Exhibit 10.1
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REGISTRATION RIGHTS AGREEMENT
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This Registration Right Agreement ("Agreement") is made as of this _________ day
of ______________, 2000, by and among OXIS International, Inc., a Delaware
corporation (the "Company"), and the investors in the common stock (the "Common
Stock") and the warrants to purchase Common Stock of the Company (the
"Warrants") listed on the signature pages hereto (each a "Purchaser" and
collectively, the "Purchasers"), which Common Stock and Warrants were purchased
by each Purchaser pursuant to the terms of a virtually identical Common Stock
and Warrant Subscription Agreement by and between each Purchaser and the Company
dated February 21, 2000 (the "Subscription Agreements," each a Subscription
Agreement).
In consideration of the mutual promises and covenants set forth herein, the
parties hereto agree as follows:
1. Registration Rights. The Company and each Purchaser covenant and agree as
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follows:
1.1 Definitions. For purposes of this Agreement:
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(a) The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended;
(b) The term "Holder" means the Purchaser or any assignee thereof in
accordance with Section 1.9 hereof;
(c) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities
Act, and the declaration or ordering of effectiveness of such
registration statement or document;
(d) The term "Registrable Securities" means (i) the Common Stock
purchased by the Purchasers, (ii) the Common Stock of the Company
issuable upon exercise of the Warrants (the "Warrant Shares") and
(iii) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution
with respect to, or in exchange for or in replacement of, such
Common Stock excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his
registration rights are not assigned;
(e) The term "Securities Act" means the Securities Act of 1933, as
amended;
(f) The term "SEC" means the Securities and Exchange Commission; and
(g) The term "Violation" shall have the meaning ascribed to that term
in Section 1.7 of this agreement.
1.2 Registration of Shares.
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(a) Filing of Registration Statement. The Company shall use commercially
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reasonable efforts to file with the SEC, on or before the date ninety
(90) days following the date of the closing of the sale of securities
pursuant to the latest dated Subscription Agreement (the "Final
Closing"), a Form S-3, if available, or Form S-1 (if such Form S-3 is
not available) registration statement under the Securities Act
covering the resale of the Registerable Securities.
1.3 Obligation of the Company. Whenever required under this Section 1 to effect
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the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible.
(a) Use its commercially reasonable best efforts to cause a
registration statement filed with respect to the Registrable
Securities to become effective, and, keep such registration
statement effective for up to one hundred eighty (180) days;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply
with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement;
(c) Furnish to each Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as
they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them; and
(d) Use its commercially reasonable best efforts to register and
qualify the securities covered by such registration statement
under such other securities or blue sky laws of such
jurisdictions as shall be reasonably requested by a majority of
the Holders, provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to
qualify to do business or to
file a general consent to service of process in any such states
or jurisdictions.
1.4 Furnish Information. It shall be a condition precedent to the obligations
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of the Company to take any action pursuant to this Section 1 that the
selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to effect the
registration of the Registrable Securities.
1.5 Expenses of Company Registration. The Company shall bear and pay all
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expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registration
pursuant to Section 1.2 for each Holder (which right may be assigned only
as provided in Section 1.9), including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees
relating or apportionable thereto, but excluding underwriting discounts and
commissions relating to Registrable Securities.
1.6 Delay of Registration. No Holder shall have any right to obtain or seek an
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injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.7 Indemnification. In the event any Registrable Securities are included in a
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registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors, partners and
legal counsel of each Holder, and each person, if any, who
controls such Holder within the meaning of the Securities Act or
the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other United States
federal or state law, rule or regulation insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "Violation"): (i) any
untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto: (ii) the omission or
alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any United
States state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any United States
state securities law; and the Company will reimburse each such
Holder, officer, director, partner, legal counsel, underwriter or
controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that the indemnity agreement contained in this
subsection 1.7(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company, nor
shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder,
officer, partner, director, legal counsel or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors
and officers, its legal counsel, each person, if any, who
controls the Company within the meaning of the Securities Act,
and any other Holder selling securities in such registration
statement or any of such other Holder's directors, legal counsel
or officers or any person who controls such Holder, against any
losses, claims, damages or liabilities (joint or several) to
which the Company or any such director, officer, legal counsel,
or controlling person, or other such Holder or director, officer,
legal counsel or controlling person of such other Holder may
become subject, under the Securities Act, the Exchange Act or
other United States federal or state law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in
reliance upon and in confornity with written information
furnished by such Holder expressly for use in connection with
such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such
director, officer, legal counsel, controlling person, other
Holder, or officer, director, legal counsel, or controlling
person of such other Holder in connection with investigating or
defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this
subsection 1.7(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder. The
aggregate indemnification obligations of any selling Holder
pursuant to the provisions of this Section 1.7(b) shall be
limited to
an amount equal to the proceeds received by such selling Holder
pursuant to the terms of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will,
if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.7, deliver to the
indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have
the right to retain its own counsel at its own expense if it so
desires. Notwithstanding the foregoing, if the indemnified party
and the indemnifying party have conflicting interests with
respect to the action so that joint counsel for them would be
inappropriate, (as determined by counsel to the indemnified party
and counsel to the indemnifying party), then the indemnifying
party shall pay reasonable fees and expenses of one counsel to
the indemnified party. The failure to deliver written notice to
the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve the indemnified party of any
obligation or liability to indemnify under this Section 1.7, but
the omission to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party, then each indemnifying party, in lieu of
indemnifying such indemnified party thereunder, hereby agrees to
contribute to the amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of
the indemnified party on the other.
(e) The obligations of the Company and Holders under this Section
1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and
otherwise.
1.8. Reports Under Securities Exchange Act of 1934. With a view to making
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available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any
time permit a Holder to
sell securities of the Company to the public without registration, the
Company agrees to use its commercially reasonable best efforts to:
(a) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act
and the Exchange Act; and
(b) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written
statement by the Company that it has complied with the
reporting requirements of SEC Rule 144, the Securities Act
and the Exchange Act, and (ii) a copy of the most recent
annual or quarterly report of the Company and such other
reports and documents so filed by the Company.
1.9. Assignment of Registration Rights. The rights to cause the Company to
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register Registrable Securities pursuant to this Section 1 may be assigned
by a Holder to a transferee or assignee who is not a competitor of the
Company and acquires at least two hundred thousand (200,000) shares (as
adjusted for stock splits, combinations, etc.) of Common Stock; provided,
however, in each case, the Company is, within thirty days after such
transfer, furnished with written notice (i) stating the name and address
of such assignee, (ii) identifying the securities with respect to which
such registration rights are being assigned, and (iii) confirming that the
assignee agrees to be bound by the terms and conditions of agreements
governing such rights; and provided, further, that such assignment shall
be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted
under the Securities Act.
1.10. Standstill Agreement. Each Holder hereby agrees that if such Holder is
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notified by the Company that the registration statement covering the
resale of the Registrable Securities is no longer deemed effective by the
SEC, or if the registration statement or the prospectus forming a part of
the registration statement no longer contains all information required
under the United States federal or state securities laws, the Holder shall
cease selling any Registrable Securities until notified by the Company
that the registration statement is effective and/or contains all required
information under the United States federal or state securities laws.
In order to enforce the foregoing covenant, the Company may impose stop-
transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction).
2. Miscellaneous.
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2.1. Amendment. Any provision of this Agreement may be amended and the
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the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the holders of at least 66-2/3% of the
Registrable Securities owned by the Purchasers. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each
Holder of any securities purchased under this Agreement at the time
outstanding (including securities into which such securities are
convertible), each future Holder of all such securities, and the Company.
2.2. Entire Agreement. This Agreement represents the entire and only agreement
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and understanding between the Purchasers and the Company concerning the
subject matter hereof and supersedes all prior oral and written and all
contemporaneous oral agreements, arrangements, understandings,
negotiations, commitments and understandings between the parties. No prior
agreement, whether written or oral, shall be construed to change, amend,
alter, repeal or invalidate this Agreement.
2.3. Notices. Unless otherwise specified herein, all notices or other
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communications required or permitted under this Agreement shall be given in
writing and shall be deemed effective and received: (a) immediately if
delivered by hand; (b) one (1) business day after direct transmission by
facsimile equipment; (c) two (2) business days after the date of sending by
Federal Express or any similar overnight delivery service; or (d) five (5)
business days after the date of mailing by United States registered or
certified mail, return receipt requested and postage prepaid at the address
or telecopy number indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days'
advance notice to the other parties.
2.4. Assigns, Heirs, Representatives, Agents and Successors. Each and all of the
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provisions contained in this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted assigns,
heirs, representatives, agents and all other successors in interest. No
assignment shall release the Holder from any obligation or liability under
this Agreement.
2.5. Governing Law, Venue and Jurisdiction. This Agreement shall be governed by,
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and construed in accordance with, the laws of the State of Oregon, without
regard to any principles of conflict of laws, and shall in all respects be
interpreted, enforced and governed within and under the laws of the State
of Oregon. Each party hereto expressly submits to the jurisdiction and
venue of the State and Federal Courts of Oregon which shall have exclusive
jurisdiction of all disputes arising hereunder or related hereto.
2.6. Article and Section Headings. The section, subsection and subdivision
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headings in this Agreement are for convenience and identification only and
are in no way intended to describe, define, alter, modify, amend, limit, or
restrict the scope, extent, or intent of this Agreement or any provision
hereof.
2.7. Counterparts. This Agreement may be executed in one or more counterparts,
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each of which shall be deemed to be an original, but all of which shall be
one and the same document.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties on
this____ day of ________________, 2000
OXIS INTERNATIONAL, INC. PURCHASER
By:_______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title:_______________________
Address:
______________________________
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