the amount of securities of the Corporation which they would have received had their Series C Preferred Stock been converted into Common Stock on the date of such event and had they thereafter, during the period from the date of such event to and including the date of conversion, retained such securities receivable by them as aforesaid during such period, subject to all other adjustments called for during such period under this Section C.3(e) with respect to the rights of the holders of the Series C Preferred Stock.
(i) at least twenty (20) days' prior written notice of the date on which a record shall be taken for such dividend, distribution or subscription rights (and specifying the date on which the holders of Common Stock shall be entitled thereto) or for determining rights to vote, if any, in respect of the matters referred to in (c) and (d) above; and
(ii) in the case of the matters referred to in (c) and (d) above, at least twenty (20) days' prior written notice of the date when the same shall take place (and specifying the date on which the holders of Common Stock shall be entitled to exchange their Common Stock for securities or other property deliverable upon the occurrence of such event).
aggregation, the conversion would result in the issuance of a fraction of a share of Common Stock, the Corporation shall, in lieu of issuing any fractional share, pay the holder otherwise entitled to such fraction a sum in cash equal to the fair market value of such fraction on the date of conversion (as determined in good faith by the board of directors of the Corporation).
(a) The Corporation shall have the right, in its sole discretion, upon receipt of a Notice of Conversion pursuant to Section 4(d) or in the event of a Mandatory Conversion effected in accordance with Section 5 hereof, to redeem all or any portion of the Premium (as defined in Section 4(a) below) subject to such conversion for a sum of cash equal to the amount of the Premium being so redeemed. All cash redemption payments hereunder shall be paid in lawful money of the United States of America at such address for the holder as appears on the record books of the Corporation (or at such other address as such holder shall hereafter give to the Corporation by written notice). In the event the Corporation elects, pursuant to this Section 3(a), to redeem all or any portion of the Premium in cash and fails to pay such holder the applicable redemption amount to which such holder is entitled by depositing a check in the U.S. Mail to such holder within seven (7) business days of receipt by the Corporation of a Conversion Notice (in the case of a redemption in connection with an Optional Conversion) or May 15, 2001 (in the case of a redemption in connection with a Mandatory Conversion), the Corporation shall thereafter forfeit its right to redeem such Premium in cash and such Premium shall thereafter be converted into shares of Common Stock in accordance with Section 4 hereof.
(b) Each holder of Series D Preferred Stock
shall have the right to require the Corporation to provide advance notice to
such holder stating whether the Corporation will elect to redeem all or any
portion of the Premium in cash pursuant to the Corporation's redemption rights
discussed in Section D.3(a) as set forth herein. A holder may exercise such
right from time to time by sending notice (an "Election Notice") to the
Corporation, by facsimile, requesting that the Corporation disclose to such
holder whether the Corporation would elect to redeem any portion of the Premium
for cash in lieu of issuing Common Stock in accordance with Section 4 hereof if
such holder were to exercise his, her or its right of conversion pursuant to
Section 4. The Corporation shall, no later than the fifth (5th) business day
following receipt of an Election Notice, disclose to such holder, whether the
Corporation would elect to redeem any portion of a Premium in connection with a
conversion pursuant to a Conversion Notice delivered over the subsequent ten
(10) business day period. If the Corporation does not respond to such holder
within such five (5) business day period via facsimile, the Corporation shall,
with respect to any conversion pursuant to a Conversion Notice delivered within
the subsequent ten (10) business day period, forfeit its right to redeem such
Premium in accordance with Section D.3(a) and shall be required to convert such
Premium into shares of Common Stock in accordance with Section 4 hereof.
(c) Except as provided in Section D.3 and
Section D.4 hereof, the Series D Preferred Stock is not subject to redemption.
(d) Commencing May 15, 1998, at any time that the average of the closing bid prices for the Common Stock on NASDAQ, or on the principal securities exchange or other securities market on which the Common Stock is being traded, for the twenty (20) consecutive Trading Days ending one Trading Day prior to the date the Corporation provides the
holders a Redemption Notice (as defined herein) under this Section D.3 is equal
to or greater than 200% of the closing bid price for the Common Stock on NASDAQ
(or on the principal securities exchange or other securities market on which the
Common Stock is being traded) on the Closing Date (as defined herein) (the
"Optional Redemption Threshold Price"), the Corporation shall have the right, in
its sole discretion, to redeem ("Redemption at Corporation's Election") any or
all of the Series D Preferred Stock at the Redemption Price (as defined herein),
in accordance with the redemption procedures set forth below; provided, however,
that if the average closing bid price of the Common Stock for any ten (10)
consecutive Trading Days after a Redemption Notice is less than 75% of the
Optional Redemption Threshold Price, the Corporation's Redemption Notice shall
thereafter be rendered null and void and the Corporation shall not have the
right to redeem the Series D Preferred Stock pursuant to the terms of this
Section D.3 unless and until it delivers another Redemption Notice to the
holders of the Series D Preferred Stock in accordance with the provisions of
this Section D.3. "Trading Day" shall mean any day on which the Common Stock is
traded for any period on NASDAQ, or on the principal securities exchange or
other securities market on which the Common Stock is then being traded. If the
Corporation elects to redeem some, but not all, of the Series D Preferred Stock,
the Corporation shall redeem a pro-rata amount from each holder of Series D
Preferred Stock. Holders of Series D Preferred Stock may convert all or any part
of their shares of Series D Preferred Stock into Common Stock by delivering a
Notice of Conversion (as defined herein) to the Corporation at any time prior to
the Effective Date of Redemption (as defined herein).
(e) The "Redemption Price" with respect to each share of Series D Preferred Stock shall mean the amount equal to the sum of (i) the Stated Value thereof plus (ii) the amount equal to eight (8%) percent per annum of such Stated Value for the period beginning on the issuance of such share and ending on the Effective Date of Redemption hereunder.
(f) The Corporation shall effect each redemption under this Section D.3 by giving at least ninety (90) days (subject to extension as set forth below) prior written notice (the "Redemption Notice") to (i) the holders of Series D Preferred Stock selected for redemption at the address and facsimile number of such holder appearing in the Corporation's register for the Series D Preferred Stock and (ii) the Transfer Agent, which Redemption Notice shall be deemed to have been delivered three (3) business days after the Corporation's mailing (by overnight courier, with a copy by facsimile) of such notice. Such Redemption Notice shall indicate the number of shares of the holder's Series D Preferred Stock that have been selected for redemption, the date which such redemption is to become effective (the "Effective Date of Redemption") and the Redemption Price. The Corporation shall not be entitled to send any Redemption Notice and begin the redemption procedure unless it has (i) the full amount of the Redemption Price, in cash, available in a demand or other immediately available account in a bank or similar financial institution or (ii) immediately available credit facilities, in the full amount of the Redemption Price, with a bank or similar financial institution on the date the Redemption Notice is delivered to the applicable holder. Notwithstanding the foregoing, the ninety (90) day notice period referred to herein shall be extended with respect to any holder of Series D Preferred Stock by such number of days after the date of the Redemption Notice as such holder is not permitted to sell all of its Series D Preferred Stock pursuant to an effective
registration statement filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (or a successor statute) (the "1933 Act") or pursuant to Rule 144(k) under the 1933 Act.
The Redemption Price shall be paid to the holder of the Series D Preferred Stock being redeemed within 10 business days of the Effective Date of Redemption; provided, however, that the Corporation shall not be obligated to deliver any portion of the Redemption Price until either the certificates evidencing the Series D Preferred Stock being redeemed are delivered to the office of the Corporation or the Transfer Agent, or the holder notifies the Corporation or the Transfer Agent that such certificates have been lost, stolen or destroyed and delivers the documentation in accordance with Section D.4(d) hereof. Notwithstanding anything herein to the contrary, in the event that the certificates evidencing the Series D Preferred Stock redeemed are not delivered to the Corporation or the Transfer Agent prior to the 10th business day following the Effective Date of Redemption, the redemption of the Series D Preferred Stock pursuant to this Section D.3 shall still be deemed effective as of the Effective Date of Redemption and the Redemption Price shall be paid to the holder of Series D Preferred Stock redeemed within 5 business days of the date the certificates evidencing the Series D Preferred Stock redeemed are actually delivered to the Corporation or the Transfer Agent.
(g) If of any of the following events (each, a "Mandatory Redemption Event") shall occur:
Statement (as defined in the Registration Rights Agreement) prior to November 15, 1996 (other than because of issues raised by the SEC arising from the transactions contemplated by the Purchase Agreement or because of a change in the policy, procedures, interpretations, positions, practice or rules of the SEC made public after the date hereof so long as, in either case, the Corporation is using all commercially reasonable efforts to achieve the effectiveness of such Registration Statement) or lapses in effect (or sales otherwise cannot be made thereunder) for more than thirty (30) consecutive days or sixty (60) days in any twelve (12) month period after such Registration Statement becomes effective;
Then, upon the occurrence and during the continuation of any Mandatory
Redemption Event specified in subparagraphs (i) or (ii), at the option of the
holders of at least 50% of the then outstanding shares of Series D Preferred
Stock by written notice (the "Mandatory Redemption Notice") to the Corporation
of such Mandatory Redemption Event, the Corporation shall, and upon the
occurrence of any Mandatory Redemption Event specified in subparagraphs (iii) or
(iv), purchase the holder's shares of Series D Preferred Stock for an amount per
share equal to 125% multiplied by the Redemption Price in effect at the time of
the redemption hereunder.
Subject to the limitations contained in Section D.4(g), if the
Corporation fails to pay the Mandatory Redemption Amount for each share within
five (5) business days of written notice that such amount is due and payable,
then each holder of Series D Preferred Stock shall have the right at any time,
so long as the Mandatory Redemption Event continues to require the Corporation,
upon written notice, to immediately issue (in accordance with the terms of
Section D.4 below), in lieu of the Mandatory Redemption Amount, with respect to
each outstanding share of Series D Preferred Stock held by such holder, the
number of shares of Common Stock of the Corporation equal to the Mandatory
Redemption Amount divided by the Conversion Price then in effect.
(a) Each holder of shares of Series D Preferred
Stock may, at its option at any time and from time to time (whether or not the
Corporation has sent an Optional Conversion Notice to the holders of Series D
Preferred Stock pursuant to Section D.3), upon surrender of the certificates
therefor, convert any or all of its shares of Series D Preferred Stock into
Common Stock as follows (an "Optional Conversion"). Each share of Series D
Preferred Stock shall be convertible into such number of fully paid and
nonassessable shares of Common Stock as is determined by dividing (x) the sum of
(I) the Stated Value thereof, plus (II) unless the Corporation has timely
redeemed such Premium in cash in accordance with Section D.3, an amount equal to
eight percent (8%) per annum of such Stated Value for the period beginning on
the date of issuance of such share and ending on the Conversion Date (the
"Premium"), by (y) the then effective Conversion Price (as defined below);
provided, however, that in no event shall holders of shares of Series D
Preferred Stock be entitled to convert any such shares in excess of that number
of shares upon conversion of which the sum of (x) the number of shares of Common
Stock beneficially owned by the holder and its affiliates (other than shares of
Common Stock which may be deemed beneficially owned through the ownership of the
unconverted portion of the shares of Series D Preferred Stock and the
unexercised portion of the Warrants) and (y) the number of shares of Common
Stock issuable upon the conversion of the shares of Series D Preferred Stock
with respect to which the determination of this proviso is being made would
result in beneficial ownership by the holder and its affiliates of more than
4.9% of the outstanding shares of Common Stock. For purposes of the second
proviso to the immediately preceding sentence, beneficial ownership shall be
determined in accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended, and Regulation 13 D-G thereunder, except as otherwise provided
in clause (x) of such proviso.
(b) The "Conversion Price" shall be the lesser of (i) the Applicable Percentage (as hereinafter defined) of the average of the closing bid prices for the Common Stock on the NASDAQ National Market ("NASDAQ"), or on the principal securities exchange or other securities market on which the Common Stock is then being traded, for the five (5) consecutive Trading Days (as defined below) ending one Trading Day prior to the date (the "Conversion Date") the Conversion Notice is sent by a holder to the Corporation via facsimile (the "Variable Conversion Price"), and (ii) the average of the closing bid prices for the Common Stock on NASDAQ for the five (5) consecutive Trading Days ending on the Closing Date under the Purchase Agreement (the "Closing Date") (the "Fixed Conversion Price") (subject to equitable adjustments from time to time pursuant to the antidilution provisions of Section D.4(c) below). Applicable Percentage means (i) 100%, if the Conversion Date is within forty (40) days after the Closing Date, and (ii) 90%, if the Conversion Date is within eighty (80) days, but more than forty (40) days, after the Closing Date, and (iii) 75%, if the Conversion Date is more than eighty (80) days after the Closing Date.
(c) The Conversion Price shall be subject to adjustment from time to time as follows:
the record date for the determination of shareholders entitled to vote with respect thereto, and (ii) the provisions of this paragraph have been complied with. The above provisions shall similarly apply to successive reclassifications, consolidations, mergers, sales, transfers or share exchanges.
days (the "Delivery Period") after such surrender (or, in the case of lost,
stolen or destroyed certificates, after provision of agreement and
indemnification pursuant to subparagraph (i) above), deliver to or upon the
order of the holder (i) that number of shares of Common Stock for the portion of
the shares of Series D Preferred Stock converted as shall be determined in
accordance herewith and (ii) a certificate representing the balance of the
shares of Series D Preferred Stock not converted, if any. In addition to any
other remedies available to the holder, including actual damages and/or
equitable relief, the Corporation shall pay to a holder $250 in cash for the
first day beyond such Delivery Period that the Corporation fails to deliver
Common Stock issuable upon surrender of shares of Series D Preferred Stock with
a Notice of Conversion and $500 per day in cash for each day thereafter until
such time as the earlier of the date that the Corporation has delivered all such
Common Stock and the tenth day beyond such Delivery Period. Such cash amount
shall be paid to such holder by the fifth day of the month following the month
in which it has accrued. In the event the Corporation fails to deliver such
Common Stock prior to the expiration of the ten (10) business day period after
the Delivery Period for any reason (whether due to a requirement of law or a
stock exchange or otherwise), such holder shall be entitled to (in addition to
any other remedies available to the holder) Conversion Default Payments in
accordance with Section D.4(e) hereof beginning on the expiration of such ten
(10) business day period.
(e) A number of shares of the authorized but unissued Common Stock sufficient to provide for the conversion of the Series D Preferred Stock outstanding at the then current Conversion Price shall at all times be reserved by the Corporation, free from preemptive rights, for such conversion or exercise. If the Corporation shall issue any securities or make any change in its capital structure which would change the number of shares of Common Stock into which each share of the Series D Preferred Stock shall be convertible at the then current Conversion Price, the Corporation shall at the same time also make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved,
free from preemptive rights, for conversion of the outstanding Series D Preferred Stock on the new basis. If, at any time a holder of shares of Series D Preferred Stock submits a Conversion Notice, the Corporation does not have sufficient authorized but unissued shares of Common Stock available to effect such conversion in accordance with the provisions of this Section 4 (a "Conversion Default"), the Corporation shall issue to the holder all of the shares of Common Stock which are available to effect such conversion (including, with the Holder's written consent, any shares underlying outstanding Warrants ("Borrowed Shares")). The number of shares of Series D Preferred Stock included in the Notice of Conversion which exceeds the amount which is then convertible into available shares of Common Stock (including Borrowed Shares, if any) (the "Excess Amount") shall, notwithstanding anything to the contrary contained herein, not be convertible into Common Stock in accordance with the terms hereof until (and at the holder's option at any time after) the date additional shares of Common Stock are authorized by the Corporation to permit such conversion, at which time the Conversion Price in respect thereof shall be the lesser of (i) the Conversion Price on the Conversion Date Default (as defined below) and (ii) the Conversion Price on the Conversion Date elected by the holder in respect thereof. The Corporation shall pay to the holder payments ("Conversion Default Payments") for a Conversion Default in the amount of (N/365), multiplied by the sum of the Stated Value with respect to each share of Series D Preferred Stock, multiplied by the Default Amount (as defined below) on the first day of the Conversion Default (the "Conversion Default Date"), multiplied by .25, where (i) N = the number of days from the Conversion Default Date to the earlier of (A) the date (the "Authorization Date") that the Corporation authorizes a sufficient number of shares of Common Stock to effect conversion of the full number of shares of Series D Preferred Stock and (B) the date such share of Series D Preferred Stock is redeemed in accordance with Section D.4(d) and (ii) "Default Amount" means the Excess Amount plus the number of shares of Series D Preferred Stock that would not be convertible as a result of this Section D.4(e) but for the Borrowed Shares. The Corporation shall send notice to the holder of the authorization of additional shares of Common Stock, the Authorization Date and the amount of holder's accrued Conversion Default Payments. The accrued Conversion Default Payments for each calendar month shall be paid in cash or, subject to the limitations contained in Section D.4(g), shall be convertible into Common Stock at the Conversion Price, at the holder's option, as follows:
(i) In the event holder elects to take such payment in cash, cash payment shall be made to holder by the fifth day of the month following the month in which it has accrued; and
(ii) In the event holder elects to take such payment in Common Stock, the holder may convert such payment amount into Common Stock at the Conversion Price (as in effect at the time of Conversion) at any time after the fifth day of the month following the month in which it has accrued in accordance with the terms of this Section 4.
1. Nothing herein shall limit the holder's right to pursue actual damages for the Corporation's failure to maintain a sufficient number of authorized shares of Common Stock, and each holder shall have the right to pursue all remedies available at law or in equity (including a decree of specific performance and/or injunctive relief).
(f) Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Section 4, the Corporation, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Series D Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series D Preferred Stock, furnish or cause to be furnished to each holder a like certificate setting forth (i) such adjustment or readjustment, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon conversion of a share of Series D Preferred Stock.
(g) Notwithstanding anything contained herein to
the contrary, in no event shall the aggregate number of shares of Common Stock
issuable upon conversion or redemption of, or otherwise issuable with respect
to, all of the Series D Preferred Stock issued by the Corporation pursuant to
the Purchase Agreement (including, without limitation, all shares of Common
Stock issued with respect to such Series D Preferred Stock pursuant to Section
D.3 and Section D.4(e) hereof, but without taking into account any shares of
Common Stock issuable upon exercise of Warrants) plus all shares of Common Stock
issuable pursuant to Section 2(c) of the Registration Rights Agreement exceed
2,424,884 (subject to equitable adjustments from time to time pursuant to the
antidilution provisions of Section D.4(c) above). In the event the Corporation
is prohibited from issuing shares of Common Stock as a result of the operation
of this Section D.4(g), the provisions of Section 3, subparagraph (ii) of
Section D.4(d) and Section D.4(e) shall apply to the extent applicable.
Each share of Series D Preferred Stock issued and outstanding on May
15, 2001, automatically shall be converted into shares of Common Stock on such
date at the then effective Conversion Price in accordance with the provisions of
Section D.4 hereof (the "Mandatory Conversion").
The holders of the Series D Preferred Stock have no voting power whatsoever, except as otherwise provided by the Delaware General Corporation Law ("DGCL"), and in this Section D.6, and in Section D.7 below.
Notwithstanding the above, the Corporation shall provide each holder of Series D Preferred Stock with prior notification of any meeting of the shareholders (and copies of proxy materials and other information sent to shareholders). In the event of any taking by the Corporation of a record of its shareholders for the purpose of determining shareholders who are entitled to receive payment of any dividend or other distribution, any right to subscribe for, purchase or otherwise acquire (including by way of merger, consolidation or recapitalization) any share of any class or any other securities or property, or to receive any other right, or for the purpose of determining shareholders who are entitled to vote in connection with any proposed
sale, lease or conveyance of all or substantially all of the assets of the
Corporation, or any proposed liquidation, dissolution or winding up of the
Corporation, the Corporation shall mail a notice to each holder, at least ten
(10) days prior to the record date specified therein (or 30 days prior to the
consummation of the transaction or event, whichever is earlier), of the date on
which any such record is to be taken for the purpose of such dividend,
distribution, right or other event, and a brief statement regarding the amount
and character of such dividend, distribution, right or other event to the extent
known at such time.
To the extent that under the DGCL the vote of the holders of the Series D Preferred Stock, voting separately as a class or series as applicable, is required to authorize a given action of the Corporation, the affirmative vote or consent of the holders of at least a majority of the shares of the Series D Preferred Stock represented at a duly held meeting at which a quorum is present or by written consent of a majority of the shares of Series D Preferred Stock (except as otherwise may be required under the DGCL) shall constitute the approval of such action by the class. To the extent that under the DGCL holders of the Series D Preferred Stock are entitled to vote on a matter with holders of Common Stock, voting together as one class, each share of Series D Preferred Stock shall be entitled to a number of votes equal to the number of shares of Common Stock into which it is then convertible using the record date for the taking of such vote of shareholders as the date as of which the Conversion Price is calculated. Holders of the Series D Preferred Stock shall be entitled to notice of (and copies of proxy materials and other information sent to shareholders) all shareholder meetings or written consents with respect to which they would be entitled to vote, which notice would be provided pursuant to the Corporation's by-laws and the DGCL.
So long as shares of Series D Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the DGCL) of the holders of at least a majority of the then outstanding shares of Series D Preferred Stock:
(a) alter or change the rights, preferences or privileges of the Series D Preferred Stock or any other class or series of capital stock of the Corporation so as to affect adversely the Series D Preferred Stock;
(b) create any new class or series of capital stock having a preference over the Series D Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation ("Senior Securities");
(c) create any new class or series of capital stock ranking pari passu with the Series D Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation (as previously defined in Section D.1 hereof, "Pari Passu Securities");
(d) increase the authorized number of shares of Series D Preferred Stock.
(e) do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders of shares of the Series D Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended); or
(f) issue after the Closing Date any Senior Securities or Pari Passu Securities (other than Common Stock).
In the event holders of at least a majority of the then outstanding
shares of Series D Preferred Stock agree to allow the Corporation to alter or
change the rights, preferences or privileges of the shares of Series D Preferred
Stock, pursuant to subsection (a) above, so as to affect the Series D Preferred
Stock, then the Corporation will deliver notice of such approved change to the
holders of the Series D Preferred Stock that did not agree to such alteration or
change (the "Dissenting Holders") and Dissenting Holders shall have the right
for a period of twenty (20) days to convert pursuant to the terms of this
Section D of the Fourth Restated Certificate of Incorporation of the Corporation
as they exist prior to such alteration or change or continue to hold their
shares of Series D Preferred Stock.
Each holders of Series D Preferred Stock shall send a copy of all notices to be given to the Corporation under this Section D of the Second Restated Certificate of Incorporation to such one (1) counsel as the Corporation may designate in writing at least five (5) business days prior to such holder sending such notice. For purposes of this Section D.8, the initial counsel designated by the Corporation for receiving copies of notices under this Section D of the Fourth Restated Certificate of Incorporation shall be Jackson Tufts Cole & Black, LLP, 60 South Market Street, San Jose, California 95113, Attention: Richard Scudellari, Telecopier (408) 998-4889.
FIFTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, alter or repeal the by-laws of the Company, subject always to the right of the stockholders entitled to vote with respect thereto to adopt additional bylaws and to alter or repeal by-laws adopted by the Board of Directors, and to provide in connection therewith that any by-law adopted or altered by the stockholders may be altered or repealed only by a vote of a designated proportion of the stockholders.
SIXTH:
(A) If with respect to any of the following transactions, a stockholder vote is required by law or by any other rules or policies to which the Company may then be subject, the affirmative vote of two-thirds of the outstanding stock entitled to vote thereon, given in person or by proxy, at a meeting called for the purpose shall be necessary.
(a) To approve (i) the lease, sale, exchange,
transfer or other disposition by the Company of all or substantially
all, of its assets or business to a related company, or an affiliate of
a related company, or (ii) the consolidation of the Company with or its
merger into a related company or an affiliate of a related company, or
(iii) the merger into the Company or a subsidiary of the Company of a
related company or an affiliate of a related company, or (iv) an
acquisition of substantially all of the assets of a corporation or of
the securities representing such assets, in which the Company, or any
subsidiary of the Company, is the acquiring corporation and voting
shares of the Company are issued or transferred to a related company or
an affiliate of a related company, or to stockholders of a related
company, or an affiliate of a related company, or an associated person.
(b) To approve any agreement, contract, or other arrangement with a related company or an affiliate of a related company, or an associated person providing for any of the transactions described in subparagraph (a) above; or
(c) To effect any amendment of the Certificate of Incorporation which changes the provisions of this Article Sixth:
1. For the purpose of this Article Sixth, (i) a "related company" in respect of a given transaction, shall be any person, partnership, corporation,
or firm (except a subsidiary of the Company at least a majority of whose stock is owned by the Company) which, together with its affiliates and associated persons owns of record or beneficially, directly or indirectly, in excess of 10% of the outstanding shares of the Company, entitled to vote upon such transaction, as of the record date used to determine the stockholders of the Company entitled to vote upon such transaction; (ii) an "affiliate" of a related company shall be any individual, joint venture, trust, partnership, or corporation which, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the related company; and (iii) an "associated person" of a related company shall be any officer or director or any beneficial owner, directly or indirectly, of 10% or more of any class of equity security of such related company or any of its affiliates.
The determination of the Board of Directors of the Company, based on information known to the Board of Directors and made in good faith, shall be conclusive as to whether any person, partnership, corporation or firm is a related company or affiliate or associated person as defined in this Article Sixth.
(B) If the provisions of this Article Sixth are applicable to a transaction and if the provisions of Section 262 of the Delaware General Corporation Law, or any similar provision hereinafter enacted, would be applicable thereto but for the provisions of subparagraph (k) thereof, then the stockholders of the Company shall be entitled to the rights granted by Section 262 of the Delaware General Corporation Law or any similar provision hereafter enacted notwithstanding the exemptions contained in subparagraph (k) of such section.
(C) If the provisions of this Article Sixth are applicable to a transaction, but the provisions of Section 262 of the Delaware General Corporation Law are not applicable thereto, notwithstanding the elimination of the exemptions contained in subparagraph (k) of such Section, then a holder of dissenting shares with respect to such transaction shall be entitled to receive from the Company, payment for the value of his stock on the effective date of the transaction, excluding any appreciation or depreciation in value from the expectation or accomplishment of the transaction.
(a) To qualify as a holder of dissenting shares, a stockholder shall, before the taking of the vote on the transaction, file with the Company a written objection to such proposed transaction. Following the effective date of such transaction, the Company shall notify each stockholder who has filed such written objection and whose shares were not voted in favor of the transaction, that the transaction has become effective. The notice shall be sent by registered or certified mail, return receipt requested, addressed to the stockholder at his address as it appears on the records of the Company. Such stockholder shall, within 20 days after the mailing of the notice, demand, in writing, from the Company, payment of the value of his stock. The demand shall state the number and class of shares held of record by the stockholder which he demands that the Company purchase and shall contain a request that the Company state what it claims to be the fair market value of these shares. In addition, within 20 days after the date of mailing of such notice, such stockholder shall submit to the Company at its principal office or at the office of any transfer agent thereof, his certificate representing the shares which he demands
that the Company purchase to be stamped or endorsed with a statement that the shares are dissenting shares or to be exchanged for a certificate of appropriate denomination to be so stamped or endorsed. Upon subsequent transfers of such dissenting shares on the books of the Company, the new certificates issued therefor shall bear a like statement, together with the name of the original dissenting holder of the shares.
(b) As used in this paragraph (C) "dissenting shares" means shares which come within all the following descriptions:
1. Which were held of record on the date for the determination of stockholders entitled to vote at the meeting at which the transaction was approved and the holder thereof filed written objection thereto with the Company before the taking of the vote thereon and did not vote in favor thereof.
2. Which the holder has demanded that
the Company purchase at their fair market value in accordance with subparagraph
(a) above.
3. Which the holder has submitted for endorsement in accordance with subparagraph (a) above.
(c) Within five days after receipt of a copy of a demand for purchase of shares as dissenting shares, the Company shall, by registered or certified mail, return receipt requested, addressed to the stockholder at his address as it appears on the records of the Company, mail a written offer to purchase the shares if they are determined to be dissenting shares, at a price deemed by the Company to represent their fair market value.
(d) Payment of the fair market value of the dissenting shares shall be made within 30 days after the amount thereof has been agreed upon, upon surrender of the certificates therefor unless provided otherwise by agreement.
(e) If the Company shall deny that the shares are dissenting hares, or the Company shall fail to make an offer for the shares, or the Company and the stockholder fail to agree upon the fair market value of the shares, the Company or any stockholder demanding purchase of his shares as dissenting shares, within four months after the date upon which the Company mailed notice that the transaction was effective, but not thereafter, may make written demand to the American Arbitration Association, Los Angeles, California, for a determination of the value of the dissenting shares or of whether the shares are dissenting shares, or both, in accordance with the Commercial Arbitration Rules of such Association, which arbitration shall be conducted in Los Angeles, California. If such arbitration is commenced by the Company, there shall be named therein all stockholders who have theretofore qualified as dissenting stockholders. If such arbitration is commenced by any one or more of such stockholders, the Company shall be permitted to join therein all stockholders who have theretofore qualified as dissenting stockholders. The arbitration shall be conducted before a panel of three arbitrators selected in accordance with the Commercial Arbitration Rules of the America Arbitration Association, and such panel of arbitrators shall determine those stockholders who have complied
with the provisions of this Paragraph (C), and who have become entitled to the valuation of any payment for their shares and the value of such dissenting shares. Each stockholder who is a party to such arbitration, and the Company, shall be afforded reasonable opportunity to submit pertinent evidence on the value of the shares. Upon the determination of the value of the stock and of the stockholders entitled to payment therefor by the panel of arbitrators, such panel of arbitrators shall direct the payment of such value to the stockholders entitled thereto by the Company upon transfer to it of the certificates representing such stock, which determination may be enforced by a court of competent jurisdiction in the State of New York.
(f) The costs of the arbitration shall be assessed or apportioned as the panel of arbitrators considers equitable.
(g) All action required or permitted to be taken by the panel of arbitrators shall be taken by the majority decision of the members of the panel of arbitrators.
(h) Except as expressly limited in this Paragraph (C), holders of dissenting shares continue to have all the rights and privileges incident to those shares until the fair market value of their shares is agreed upon or determined. A holder of dissenting shares may not withdraw his dissent or demand for payment unless the Company, by its Board of Directors, consents thereto.
(i) Dissenting shares lose their status as dissenting hares, and the holders thereof cease to be entitled to require the Company to purchase their shares upon the happening of any of the following
1. The Company abandons the transaction which the dissenting stockholder did not approve.
2. The shares are surrendered for conversion into shares of another class in accordance with the Certificate of Incorporation, or transferred prior to their submission for endorsement in accordance with subparagraph (a) above.
3. The holder of the dissenting shares and the Company do not agree upon the status of the shares as dissenting shares and upon the purchase price of the shares, and the holder of the dissenting shares does not file a written demand for arbitration or intervene in an arbitration or is not made a party to an arbitration in respect to dissenting shares within four months after the date on which the notice of the effective date of the transaction is mailed to the stockholders.
(j) If litigation is instituted to test the sufficiency or regularity of the votes of the stockholders in authorizing a transaction, the proceeding for compensation of any holder of dissenting shares shall be suspended until final determination of such litigation.
SEVENTH: The Company shall indemnify any and all persons whom it has the power to indemnify pursuant to the General Corporation Law of Delaware against any and all expenses,
judgments, fines, amounts paid in settlement, and any other liabilities to the fullest extent permitted by such law and may at the discretion of the Board of Directors, purchase and maintain insurance, at its expense, to protect itself and such persons against any expense, judgment, fine, amount paid in settlement or other liability, whether or not the Company would have the power to so indemnify such person under the General Corporation Law of Delaware.
EIGHTH: A director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Company shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of this Article by the stockholders of the Company shall not adversely affect any right or protection of a director of the Company existing at the time of such repeal or modification.
IN WITNESS WHEREOF, OXIS INTERNATIONAL,INC., a Delaware corporation has caused this Fourth Restated Certificate of Incorporation to be signed by its Chairman of the Board and attested by its Secretary, this 26th day of August, 1996.
OXIS INTERNATIONAL, INC., a
Delaware corporation
/s/ RAY R. ROGERS
----------------------------------
Ray R. Rogers,
Chairman of the Board
ATTEST:
By: /s/ JON S. PITCHER
-----------------------------
Jon S. Pitcher,
Secretary
|
EXHIBIT A
NOTICE OF CONVERSION
(To be executed by the Registered Holder
in order to Convert the Series D Preferred Stock)
The undersigned hereby irrevocably elects to convert shares of Series D Preferred Stock, represented by stock certificate No.(s). (the "Preferred Stock Certificates") into shares of common stock ("Common Stock") of OXIS International, Inc. (the "Corporation") according to the conditions of the Corporation's Certificate of Incorporation with respect to Series D Preferred Stock, as of the date written below. If securities are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates. No fee will be charged to the Holder for any conversion, except for transfer taxes, if any. A copy of each Preferred Stock Certificate is attached hereto (or evidence of loss, theft or destruction thereof).
The undersigned represents and warrants that all offers and sales by the undersigned of the securities issuable to the undersigned upon conversion of Series D Preferred Stock shall be made pursuant to registration of the securities under the Securities Act of 1933, as amended (the "Act"), or pursuant to an exemption from registration under the Act.
Date of Conversion:______________________________
Applicable Conversion Price:_____________________
Number of Shares of Common Stock to be Issued:_______________________
Signature:_______________________________________
Name:____________________________________________
Address:_________________________________________
* The Corporation is not required to issue shares of Common Stock until the original Series D Preferred Stock Certificate(s) (or evidence of loss, theft or destruction thereof) to be converted are received by the Corporation or its Transfer Agent. The Corporation shall issue and deliver shares of Common Stock to an overnight courier not later than two (2) business days following receipt of the original Preferred Stock Certificate(s) to be converted, and shall make payments
pursuant to the Certificate of Incorporation for the number of business days such issuance and delivery is late.
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
of
SERIES E CONVERTIBLE PREFERRED STOCK
of
OXIS INTERNATIONAL, INC.
Pursuant to Section 151 of the Delaware General Corporation Law
OXIS International, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), hereby certifies that the following resolutions were adopted by the Board of Directors of the Corporation pursuant to authority of the Board of Directors as required by Section 151 of the Delaware General Corporation Law:
RESOL VED, that pursuant to the authority granted to and vested in the Board of Directors of this Corporation {the "Board of Directors" or the "Board") in accordance with the provisions of its Restated Certificate of Incorporation, the Board of Directors hereby authorizes a series of the Corporation's previously authorized Preferred Stock, par value $.01 per share (the "Preferred Stock'.), an hereby states the designation and number of shares, and fixes the relative rights, preferences, privileges, powers and restrictions thereof as follows:
Series E Convertible Preferred Stock:
I. DESIGNATION AND AMOUNT
The designation of this series, which consists of 3,000 shares of Preferred Stock, is Series E Convertible Preferred Stock (the "Series E Preferred Stock") and the stated value shall be Five Hundred Dollars ($500) per share (the "Stated Value").
In the event of any distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of Series E Preferred Stock shall participate on an equal basis with the holders of the Corporation's Common Stock, par value $.50 per share (the "Common Stock"), as if the series E Preferred Stock had converted into Common Stock.
The Series E Preferred Stock will bear no dividends, and the holders of the Series E Preferred Stock sha11 not be entitled to receive dividends on the Series E Preferred Stock.
Filed Delaware
12/9/96
IV. [INTENTIONALLY OMITTED]
A. Except as provided in Article V.B hereof, the Series E Preferred Stock is not subject to redemption.
B. If any of the following events (each, a "Mandatory Redemption Event") shall occur:
Then. upon the occurrence and during the continuation of any Mandatory
Redemption Event specified in subparagraph (i) or (ii), at the option of the
holders of at least 50% of the then outstanding shares of Series E Preferred
Stock by written notice (the "Mandatory Redemption Notice") to the Corporation
of such Mandatory Redemption Event, the Corporation shall, and upon the
occurrence of any Mandatory Redemption Event specified in subparagraphs (iii) or
(iv) the Corporation shall, without the necessity of any such notice, purchase
the holder's shares of Series E Preferred Stock for an amount per share equal to
(y) 125% multiplied by the Redemption Price in effect at the time of the
redemption hereunder (the "Mandatory Redemption Amount") with respect to the
events specified in subparagraphs (ii), (iii) and (iv) above and (z) with
respect to the event specified in subparagraph (i) above, 1he greater of (yy)
the Mandatory Redemption Amount or (zz) the Redemption Price multiplied by the
ratio of the highest closing bid price of the Common Stock for the ten (10)
business days following the Conversion Date (numerator) and the "Conversion
Price" (denominator) as defined in Article VI.B. The "Redemption Price" with
respect to each share of Series E Preferred Stock shall mean the amount equal to
the Stated Va1ue thereof.
Subject to the limitations contained in Article VI.G, if the Corporation fails to pay the Mandatory Redemption Amount for each share within fifteen (15) business days of written notice that such amount is due and payable, then each holder of Series E Preferred Stock shall have the right at any time (so long as the Mandatory Redemption Event continues in effect) to require the Corporation, upon written notice, to immediately issue (in accordance with the terms of Article VI below), in lieu of the Mandatory Redemption Amount, with respect to each outstanding share of Series E Preferred Stock held by such holder, the number of shares of Common Stock of the Corporation equal to the Mandatory Redemption Amount divided by the Conversion Price then in effect.
A. Each holder of shares of Series E Preferred Stock may, at its option at any time and from time to time after the earlier of (i) April 9, 1997 or (ii) thirty (30) days following the closing of a public offering of Common Stock by the Corporation, upon surrender of the certificates therefore, convert any or all of its shares of Series E Preferred Stock into Common Stock as follows (an "Optional Conversion"). Each share of Series E Preferred Stock shall be convertible into such number of fully paid and nonassessable shares of Common Stock as is determined by dividing (x) the Stated Value thereof by (y) the then effective Conversion Price (as defined below); provided, however, that in no event shall holders of shares of Series E Preferred Stock be entitled to convert any such shares in excess of Common Stock beneficially owned by the holder and its affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the shares of Series E Preferred Stock) and (yy) the number of shares of Common Stock issuable upon conversion of the shares of Series E Preferred Stock with respect to which the determination of this proviso is being made would result in beneficial ownership by the holder and its affiliates of more than 4.9% or the outstanding shares of Common Stock. For purposes of the second proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and Regulation 13 D-G thereunder, except as otherwise provided in clause (xx) of such proviso.
B. The "Conversion Price" shall be the lesser (i) the Applicable
Percentage (as hereinafter defined) of the average of the closing bid prices for
the Common Stock on the NASDAQ National Market ("NASDAQ"), or on the principal
securities exchange or other securities market on which the Common Stock is then
being traded, for the five (5) consecutive Trading Days ending one Trading Day
prior to the date (the "Conversion Date") the Conversion Notice is sent by a
holder to the Corporation via facsimile (the "Variable Conversion Price"), and
(ii) $2.00 (the "Fixed Conversion Price") (subject to equitable adjustments from
time to time pursuant to the antidilution provisions of Article VI.C. below).
"Applicable Percentage" means 75%. "Trading Day" shall mean any day on which the
Common Stock is traded for any period on NASDAQ, or on the principal securities
exchange or other securities market on which the Common Stock is then being
traded.
C. The Conversion Price shall be subject to adjustment from time to time as follows:
D. In order to convert Series E Preferred Stock into full shares of Common Stock, a holder shall: (i) fax a copy of the fully executed notice of conversion in the form attached hereto ("Notice of Conversion") to the Corporation at the office of the Corporation for the Series E Preferred Stock that the holder elects to convert the same, which notice shall specify the number of shares of Series E Preferred Stock to be converted, the applicable Conversion Price and a calculation of the number of shares of Common Stock issuable upon such conversion (together with a copy of the first page of each certificate to be converted) prior to Midnight, New York City time (the "Conversion Notice Deadline") on the date of conversion specified on the Notice of Conversion; and (ii) surrender the original certificates representing the Series E Preferred Stock being converted (the "Preferred Stock Certificates"), duly endorsed, along with a copy of the Notice of Conversion as soon as practicable thereafter to the office of the Corporation for the Series E Preferred Stock; provided. however, that the Corporation shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion unless either the Preferred Stock Certificates are delivered to the Corporation as provided above, or the holder notifies the corporation that such certificates have been lost, stolen or destroyed (subject to the requirements of subparagraph (a) below). In the case of a dispute as to the calculation of the Conversion Price, the Corporation shall promptly issue such number of shares of Common Stock that are not disputed in accordance with subparagraph (b) below. The Corporation shall submit the disputed calculations to its outside accountant via facsimile within three (3) business days of receipt of the Notice of Conversion. The accountant shall audit the calculations and notify the Corporation and the holder of the results no later than 48 hours from the time it receives the disputed calculations. The accountant's calculation shall be deemed conclusive absent manifest error.
would result in a fractional share of Common Stock or the right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares of Common Stock issuable upon conversion of the Series E Preferred Stock shall be the next higher number of shares.
E. A number of shares of the authorized but unissued Common Stock sufficient to provide for the conversion of the Series E Preferred Stock outstanding at the then current Conversion Price shall at all times be reserved by the Corporation, free from preemptive rights, for such conversion or exercise. If the Corporation shall issue any securities or make any change in its capital structure which would change the number of share of Common Stock into which each share of the Series E Preferred Stock shall be convertible at the then current Conversion Price, the Corporation shall at the same time also make proper provisions so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for conversion of the outstanding Series E Preferred Stock on the new basis. If, at any time a holder of shares of Series E Preferred Stock submits a Conversion Notice, the Corporation does not have sufficient authorized but unissued shares of Common Stock available to effect such conversion in accordance with the provisions of this Article VI (a "Conversion Default"), the Corporation shall issue to the holder all of the shares of Common Stock which are available to effect such conversion. The number of shares of Series E Preferred Stock included in the Notice of Conversion which exceeds the amount which is then convertible into available shares of Common Stock (the "Excess Amount") shall, notwithstanding anything to the contrary contained herein, not be convertible into Common Stock in accordance with the terms hereof until (and at the holder's option at any time after) the date additional shares of Common Stock are authorized by the Corporation to permit such conversion, at which time the Conversion Price in respect thereof shall be the lesser of (i) the Conversion Price on the Conversion Date Default (as defined below) and (ii) the Conversion Price on the Conversation Date elected by the holder in respect thereof. The Corporation shall pay to the bolder payments ("Conversion Default Payments") for a Conversion Default in the amount of (N/365), multiplied by the sum of the Stated Value with respect to each share of Series E Preferred Stock, multiplied by the Default Amount (as defined below) on the first day of the Conversion Default (the "Conversion Default Date"), multiplied by .25, where (i) N = the number of days from the Conversion Default Date to the earlier of (A) the date (the "Authorization Date") that the Corporation authorizes a sufficient number of shares of Common Stock to effect conversion of the full number of shares of Series E Preferred Stock and (B) the date such share of Series E Preferred Stock is redeemed in accordance with Article VI.D. and (ii) "Default Amount" means the Excess Amount. The Corporation shall send notice to the holder of the authorization of additional shares of Common Stock, the Authorization Date and the amount of holder's accrued Conversion Default Payments. The accrued Conversion Default Payments for each calendar month shall be paid in cash or, subject to the limitations contained in Article VI.G., shall be convertible into Common Stock at the Conversion Price, at the holder's option, as follows:
(a) In the event holder elects to take such payment in cash, cash payment shall be made to holder by the fifth day of the month following the month in which it has accrued; and
(b) In the event holder elects to take such payment in Common Stock, the holder may convert such payment amount into Common Stock at the Conversion Price (as in effect at the time of Conversion) at any time after the fifth day of the month following the month in which it has accrued in accordance with the terms of this Article VI.
Nothing herein shall limit the holder's right to pursue actual damages for the Corporation's failure to maintain a sufficient number of authorized shares of Common Stock, and each holder shall have the right to pursue all remedies available at law or in equity (including a decree of specific performance and/or injunctive relief).
F. Upon the occurrence of each adjustment or readjustment of the Conversion Price pursuant to this Article VI, the Corporation, at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Series E Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series E Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustment or readjustment, (ii) the Conversion Price at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other securities or property which at the time would be received upon conversion of a share of Series E Preferred Stock.
G. Notwithstanding anything contained herein to the contrary, in
no event shall the aggregate number of shares of Common Stock issuable upon
conversion or redemption of, or otherwise issuable with respect to, all of the
Series E Preferred Stock issued by the Corporation pursuant to the Purchase
Agreement or any purchase agreement pertaining to the sale of Series E Preferred
Stock (including, without limitation, all shares of Common Stock issued with
respect to such Series E Preferred Stock pursuant to Article V.C and Article
VI.E hereof) plus all shares
of Common Stock issued pursuant to the Purchase Agreement or issuable pursuant
to Section 2(c) of the Registration Rights Agreement exceed 2,733,799 (subject
to equitable adjustments from time to time pursuant to the antidilution
provisions of Article VI.C above). In the event the Corporation is prohibited
from issuing shares of Common Stock as a result of the operation of this Article
VI.G., the provisions of Article V.C., subparagraph (b) of Article VI.D. and
Article
VI.E. shall apply to the extent applicable.
Each share of Series E Preferred Stock issued and outstanding on December 11, 2001, automatically shall be converted into shares of Common Stock on such date at the then effective Conversion Price in accordance with the provisions of Article VI hereof (the "Mandatory Conversion").
The holders of the Series E Preferred Stock have no voting power whatsoever, except as otherwise provided by the Delaware General Corporation Law ("DGCL"), and in this Article VIII, and in Article IX below.
Notwithstanding the above, the Corporation shall provide each holder of Series E Preferred Stock with prior notification of any meeting of the shareholders (and copies of proxy materials and other information sent to shareholders). In the event of any taking by the Corporation of a record of its shareholders for the purpose of determining shareholders who are entitled to receive payment of any dividend or other distribution, any right to subscribe for, purchase or otherwise acquire (including by way of merger, consolidation or recapitalization) any share of any class or any other securities or property, or to receive any other right or for the purpose of determining shareholders who are entitled to vote in connection with any proposed sale, lease or conveyance of all or substantially all of the assets of the Corporation, or any proposed liquidation, dissolution or winding up of the Corporation, the Corporation shall mail a notice to each holder, at least ten (10) days prior to the record date specified therein (or 30 days prior to the consummation of the transaction or event, whichever is earlier), of the date on which any such record is to be taken for the purpose of such dividend, distribution, right, or other event, and a brief statement regarding the amount and character of such dividend, distribution, right or other event to the extent known at such time.
To the extent that under the DGCL the vote of the holders of the Series E Preferred Stock, voting separately as a class or series as applicable, is required to authorize a given action of the Corporation, the affirmative vote or
consent of the holders of at least a majority of the shares of the Series E Preferred Stock represented at a duly held meeting at which a quorum is present or by written consent of a majority of the shares of Series E Preferred Stock (except as otherwise may be required under the DGCL) shall constitute the approval of such action by the class. To the extent that under the DGCL holders of the Series E Preferred are entitled to vote on a matter with holders of Common Stock, voting together as one class, each share of Series E Preferred Stock shall be entitled to a number of votes equal to the number of shares of Common Stock into which it is then convertible using the record date for the taking of such vote of shareholders as the date as of which the Conversion Price is calculated. Holders of the Series E Preferred Stock shall be entitled to notice of (and copies of proxy materials and other information sent to shareholders) all shareholder meetings or written consents with respect to which they would be entitled to vote, which notice would be provided pursuant to the Corporation's by-laws and the DOCL.
So long as shares of Series E Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by the DGCL) of the holders of at least a majority of the then outstanding shares of Series E Preferred Stock:
(a) alter or change the rights, preferences or privileges of the Series E Preferred Stock or any other class or series of capital stock of the Corporation so as to effect adversely the Series E Preferred Stock;
(b) create any new class or series of capital stock having a preference over the Series E Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Corporation ("Senior Securities");
(c) increase the authorized number of shares of Series E Preferred Stock;
(d) do any act or thing not authorized or contemplated by this Certificate of Designation which would result in taxation of the holders of shares of the Series E Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any comparable provision of the Internal Revenue Code as hereafter from time to time amended); or
(e) issue after the Closing Date any Senior Securities.
In the event holders of at least a majority of the then outstanding shares of Series E Preferred Stock agree to allow the Corporation to alter or change the rights, preferences or privileges of the shares of Series E Preferred Stock, pursuant to subsection (a) above, so as to affect the Series E Preferred Stock, then the Corporation will deliver notice of such approved change to the holders of the Series E Preferred Stock that did not agree to such alteration or change (the "Dissenting Holders") and Dissenting Holders shall have the right for a period of twenty (20) days to convert pursuant to the terms of this Certificate of Designation as they exist prior to such alteration or change or continue to hold their shares of Series E Preferred Stock.
Each holder of Series E Preferred Stock shall send a copy of all
notices to be given to the Corporation under this Certificate of Designation to
such one (1) counsel as the Corporation may designate in writing at least five
(5) business days prior to such holder sending such notice. For purposes of this
Article X, the initial counsel designated by the Corporation for receiving
copies of notices under this Certificate of Designation shall be Jackson Tufts
Cole & Blank, LLP, 60 South Market Street, San Jose, California 95113,
Attention: Richard Scudellari, Telecopier (408) 998-4889.
IN WITNESS WHEREOF, this Certificate of Designations, Rights and Preferences is executed on behalf of the Corporation this 9th date of December, 1996.
OXIS INTERNATIONAL, INC.
By: /s/ RAY R. ROGERS
-------------------------------
Name: Ray R. Rogers
Title: Chairman
|
NOTICE OF CONVERSION
(To be Executed by the Registered Holder
in order to Convert the Series E Preferred Stock)
The undersigned hereby irrevocably elects to convert shares of Series E Preferred Stock, represented by stock certificate No(s), (the "Preferred Stock Certificates") into shares of common stock ("Common Stock") of OX1S International, Inc. (the "Corporation") according to the conditions of the Certificate of Designation of Series E Preferred Stock, as of the date written below. If securities are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates. No fee will be charged to the Holder for any conversion, except for transfer taxes, if any. A copy of each Preferred Stock Certificate is attached hereto (or evidence of loss, theft or destruction thereof).
The undersigned represents and warrants that all offers and sales by the undersigned of the securities issuable to the undersigned upon conversion of the Series E Preferred Stock shall be made pursuant to registration of the securities under the Securities Act of 1933, as amended (the "Act"), or pursuant to an exemption from registration under the Act.
Date of Conversion: ______________________________
Applicable Conversion Price: _____________________
Number of Shares of Common Stock to be Issued:________________________
Signature:________________________________________
Name:_____________________________________________
*The Corporation is not required to issue shares of Common Stock until the original Series E Preferred Stock Certificate(s) (or evidence of toss, theft or destruction thereof) to be converted are received by the Corporation or its Transfer Agent. The Corporation shall issue and deliver shares of Common Stock to an overnight courier not later than three (3) business days following receipt of the original Preferred stock Certificate(s) to be converted, and shall make payments pursuant to the Certificate of Designation for the number of business days such issuance and delivery is late.
CERTIFICATE OF AMENDMENT
OF
SECOND (SIC) FOURTH RESTATED CERTIFICATE OF INCORPORATION
OF
OXIS INTERNATIONAL, INC.
OXIS INTERNATIONAL, INC., a Delaware corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, at duly called meeting of the directors, adopted a resolution proposing and declaring advisable the following amendment to the Restated Certificate of Incorporation of said corporation:
RESOLVED, that the Fourth Restated Certificate of Incorporation of the Company be amended by amending the first paragraph of Article Fourth of the Fourth Restated Certificate of Incorporation of the Company to read in its entirety as follows:
"FOURTH:
The Company is authorized to issue a total of Fifty Million (50,000,000) shares of Common Stock, each of which shares of Common Stock has a par value of Fifty Cents ($0.50). Dividends may be paid on the Common Stock as and when declared by the Board of Directors, out of any funds of the Company legally available for the payment of such dividends, and each share of Common Stock will be entitled to one vote on all matters on which such stock is entitled to vote. All duly authorized One Dollar ($1.00) par value shares outstanding shall be deemed shares having a par value of Fifty Cents ($0.50).
SECOND: That thereafter, pursuant to resolution of its Board of Directors, a meeting of the stockholders of said corporation was held in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance with the applicable provisions of Sections 242 of the General Corporation Law of the State of Delaware.
Filed Delaware
7/17/97
IN WITNESS WHEREOF, OXIS INTERNATIONAL, INC., a Delaware corporation, has caused this Certificate to be signed by its Chairman of the Board and attested by its Secretary, this 11th day of July, 1997.
OXIS INTERNATIONAL, INC.,
a Delaware corporation
By: /s/ RAY R. ROGERS
------------------------------
Chairman of the Board
ATTEST:
By: /s/ JON S. PITCHER
------------------------------
Jon S. Pitcher,
Secretary
|
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
OXIS INTERNATIONAL, INC.
(a Delaware Corporation)
OXIS International, Inc. (the "Corporation"), a corporation organized and existing under the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors and Stockholders of the Corporation have duly adopted resolutions proposing and declaring advisable the following amendment to the Corporation's Certificate of Incorporation:
The first paragraph of Article FOURTH shall be amended to read in full as follows:
FOURTH:
The Company is authorized to issue a total of Ninety-Five million (95,000,000) shares of Common Stock, each of which shares of Common Stock has a par value of one-tenth of one cent ($.001). Dividends may be paid on the Common Stock as and when declared by the Board of Directors, out of any funds of the Company legally available for the payment of such dividends, and each share of Common Stock will be entitled to one vote on all matters on which such stock is entitled to vote. All duly authorized Fifty Cent ($.50) par value shares outstanding shall be deemed shares having a par value of one-tenth of one cent ($.001).
SECOND: That said amendment has been duly adopted in accordance with the requirements of Section 242 of the DGCL. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed on this 13th day of July, 1998 by Ray R. Rogers, its authorized officer, who acknowledges under penalty of perjury that said amendment is the act and deed of the Corporation and that the facts stated herein are true and correct.
IN WITNESS WHEREOF the Corporation has caused this Certificate to be signed on this ___ day of July, 1998, by Ray R. Rogers, its authorized officer, who acknowledges under penalty of perjury that said amendment is the act and deed of the Corporation and that the facts stated herein are true and correct.
OXIS INTERNATIONAL, INC.
By: /s/ RAY R. ROGERS
-----------------------------
Name: Ray R. Rogers
Title: Chief Executive Officer
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Filed Delaware 7/14/98
CERTIFICATE OF AMENDMENT
OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
OXIS INTERNATIONAL, INC.
(a Delaware Corporation)
OXIS International, Inc. (the "Corporation"), a corporation organized and existing under the Delaware General Corporation Law (the "DGCL"), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors and Stockholders of the Corporation have duly adopted resolutions proposing and declaring advisable the following amendment to the Corporation's Restated Certificate of Incorporation:
The first paragraph of Article FOURTH shall be amended by appending the following to the existing text:
Simultaneously with the effective date of this amendment (the
"Effective Date"), each share of Common Stock issued and
outstanding immediately prior to the Effective Date (the "Old
Common Stock") shall automatically and without any action on
the part of the holder thereof be reclassified as and changed
into one-fifth (1/5) share of New Common Stock (the "New
Common Stock "), subject to the treatment of fractional share
interests as described below. Such reclassification and change
of Old Common Stock into New Common Stock shall not change the
par value per share of the shares reclassified and changed.
Each holder of a certificate or certificates which immediately
prior to the Effective Date represented outstanding shares of
Old Common Stock (the "Old Common Stock Certificates," whether
one or more) shall be entitled to receive upon surrender of
such Old Common Stock Certificates to the Corporation's
Transfer Agent for cancellation, a certificate or certificates
(the "New Common Stock Certificates," whether one or more)
representing the number of whole shares of New Common Stock
into which and for which the shares of the Old Common Stock
formerly represented by such Old Common Stock Certificates so
surrendered, are reclassified under the terms hereof. From and
after the Effective Date, Old Common Stock Certificates shall
represent only the right to receive New Common Stock
Certificates (and, where applicable, cash in lieu of
fractional shares, as provided below) pursuant to the
provisions hereof. No certificates or scrip
representing fractional share interests in New Common Stock will be issued, and no such fractional share interest will entitle the holder thereof to vote, or to any rights of a stockholder of the Corporation.
Filed Delaware 10/20/98
A holder of Old Common Stock Certificates shall receive, in lieu of any fraction of a share of New Common Stock to which the holder would otherwise be entitled, a cash payment therefor in an amount equal to the product of (a) the fraction of such share and (b) the average of the closing reported bid and asked prices of one share of Old Common Stock, as reported on the NASDAQ National Market System, for the ten trading days immediately preceding the Effective Date for which transactions in Old Common Stock are reported thereon. If more than one Old Common Stock Certificate shall be surrendered at one time for the account of the same stockholder, the number of full shares of New Common Stock for which New Common Stock Certificates shall be issued shall be computed on the basis of the aggregate number of shares represented by the Old Common Stock Certificates so surrendered. In the event that the Transfer Agent determines that a holder of Old Common Stock Certificates has not tendered all the holder's certificates for exchange, the Transfer Agent shall carry forward any fractional share until all certificates of that holder have been presented for exchange such that payment for fractional shares to any one holder shall not exceed the value of one share. If any New Common Stock Certificate is to be issued in a name other than that in which the Old Common Stock Certificates surrendered for exchange are issued, the Old Common Stock Certificates so surrendered shall be properly endorsed and otherwise in proper form for transfer, and the person or persons requesting such exchange shall affix any requisite stock transfer tax stamps to the Old Common Stock Certificates surrendered, or provide funds for their purchase, or establish to the satisfaction of the Transfer Agent that such taxes are not payable. From and after the Effective Date, the amount of capital represented by the shares of the New Common Stock into which and for which the shares of the Old Common Stock are reclassified under the terms hereof shall be the same as the amount of capital represented by the shares of Old Common Stock so reclassified, until thereafter reduced or increased in accordance with applicable law.
SECOND: That said amendment has been duly adopted in accordance with the requirements of Sections 141, 228 and 242 of the DGCL.
THIRD: That this Certificate of Amendment of the Restated Certificate of Incorporation shall be effective on October 21, 1998 at 12:01 a.m., Eastern Standard Time.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed on this 28th day of September, 1998 by Ray R. Rogers, its authorized officer, who acknowledges under penalty of perjury that said amendment is the act and deed of the Corporation and that the facts stated herein are true and correct.
OXIS INTERNATIONAL, INC.
By: /s/ RAY R. ROGERS
---------------------------------
Name: Ray R. Rogers
Title: Chief Executive Officer
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CERTIFICATE OF DESIGNATIONS,
RIGHTS AND PREFERENCES
of
SERIES F CONVERTIBLE PREFERRED STOCK
of
OXIS INTERNATIONAL, INC.
Pursuant to Section 151 of the Delaware General Corporation Law Oxis International, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), hereby certifies that the following resolutions were adopted by the Board of Directors of the Corporation pursuant to authority of the Board of Directors as required by Section 151 of the Delaware General Corporation Law:
RESOLVED, that, pursuant to authority granted to and vested in the Board of Directors of this Corporation in accordance with the provision of its Fourth Restated Certificate of Incorporation, as amended, the Board of Directors hereby authorizes a series of the Corporation's previously authorized Preferred Stock, par value $.01 per share (the "Preferred Stock") and hereby states the designation and number of shares, and fixes the relative rights, preferences, privileges, powers and restrictions thereof as follows:
Series F Convertible Preferred Stock:
I. DESIGNATION AND AMOUNT.
2,000,000 shares of the Corporation's authorized Preferred Stock are hereby designated as Series F Convertible Preferred Stock (the "Series F Preferred Stock") with par value $.01 per share.
II. DIVIDENDS.
No dividends shall be declared and set aside for any shares of the Series F Preferred Stock except in the event that the Board of Directors of the Corporation shall declare a dividend payable upon the then outstanding shares of the Common Stock of the Corporation, in which event the holders of the Series F Preferred Stock, subject to the prior rights of Series B and Series C Preferred Stock, shall be entitled to receive dividends in preference to the holders of
Filed Delaware 3/1/02
Common Stock at the rate of $.03 per share of Series F Preferred Stock then outstanding from legally available funds. The right to such dividends on shares of Series F Preferred Stock shall not be cumulative and no right shall accrue to the holders of Series F Preferred Stock by reason of the fact that dividends on said shares are not declared in any prior year, nor shall any undeclared or unpaid dividend bear or accrue interest.
III. LIQUIDATION, DISSOLUTION OR WINDING UP.
A liquidation, dissolution or winding-up of the Corporation shall be deemed to have occurred within the meaning of this Article III upon (A) the sale, lease or other disposition by the Corporation of all or substantially all of its assets, or (B) the acquisition of the Corporation by another entity by stock purchase, consolidation, merger or other reorganization in which the holders of the Corporation's outstanding voting stock immediately prior to such transaction own, immediately after such transaction, securities representing less than fifty percent (50%) of the voting power of the entity surviving such transaction. This means that the holders of Series F Preferred Stock, when presented with a transaction as described above in this paragraph, must choose between one or the other (but not both) of receiving the Series F Liquidation Preference or converting their shares to Common Stock in order to participate in such transaction.
IV. Voting Power.
Each holder of Series F Preferred Stock shall be entitled to vote on all matters submitted to the Corporation's stockholders and shall be entitled to that number of votes equal to the number of votes that would be accorded to the largest number of whole shares of Common Stock into which such holder's shares of Series F Preferred Stock could be converted, pursuant to the provisions of Article V of this Certificate, at the record date for the determination of stockholders entitled to vote on such matter or, if no such record date is established, at the date such vote is taken or any written consent of stockholders is solicited and, except as otherwise provided herein, shall have voting rights and powers equal to the voting rights and powers of Common Stock. Except as set forth in Article IV.B below and to those matters submitted to the stockholders wherein Delaware law requires that the Series F Preferred stockholders vote as a separate class or voting group, the holders of shares of Series F Preferred Stock shall be entitled to notice of any stockholders meeting in accordance with the Bylaws of the Corporation and shall
vote with the holders of Common Stock as a single class on all matters. In all cases where the holders of shares of Series F Preferred Stock have the right to vote separately as a class or group, such holders shall be entitled to one vote for each such share held by them respectively.
V. Conversion Rights.
The holders of the Series F Preferred Stock shall have the following conversion rights:
The rights of conversion contained in this Article V.A may be exercised by the holder of shares of Series F Preferred Stock by giving written notice that such holder elects to convert a stated number of shares of Series F Preferred Stock into Common Stock, and by surrender of a certificate or certificates for the shares so to be converted to the Corporation at its principal office (or such other office or agency of the Corporation as the Corporation may designate by notice in writing to the holder or holders of the Series F Preferred Stock) at any time during its usual business hours, together with a statement of the name or names (with address) in which the certificate or certificates for shares of Common Stock shall be issued. In the event some but not all of the shares of Series F Preferred Stock represented by a certificate or certificates surrendered by a holder are converted, the Corporation shall execute and deliver to the holder a new certificate representing the number of shares of Series F Preferred Stock that were not converted. Upon any liquidation, dissolution or winding-up of the Corporation, the right of conversion shall terminate at the close of business on the last full business day next preceding the date fixed for payment of the Series F Liquidation Preference.
All rights, preferences, and privileges granted to the Series F Preferred Stock, including, without limitation, the right to receive any declared but unpaid dividends, shall terminate with respect to any shares of Series F Preferred Stock upon the conversion thereof into Common Stock.
i. the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date; and
ii. the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution;
provided, however, that if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Applicable Conversion Rate for such Series F Preferred Stock shall be recalculated accordingly as of the close of business on such record date, and thereafter the Applicable Conversion Rate for Series F Preferred Stock shall be adjusted pursuant to this Article V.C(b) as of the time of actual payment of such dividends or distributions.
VI. Redemption Rights.
(a) The number of shares of Series F Preferred Stock held by the holder which shall be redeemed by the Corporation on such Redemption Date pursuant to the provisions of Article VI.A;
(b) the Redemption Date; and
(c) the address at which the holder may surrender to the Corporation its certificate or certificates representing shares of Series F Preferred Stock to be redeemed.
Each holder of shares of Series F Preferred Stock to be redeemed shall surrender the certificate or certificates representing such shares to the Corporation at the place specified in the Redemption Notice on or before the Redemption Date designated in the Redemption Notice (provided that failure to surrender a stock certificate shall not prevent the redemption of the underlying stock), and thereupon the applicable Redemption Value for such shares as set forth in this Article VI shall be paid to the order of the person whose name appears on such certificate or certificates. Each surrendered certificate shall be canceled and retired.
VII. Protective Provisions.
So long as at least twenty percent (20%) of the original issue amount of shares of Series F Preferred Stock are outstanding, the Corporation shall not, without the approval of the holders of at least a majority of the then outstanding Series F Preferred Stock voting separately as a class or group:
(a) amend or change any of the rights, preferences, privileges or powers of, or the restrictions provided for the benefit of, the Series F Preferred Stock;
(b) take any action that authorizes, creates or issues shares of any class of stock having preferences superior to or on a parity with the Series F Preferred Stock;
(c) declare or pay any dividends on or make any distribution on account of the Common Stock (other than a dividend payable solely in shares of Common Stock);
(d) take any action that increases or decreases the authorized number of shares of the Series F Preferred Stock (other than incident to a stock split up or down);
(e) repurchase any shares of any other series of preferred stock or Common Stock (except for the repurchase of shares of Common Stock from directors, employees and consultants, or other repurchases aggregating no more than $25,000 in any twelve-month period, or repurchases as may be required under the terms of the Series B Preferred Stock or Series C Preferred Stock);
(f) purchase or redeem any shares of Series F Preferred Stock other than pursuant to the redemption provisions contained in Article VI of this Certificate;
(g) effect the sale of all or substantially all of the Corporation's assets or take any action which results in the holders of the Corporation's capital stock prior to the transaction owning less than 50% of the voting power of the Corporation's capital stock after the transaction; or
(h) permit a subsidiary of the Corporation to sell securities to a third party.
VIII. Notices.
Each holder of Series F Preferred Stock shall send a copy of all
notices to be given to the Corporation under this Certificate of Designation to
such counsel as the Corporation may designate in writing at least five (5)
business days prior to such holder sending such notice. For purposes of this
Article VIII, the initial counsel designated by the Corporation for receiving
copies of notices under this Certificate of Designation shall be Tonkon Torp
LLP, 1600 Pioneer Tower, 888 SW Fifth Avenue, Portland, Oregon 97204, Attention:
George C. Spencer, facsimile number (503) 972-3714.
IN WITNESS WHEREOF, this Certificate of Designations, Rights and Preferences is executed on behalf of the Corporation this 26th day of February, 2002
OXIS INTERNATIONAL, INC.
By: /s/ RAY R. ROGERS
---------------------------------------
Ray R. Rogers
President and Chief Executive Officer
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Exhibit 3(b)
COMPOSITE OF
BYLAWS
OXIS INTERNATIONAL, INC .
Effective Date September 7, 1994
and as amended August 30, 2000
ARTICLE I
MEETINGS OF STOCKHOLDERS
Certificate of Incorporation. In the absence of a quorum, the holders of a majority of the shares of stock present in person or by proxy and entitled to vote, or if no stockholder entitled to vote is present, then any officer of the Corporation may adjourn the meeting. At any such adjourned meeting at which a quorum may be present, any business may be transacted which might have been transacted at the meeting as originally called.
election or vote with fairness to all stockholders. On request of the chairman of the meeting or any stockholder entitled to vote thereat, the inspectors shall make a report in. writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them. No director or candidate for the office of director shall act as inspector of an election of directors. Inspectors need not be stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 7, in which notice shall be stated the time and place of the meeting. Notice of each such meeting shall be delivered to each director either personally or by telephone, telegraph cable or wireless, at least twenty-four hours before the time at which such meeting is to be held or by first-class mail, postage prepaid, addressed to him or her at his or her residence, or usual place of business, at least three days before the day on which such meeting is to be held. Notice of any such meeting need not be given to any director who shall, either before or after the meeting, submit a signed waiver of notice or who shall attend such meeting without protesting, prior to or at its commencement, the lack of notice to him or her. Except as otherwise specifically required by these Bylaws, a notice or waiver of notice of any regular or special meeting need not state the purpose of such meeting.
no such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore.
ARTICLE III
OFFICERS
(a) Keep or cause to be kept in one or more books provided for that purpose, the minutes of the meetings of the Board of Directors, the committees of the Board of Directors and the stockholders;
(b) See that all notices are duly given in accordance with the provisions of these Bylaws and as required by law;
(c) Be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal;
(d) See that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed;
(e) Have the power to sign stock certificates to the full extent permitted by law; and
(f) In general, perform all the duties incident to the office of Secretary and such other duties as from time to time may be assigned to him or her by the Board of Directors or the President.
(a) Have charge and custody of and be responsible for all funds and securities of the Corporation;
(b) Receive and give receipts for monies due and payable to the Corporation from any source whatsoever and deposit all such monies in the name of the Corporation in such banks, trust companies or other depositories as shall be selected in accordance with these Bylaws;
(c) Prepare, or cause to be prepared, for submission at each regular meeting of the Board of Directors, the President, or as may be required by law, a statement of financial condition of the Corporation in such detail as may be required;
(d) Have the power to sign stock certificates to the full extent permitted by law; and
(e) In general, perform all the duties incident to the office of Treasurer and such other duties as from time to time may be assigned to him or her by the Board of Directors or the President. If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum and with such surety or sureties as the Board of Directors shall determine.
ARTICLE IV
Executive Committee shall be reported to the Board at its meeting next succeeding such action, and shall be subject to revision and alteration by the Board; provided, however, that no rights of third parties shall be affected by such revision or alteration.
ARTICLE V
INDEMNIFICATION
The Corporation, by action of the Board of Directors, may, to the fullest extent permitted by the General Corporation Law of Delaware, indemnify any and all persons who it shall have power to indemnify against any and all of the expenses, liabilities or other matters.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December of each year.
ARTICLE VII
SEAL
The Board of Directors shall provide a corporate seal, which shall be in the form of the name of the Corporation and the words and figures "Corporate Seal 1973 Delaware".
ARTICLE VIII
AMENDMENTS
These Bylaws may be amended or repealed, or new Bylaws may be adopted,
(1) at any annual or special meeting of the stockholders, by a majority of the
total votes of the stockholders, present or in person or represented by proxy
and entitled to vote on such action; provided, however, that the notice of such
meeting shall have been given as provided in these Bylaws, which notice shall
mention that amendment or repeal of these Bylaws, or the adoption of new Bylaws,
is one of the purposes of such meeting; (2) by written consent of the
stockholders pursuant to Section 11 of Article I, or (3) by action of the Board
of Directors.
These Bylaws were first adopted by the Board of Directors of DDI Pharmaceuticals, Inc. on June 15, 1994. These Bylaws became the Bylaws of OXIS International, Inc. on September 7, 1994 pursuant to merger of DDI Pharmaceuticals, Inc. and other companies, with DDI Pharmaceuticals, Inc. being the surviving corporation in that merger and changing its name to OXIS International, Inc. as of the effective date of the merger. These Bylaws were thereafter amended by the Board of Directors of OXIS International, Inc. on August 30, 2000. This Composite includes those amendments (Article IV and portions of Article III).
Exhibit 10(b)
SUBSCRIPTION AND PURCHASE AGREEMENT
UP TO 1,774,080 SHARES
OF SERIES C PREFERRED STOCK
THIS SUBSCRIPTION AND PURCHASE AGREEMENT (the "Agreement") is entered into as of the ____ day of _________, 1996 by and between OXIS INTERNATIONAL, INC., a Delaware corporation (the "Company"), and [all investors identified in attachment to this Subscription] (the "Investor").
In consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Agreement, the Company and the Investor mutually agree as follows:
ARTICLE l
Description of Proposed Financing
ARTICLE 2
Representations and Warranties of the Company
The Company hereby represents and warrants to the Investors that:
Confidential Private Placement Memorandum, dated March 18, 1996 (the "U.S. Memorandum") together with the Company's Confidential Private Placement Memorandum, dated January 26, 1996 (the "Overseas Memorandum"), which includes as exhibits, without limitation, the Company's Business Plan dated January 1996 and the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994 and its quarterly reports on Form 10-Q for the quarterly periods ended March 31, 1995, June 30, 1995 and September 30, 1995, in addition to certain Risk Factors disclosure (collectively, the "Offering Documents"). The Company has fully provided the Investor with all the information which the Investor has requested for deciding whether to purchase the Series C Preferred. The Investor acknowledges that the Company is engaged in an offering of the Series C Preferred solely to investors outside the United States (as described in the Overseas Memorandum, hereinafter referred to the "Overseas Offering") and acknowledges and agrees that this Offering is a simultaneous offering solely to U.S. investors pursuant to Regulation D promulgated pursuant to the Securities Act of 1933, as amended.
ARTICLE 3
Representations and Warranties of the Investor
(a) Organization and Standing. The Investor is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, and has all requisite corporate power and authority to own its properties and to carry on its business as now conducted.
ARTICLE 4
Federal and Other Securities Laws
(a) By reason of the Investor's knowledge and experience in financial and business matters in general, and investments in particular, the Investor is able to evaluate the merits and risks of an investment in the Securities. For purposes of this Article 4, the term "Securities" shall mean each of the shares of
Series C Preferred and the shares of Company Common Stock (the "Common Stock") into which shares of Series C Preferred may be converted.
(b) The Investor's income and net worth are such that the Investor is not now required, and does not contemplate in the future being required, to dispose of any portion of any investment in the Securities to satisfy any existing or contemplated undertaking.
(c) In evaluating the merits and risks of an investment in the Securities, the Investor has relied solely upon the Offering Documents and the advice of its legal counsel, tax advisors, and/or investment advisors.
(d) The Investor is able to bear the economic risk of an investment in the Securities, including without limiting the generality of the foregoing, the risk of losing part or all of the Investor's investment in the Securities, and the inability to sell or transfer the Securities for an indefinite period of time or at a price which would enable the Investor to recoup its investment in the Securities.
(e) The Investor's purchase of the Securities is as principal, solely for the Investor's own account, for investment, and not with an intent to sell, or for sale in connection with any distribution of the Securities, and no other person has any interest in or right with respect to the Securities, nor has the Investor agreed to give any person any such interest or right in the future.
(f) The Investor is an "accredited investor" as that term is defined in Section 501(a) of Regulation D of the Securities Act of 1933, as amended (the "Securities Act"). An "accredited investor" includes, among other persons and entities. (1) a natural person whose net worth, or joint net worth with that person's spouse, exceeds $1,000,000; (2) a natural person who has had income in excess of $200,000 in each of the two most recent years, or, with that person's spouse, in excess of $300,000 in those years, and who expects to have at least that level of income in the current year; (3) a corporation, partnership or similar business entity, not formed for the specific purpose of acquiring the Securities, with total assets in excess of $5,000,000; and (4) any entity in which all of the equity owners are accredited investors.
(g) If the Investor is a corporation, partnership or trust, the person executing this Agreement on behalf of such entity has all right, power and authority to so execute and deliver this Agreement on behalf of such entity and that the above representations, warranties, agreements, acknowledgments and understandings shall be deemed to have been made on behalf of the person or persons for whose benefit such Securities are being acquired.
(h) The Company has afforded the Investor and its advisors full and complete access to all information with respect to the Company and its business and financial condition (to the extent that such information was possessed by the Company or could be acquired by the Company without unreasonable effort or expense) that the Investor and its advisors deemed necessary in order to evaluate the merits and risks of an investment in the Securities. The Investor further represents and warrants that its advisors have received satisfactory and complete information concerning the business and financial condition of the Company in response to all inquiries made by them in respect thereof.
(i) The offer to sell Securities was directly communicated to the Investor, in such a manner that the Investor was able to ask questions and receive answers concerning the terms of this transaction and that at no time was the Investor presented with or solicited by any leaflet, newspaper or magazine article, radio or television advertisement or any other form of general advertising, or invited to any promotional meeting, otherwise than in connection and concurrently with such communicated offer. No oral representations have been made or oral information furnished to the Investor in connection with the placement of Securities which were in any way inconsistent with the Memorandum or its exhibits .
(a) The Securities have not been registered under the Securities Act, or under
the securities laws of any state and that the Securities must be held until the Securities are registered under the Securities Act and applicable state securities laws or an exemption from such registration is available.
(b) No federal or state agency, including the U.S. Securities and Exchange Commission (the "Commission"), or the securities commission or authorities of any state or regulatory jurisdiction has approved or disapproved the Securities, passed upon or endorsed the merits of the Offering or the accuracy or adequacy of the Offering Documents, or made any finding or determination as to the fairness of the Securities or an investment in the Securities.
( c) The Securities that the Investor will be acquiring may be considered "Restricted Securities" as that term is defined in Rule 144 promulgated under the Securities Act; that the exemption from registration under Rule 144 will not be available in any event for at least two years from the date of issuance, and even then will not be available unless (1) a public trading market then exists for said Securities, (2) adequate information concerning the Company is then available to the public, and (3) other terms and conditions of Rule 144 are complied with.
(d) Any and all certificates representing the Securities shall bear a legend describing the aforementioned restrictions on the transfer of such Securities which legend will not be removed until the Securities have been registered under the Securities Act. The Securities are sold in accordance with any of the provisions of Rule 144 or Rule l44A under the Securities Act, or the Securities qualify for resale under Rule 144(k) promulgated under the Securities Act.
( e) Investor understands that in the view of the Commission the statutory basis for the exemption claimed for the transactions contemplated by the Agreement would not be present if the offering of Securities, although in technical compliance with Regulation D promulgated under the Securities Act, is part of a plan or scheme to evade the registration provisions of the Securities Act, and Investor confirms that its purchase is not part of any such plan or scheme.
(f) The Investor agrees that all certificates evidencing the Securities shall bear a legend in substantially the following form, and by which the Investor agrees to be bound, in addition to any legends required by state securities laws:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 NOR REGISTERED NOR QUALIF1ED UNDER ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED, OR HYPOTHECATED UNLESS QUALIFIED AND REGISTERED UNDER APPLICABLE STATE AND FEDERAL SECURRRITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, SUCH QUALIFICATION AND REGISTRATION IS NOT REQUIRED. ANY TRANSFER OF THE SECURITIES REPRESENTED BY THIS AGREEMENT IS FURTHER SUBJECT TO OTHER RESTRICTIONS, TERMS AND CONDITIONS WHICH ARE SET FORTH HEREIN.
(g) The Company shall make a notation regarding the restrictions on transfer of the Securities in its stock books, and the Company shall not be required to transfer on its books any of such Securities that have been sold or transferred in violation of any of the provisions of this Agreement or to treat as the owner of such Securities any transferee to whom such securities have been so transferred.
Common Stock (including shares of common stock issued or issuable as a dividend
or other distribution with respect to, or in exchange for, or in replacement of
such Common Stock) (collectively, the "Registrable Securities") by the holders
thereof (the "Holders"). Notwithstanding the foregoing, the Company shall not be
obligated to take any action to effect any such registration pursuant to this
Section 4.3 in any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act.
The Company shall:
(i) Keep the registration statement with respect to the Registrable Securities filed pursuant to Section 4.3(a) of this Agreement ("Registration Statement") effective for the period from the date of declaration of effectiveness of such Registration Statement through the earlier of: (i) the date 24 months from the Fina1 Closing, or (ii) the sale of all of the Registrable Securities;
(ii) Prepare and file with the Commission 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 during the period of its effectiveness; and
(iii) Furnish to the Holders 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.
information furnished by the Company or any officer, director or controlling person of the Company (other than the Investor) for use in the preparation thereof and that the Company shall be entitled to control the defense and any settlement of any such matter
ARTICLE 5
Conditions to the Company's Obligations at Closing
The obligations of the Company under Section 1.2 of this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions as to the Investor:
ARTICLE 6
Series C Preferred
(1) The Company (or any designated agent of the Company) shall, at all times while any shares of Series C Preferred are outstanding, act as the registrar of the Series C Preferred and shall cause to be kept at its principal office in the City of Portland, Oregon, or in such other place or places and by such other registrar or registrars, if any, as the Company may designate, a register in which shall be entered the names and addresses of the registered holders of Series C Preferred and of all transfers of Series C Preferred. The name of the registered holder shall be noted on the certificates representing the Series C Preferred by the Company or other registrar.
(2) No transfer of shares of Series C Preferred shall be valid unless made by the registered holder or his executors or administrators or other legal representatives or his or their attorney duly appointed by an instrument in writing in form and execution satisfactory to the Company, upon compliance with the provisions of this Agreement, applicable law, and such other requirements as the Company and/or other registrar may reasonably prescribe, and unless such transfer shall have been duly entered on the appropriate register by the Company or other registrar. The person in whose name a share of Series C Preferred is registered shall be deemed to be the owner thereof.
ARTICLE 7
Miscellaneous
ARTICLE 8
Subscription
The undersigned acknowledges that this subscription shall not be effective unless accepted by the Company as indicated below.
CORPORATE OR OTHER ENTITY: INDIVIDUAL INVESTOR(S):
_________________________________
(Printed Name of Entity)
By: *____________________________ *_________________________________
- -
(Signature) (Signature)
_________________________________ _________________________________
(Name Printed) (Name Printed)
Title:___________________________ ________________________________
(Street Address)
_________________________________
(Street Address) ________________________________
(City, State, Zip)
_________________________________
(City, State, Zip) ________________________________
(Telephone Number)
_________________________________
(Telephone Number)
Federal I.D. No. ________________
FORM OF OWNERSHIP
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[ ] individual [ ] community property
[ ] joint tenants [ ] tenants in commong
[ ] other ___________________
* Signed by all investors
ACCEPTED:
OXIS INTERNATIONAL, INC., a Delaware corporation
Dated: ________________________, 1996
** Signed by Company
OXIS INTERNATIONAL, INC.
SERIES C PREFERRED STOCK OFFERING
(1,774,080 Total Shares)
--------------------------------------------------------------------------------
Holder Purchase Price Shares
------ ($1.30/sh) ------
----------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Marc Dumont 100,070 76,977
--------------------------------------------------------------------------------
Legong Investments N.V. 200,000 153,846
--------------------------------------------------------------------------------
Rauch & Co. 260,000 200,000
--------------------------------------------------------------------------------
Megapolis B.V. 24,999 19,230
--------------------------------------------------------------------------------
Carlo Gillet 40,300 31,000
--------------------------------------------------------------------------------
D.N.B. 100,000 76,923
--------------------------------------------------------------------------------
Sharon L. Carpenter IRS 49,999 38,461
--------------------------------------------------------------------------------
Deborah A. Y. Day IRA 100,000 76,923
--------------------------------------------------------------------------------
Syliva Morio IRA 49,999 38,461
--------------------------------------------------------------------------------
Maxine Y. Yakushijin IRA 100,000 76,923
--------------------------------------------------------------------------------
Terrance Y. Yoshikawa IRA 200,000 153,846
--------------------------------------------------------------------------------
America HealthCare Fund, LP 100,100 77,000
--------------------------------------------------------------------------------
Alta-Berkeley L.P. II 259,145 199,342
--------------------------------------------------------------------------------
Finovelec S.A. 202,222 155,555
--------------------------------------------------------------------------------
BBL France 65,000 50,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 13,000 10,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 13,000 10,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 13,000 10,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 13,000 10,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 6,500 5,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 1,300 1,000
--------------------------------------------------------------------------------
EGGER & Co., c/o chase Manhatt 13,000 10,000
--------------------------------------------------------------------------------
FINNO S.A. 177,895 136,842
--------------------------------------------------------------------------------
Sofinnova Capital F.C.P.R. 122,266 94,051
--------------------------------------------------------------------------------
Sofinnova S.A. 81,510 62,700
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
TOTAL $2,306,305 1,774,080
--------------------------------------------------------------------------------
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THIS WARRANT MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS SPECIFIED IN SECTION 11 HEREOF. NEITHER THE RIGHTS REPRESENTED BY THIS WARRANT NOR THE SHARES ISSUABLE UPON THE EXERCISE HEREOF (COLLECTIVELY, THE "SECURITIES") HAVE BEEN REGISTERED FOR OFFER OR SALE UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE LAW, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES, OR TO OR FOR THE ACCOUNT OR BENEFIT OF, UNITED STATES PERSONS, UNTIL 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING AND THE CLOSING DATE, NOR MAY THE WARRANT BE EXERCISED BY OR ON BEHALF OF ANY U.S. PERSON, EXCEPT IN EITHER CASE IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES ACT. THE RESALE SAFE HARBOR OF REGULATION S DOES NOT PERMIT THE RESALE OF THE SECURITIES IN THE UNITED STATES OR TO A U.S. PERSON. OFFERS AND SALES MAY BE MADE IN THE UNITED STATES OR TO U.S. PERSONS ONLY PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE IN WHOLE OR IN PART NOR THE WARRANT EXERCISED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTON 2 AND SECTION 11 HEREOF.
OXIS INTERNATIONAL, INC.
WARRANT TO PURCHASE COMMON STOCK
OXIS International, Inc., a Delaware corporation (the "Company"), hereby certifies that, for value received, _________________ ("Investor"), the registered holder hereof, or its registered assigns, is entitled, subject to the terms set forth below, to purchase from the Company upon surrender of this Warrant, at any time or times on or after the date hereof but not after 5 :00 P .M., Portland time, on the Expiration Date (as defined herein), ___________________ (_____) fully paid nonassessable shares (the "Warrant Shares") of Common Stock (as defined herein) of the Company (as adjusted from time to time as provided in this Warrant) at an initial purchase price of U.S. $1.43 per share in lawful money of the United States.
(ii) When used in this Warrant, the words "herein," "hereof," and "hereunder," and words of similar import, shall refer to this Warrant as a whole and not to any provision of this Warrant, and the words "Section," "Schedule," and "Exhibit" shall refer to Sections of, and Schedules and Exhibits to, this Warrant unless otherwise specified.
(iii) Whenever the context so requires the neuter gender includes the masculine or feminine, and the singular number includes the plural, and vice versa.
(b) Unless the rights represented by this Warrant shall have expired or have been fully exercised, the Company shall issue a new Warrant identical in all respects to the Warrant exercised except (x) it shall represent rights to purchase the number of Warrant Shares purchasable immediately prior to such exercise under the Warrant exercised, less the number of Warrant Shares with respect to which such Warrant was exercised, and (y) the holder thereof shall be deemed to have become the holder of record of such Warrant Shares immediately prior to the close of business on the date on which the Warrant was surrendered and payment of the amount due in respect of such exercise and any applicable taxes was made, irrespective of the date of delivery of such share certificate, except that, if the date of such surrender and payment is a date when the stock transfer books of the Company are properly closed, such person shall be deemed to have become the holder of such Warrant Shares at the opening of business on the next succeeding date on which the stock transfer books are open.
and reserved a sufficient number of shares of Common Stock to provide for the exercise of the rights then represented by this Warrant and that the par value of said shares will at all times be less than or equal to the applicable Warrant Exercise Price.
(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.
notice of meetings, receive dividends or subscription rights, or otherwise, prior to the issuance to the holder of this Warrant of the Warrant Shares which he is then entitled to receive upon the due exercise of this Warrant.
(a) Prior to any sale, transfer or other disposition of this Warrant or the Warrant Shares, the holder thereof will give ten (10) days' notice to the Company of such holder's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer and, if such transfer is not registered under the Securities Act (below defined), shall be accompanied by an opinion, addressed to the Company and reasonably satisfactory in form and substance to it, of counsel (reasonably satisfactory to the Company) for such holder, stating whether, in the opinion of such counsel, such transfer will be a transaction exempt from registration under the Securities Act.
(b) If such sale, transfer or other disposition may in the opinion of such counsel be effected without registration under the Securities Act, such holder shall thereupon be entitled to the terms of the notice delivered by such holder to the Company. If in the opinion of such counsel such transfer may not be effected without registration under the Securities Act, such holder shall not be entitled to so transfer this Warrant, or the Warrant Shares unless the Company shall have filed a registration statement relating to such proposed transfer and such registration statement has become effective under the Securities Act.
(c) Subject to the provisions of this Section 11, the holder may at any time transfer this Warrant or the Warrant Shares to an affiliate of the holder.
(d) The terms of any registration rights agreement entered into by and between the Company and the holder hereof, to the extent applicable, shall be binding upon and inure to the benefit of any transferee of this Warrant (or unexercised portion hereof) or Warrant Shares issued upon the exercise of this Warrant, and shall cease to be binding upon or benefit the transferor.
(e) Any Warrant Shares issued pursuant to the exercise of this Warrant may bear one or more of the legends in similar form to the legend set forth on this Warrant.
(i) if to the Company, to it at:
OXIS International, Inc. Corporate Headquarters 6040 N. Cutter Circle, Suite 317 Portland, Oregon 97217-3935 Attention: Ray R. Rogers, Chairman Telephone: (503) 283-3911 Telecopier: (503) 283-4058
with a copy to:
Jackson, Tufts, Cole & Black 60 South Market Street San Jose, CA 95113 Attention: Richard Scudellari, Esq.
Telephone: (408) 998-1952
Telecopier: (408) 998-4889
(ii) if to Investor, to it at the address set forth below Investor's signature on the signature page hereof.
or at such other address or telecopier number or to the attention of such other person as the party to whom such information pertains may hereafter specify for the purpose in a notice to the other specifically captioned "Notice of Change of Address", and (d) be effective or deemed delivered or furnished (i) if given by mail, on the fifth Business Day after such communication is deposited in the mail, addressed as above provided, (ii) if given by telecopier, when such communication is transmitted to the appropriate number determined as above provided in this Section and the appropriate answer back is received or receipt is otherwise acknowledged, and (iii) if given by hand delivery, when left at the address of the addressee addressed as above provided, except that notices of a change of address, telecopier or telephone number, shall not be deemed furnished, until received.
OXIS INTERNATIONAL, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
BY:__________________________
Name:________________________
Title:_______________________
Address:_____________________
SUBSCRIPTION FORM
TO BE EXECUTED BY THE REGISTERED HOLDER IF SUCH REGISTERED HOLDER DESIRES TO EXERCISE THIS WARRANT
OXIS INTERNATIONAL, INC.
The undersigned hereby exercises the right to purchase Warrant Shares covered by this Warrant according to the conditions thereof and herewith makes payment of U.S. $_________, the aggregate Warrant Exercise Price of such Warrant Shares in full.
The undersigned further certifies that either: (i) it is not a "U.S. person" (as defined in Regulation S promulgated under the Securities Act of 1933, as amended (the "Securities Act")) and that the Warrant is not being exercised on behalf of a U.S. person; or (ii) the undersigned is providing to the Company herewith a written opinion of counsel to the effect that the Warrant and the Warrant Shares have been registered under the Securities Act or are exempt from registration thereunder.
INVESTOR:
Dated:____________, 199___.
EXHIBIT 21 (a)
Subsidiaries of OXIS International, Inc.
As of December 31, 2001, the Company's subsidiaries were as follows:
Name Jurisdiction of incorporation
---- -----------------------------
OXIS Health Products, Inc. Delaware
OXIS Therapeutics, Inc. Delaware
OXIS International S.A. France
OXIS Acquisition Corporation Delaware
OXIS Isle of Man Limited Isle of Man
OXIS Instruments, Inc. Pennsylvania
OXIS International (UK) Limited United Kingdom
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EXHIBIT 23 (b)
Independent Auditors' Consent
We consent to the incorporation by reference in Registration Statement Nos. 33-64451, 333-32132, and 333-54600 on Form S-8 and in Registration Statement Nos. 33-61087, 333-5921, 333-18041, 333-61993, and 333-40970 on Form S-3 of our report dated March 1, 2001 (which expresses an unqualified opinion and includes an explanatory paragraph relating to the Company's ability to continue as a going concern) appearing in this Annual Report on Form 10-KSB of OXIS International, Inc. for the year ended December 31, 2001.
DELOITTE & TOUCHE LLP
Portland, Oregon
March 28, 2002