Exhibit 4.2
COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT
This COMMON STOCK AND WARRANT SUBSCRIPTION AGREEMENT, dated as of February
21,2000 (this "Agreement"), is entered into by and between OXIS International
Inc., a Delaware corporation (the "Company") and the investor set forth on the
signature page hereto ("Investor").
RECITALS
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WHEREAS, Investor wishes to invest $_____________ in the Company
(Investor's Investment"), and in doing so the Investor wishes to subscribe for
and purchase, and the Company wishes to issue and sell, to Investor shares (the
"Shares") of common stock of the Company ("Common Stock") in an amount and on
the terms set forth herein; and
WHEREAS, both Investor and the Company desire that the Company issue two
warrants to Investor for the future purchase of shares of Common Stock (the
"Warrants") in conjunction with the purchase of the Shares in the amounts and on
the terms set forth herein; and
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. Subscription for Common Stock and Warrants.
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A. The Common Stock and Warrants. The Company has authorized the issuance and
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sale pursuant to the terms of this Agreement of the Shares and the issuance
of the Warrants to Investor substantially in the forms attached hereto as
Exhibit A and Exhibit B. Subject to the terms and conditions of this
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Agreement, Investor hereby irrevocably subscribes for and agrees to
purchase the number of Shares provided for in Section I.B below for US$4.75
per Share (a price which equals the closing price of the Company's Common
Stock on the Nasdaq National Market on February 18, 2000) (the "Per Share
Price") and the Warrants as provided for herein. The exercise price with
respect to each Share covered by the Warrant set forth in Exhibit A shall
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be 125% of the Per Share Price (the "125% Warrant") and the exercise price
with respect to each Share covered by the Warrant set forth in Exhibit B
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shall be 150% of the Per Share Price (the "150% Warrant"). Investor shall
not be obligated to purchase any of the Shares unless the conditions set
forth in Article II hereof shall have been satisfied or waived by Investor
on or prior to the Closing Date (as defined below). The Company shall not
be obligated to sell any of the Shares to Investor or issue the Warrants to
Investor unless the conditions set forth in Article III hereof shall have
been satisfied or waived by the Company on or prior to the Closing Date.
B. Subject to the terms and conditions of this Agreement and on the basis
of the representations and warranties herein set forth, the Company
will sell to Investor, and Investor will purchase from the Company, a
number of Shares determined by dividing the amount of the Investor's
Investment (the "Purchase Price") by the Per Share Price, provided
that no fractional Shares shall be issued by the Company. The Purchase
Price shall be payable by wire transfer of immediately available funds
to such account or accounts as to which the Company may notify
Investor. At the consummation of the purchase of the Shares and the
Warrants (the "Closing") (or as soon as practicable thereafter),
subject to the terms and conditions of this Agreement and on the basis
of the representations and warranties herein set forth, the Company
will deliver to, or at the direction of, Investor or a representative
thereof, a certificate registered in the name of Investor representing
the Shares to be purchased by Investor and a 125% Warrant for the
purchase of an equal number of Shares and a 150% Warrant for the
purchase of an equal number of Shares, against payment of the Purchase
Price by Investor. The Closing will take place on February 23, 2000 or
such later date as the Company shall receive subscriptions for
securities with total gross proceeds, equal to US $4,000,000 or more
(the "Closing Date") at a location to be designated by the Company.
II. Conditions to the Obligations of Investor. The obligation of Investor to
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purchase the Shares and the Warrants under this Agreement is subject to the
satisfaction at or prior to the Closing Date of each of the following
conditions:
A. Accuracy of Representations and Warranties. All representations and
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warranties of the Company contained herein shall be true and correct
in all material respects on and as of the Closing Date as if made on
and as of such Closing Date.
B. Performance of Agreements; Regulatory Approvals.
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1. The Company shall have performed all obligations and agreements,
and complied with all covenants and conditions contained in this
Agreement to be performed or complied with by it prior to or at
the applicable Closing Date.
2. The Company shall have executed and delivered the applicable
Warrants.
3. The Company shall have obtained all corporate authorizations and
approvals and all consents and approvals of regulatory bodies and
authorities necessary to issue the Shares and the applicable
Warrants and to enter into and perform this Agreement and such
Warrants and to consummate the transactions contemplated hereby
and thereby.
If at or prior to the Closing all of the conditions of this Article II
have not been satisfied, Investor may elect to waive such conditions or to
be relieved of all further obligations hereunder.
III. Conditions to the Company's Obligations. The obligation of the Company to
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issue and sell the Shares and the applicable Warrants under this Agreement
is subject to satisfaction at the Closing Date of each of the following
conditions:
A. Accuracy of Representations and Warranties. All representations and
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warranties of Investor contained herein shall be true and correct in
all material respects on and as of the Closing Date as if made on and
as of such Closing Date.
B. Performance of Agreements. Investor shall have performed all
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obligations and agreements, and complied with all covenants and
conditions, contained in this Agreement to be performed or complied
with by it prior to or at the Closing Date.
C. Payment of Purchase Price. Investor shall have delivered to the
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Company and the Company shall have received full payment of the
Purchase Price.
D. Corporate Authorizations. The Company shall have obtained all
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corporate authorizations and approvals and all consents and approvals
of regulatory bodies and authorities necessary to issue the Shares and
the Warrants and to enter into and perform this Agreement and the
Warrants and to consummate the transactions contemplated hereby and
thereby (including the Company being satisfied that the sale of the
Shares and the Warrants at the Closing will not cause the Company to
be out of compliance with any of the criteria required to be complied
with in order to continue to be listed on the Nasdaq National Market).
If at or prior to the Closing all of the conditions of this Article III
have not been satisfied, the Company may elect to waive such conditions or
to be relieved of all further obligations hereunder.
IV. Representations, Warranties and Covenants of the Company. Except as
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otherwise set forth herein, the Company represents, warrants and covenants
to Investor as of the date of this Agreement and as of the Closing Date as
follows:
A. Due Organization; Valid Existence and Authority of the Company. The
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Company has been duly incorporated and is validly existing and in good
standing under the laws of the State of Delaware. The Company has full
right, power and authority to carry on its business as conducted and
as
proposed to be conducted. The Company has full right, power and
authority to enter into this Agreement and the Warrants and perform
its obligations hereunder and thereunder.
B. Authorization and Validity of Agreements. This Agreement and the
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Warrants have been duly authorized and constitute valid and binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as affected by ( i ) bankruptcy or
insolvency laws or (ii) equitable principles or public policy.
C. No Conflict with Other Instruments; No Approvals Required Except as
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Have Been Obtained. The execution and delivery of this Agreement and
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the Warrants by the Company, and compliance by the Company with the
terms and conditions hereof and thereof, will not violate, with or
without the giving of notice or the lapse of time, or both, and will
not conflict with, or require any consent or approval under, the
Certificate of Incorporation or By-laws of the Company.
D. Private Placement. Based, in part, on the representations and
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warranties of Investor set forth herein, the offer and sale of the
Shares and Warrants by the Company are being accomplished in a
transaction exempt from registration under Section 5 of the Securities
Act of 1933, as amended (the "Securities Act").
V. Representations of Investor. Investor hereby represents and warrants to the
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Company as of the date of this Agreement and as of the Closing Date as
follows:
A. Due Organization, Good Standing and Authority of the Investor.
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Investor has full right, power and authority to enter into this
Agreement and perform its obligations hereunder.
B. Authorization and Validity of Agreements. This Agreement has been duly
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authorized, executed and delivered by Investor and, assuming the due
authorization, execution and delivery by the Company, constitutes a
valid and binding obligation of Investor enforceable against Investor
in accordance with its terms, except as affected by (i) bankruptcy or
insolvency laws or (ii) equitable principles or public policy.
C. No Conflict with Other Instruments; No Approvals Required Except as
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Have Been Obtained. The execution and delivery of this Agreement and
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the Warrants by Investor and compliance by Investor with the terms and
conditions hereof and thereof, will not violate, with or without the
giving of notice or the lapse of time, or both, or require any
registration, qualification, approval or filing under, any provision of
law, statute, ordinance or regulation applicable to Investor and will
not conflict with, or require any consent or approval under, or result
in the breach or
termination of any provision of, or constitute a default under, or
result in the acceleration of the performance of the obligations of
Investor under, or result in creation of any claim, lien, charge or
encumbrance upon any of the properties, assets or businesses of
Investor pursuant to the charter document of Investor (if Investor is
not a natural person) or any order, judgement, decree, law, ordinance
or legal regulation applicable to the Investor, or any contract,
instrument, agreement or restriction to which Investor is a party or by
which Investor or any of its assets or properties is bound.
D. Investor Awareness. Investor acknowledges, agrees and is aware that the
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Shares, the Warrants and the shares of Common Stock to be issued upon
the exercise thereof (the "Warrant Shares") have not been registered
under the Securities Act, or under the securities laws of any other
jurisdiction, including any state of the United States of America. An
offer or sale of the Shares, the Warrants or the Warrant Shares by
Investor in the absence of registration under such securities laws will
require the availability of an exemption thereunder. A restrictive
legend in substantially the form set forth in Section VI.A hereof shall
be placed on the certificates representing the Shares, the Warrants and
the Warrant Shares and a notation shall be made in the appropriate
records of the Company indicating that the securities representing the
Shares, the Warrants and the Warrant Shares are subject to restrictions
on transfer.
E. Receipt of Information, Access to Information, Investment Intent.
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Investor acknowledges that it:
1. has been furnished with sufficient information regarding the
Company and its prospects such that it has been able to understand
and evaluate the risks of a purchase of the Company's securities;
2. has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the terms and conditions of
the offering of the Company's securities hereunder and other
matters pertaining to an investment therein, has been given the
opportunity to obtain such additional information necessary to
evaluate the merits and risks of a purchase of the securities to
the extent the Company possesses such information, and has received
all documents and information that it has requested relating to an
investment in the securities;
3. has carefully considered and has, to the extent Investor believes
such discussion necessary, discussed with its professional legal,
financial and tax advisors, the suitability of an investment in the
securities;
4. understands that the Shares, Warrants and Warrant Shares to be
received by Investor hereunder will be acquired for investment for
Investor's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and that
Investor has no present intention of otherwise distributing the
same. By executing this Agreement, Investor further represents that
Investor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect
to such to securities, or any portion thereof;
5. is an investor in securities of companies in the development stage
and acknowledges that it is able to fend for itself, can bear the
economic risk of its investment and has such knowledge and
experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in the Shares,
Warrants, and Warrant Shares; and
6. understands that the Shares, Warrants, and Warrant Shares are
characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that
under such laws and applicable regulations such Shares, Warrants
and Warrant Shares may be resold without registration under the
Securities Act only in certain limited circumstances. In this
connection Investor represents that it is familiar with Securities
and Exchange Commission ("SEC") Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the
Securities Act.
F. Accredited Investor Status. Investor is an Accredited Investor as such
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term is defined in Regulation D under the Securities Act.
VI. Restrictions on Transfer. The Shares, the Warrants and the Warrant Shares
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shall not be transferable except upon the conditions specified in Article
V.E and in this Article VI, which are intended to insure compliance with
the provisions of the Securities Act in respect of the transfer of any of
the Shares, the Warrants or Warrant Shares.
A. Restrictive Legends. Each certificate representing the Shares, the
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or the Warrant Shares shall (unless otherwise permitted by the
provisions of this Article VI) be stamped or otherwise imprinted with a
legend in substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES
ACT") OR UNDER THE SECURITIES LAWS OF ANY JURISDICTION AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF UNLESS A REGISTRATION
STATEMENT IS IN EFFECT UNDER THE SECURITIES ACT AND ANY APPLICABLE
SECURITIES LAWS WITH RESPECT TO SUCH SECURITIES OR A WRITTEN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY IS PROVIDED TO THE COMPANY
TO THE EFFECT THAT NO REGISTRATION IS REQUIRED UNDER SUCH SECURITIES
LAWS."
B. Notice of Proposed Transfers.
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1. The holder of the Shares, the Warrants or Warrant Shares bearing a
restrictive legend set forth in Section VI.A above ("Restricted
Securities"), by acceptance thereof, agrees that, unless a
registration statement is in effect under the Securities Act and
under applicable securities laws with respect to such Restricted
Securities, prior to any transfer or attempted transfer of such
Restricted Securities, such holder will give the Company (i)
written notice describing the proposed transfer of any Restricted
Securities in reasonable detail, (ii) such other information about
the proposed transferee of such Restricted Securities as the
Company may reasonably request and (iii) an opinion of counsel
(both counsel and opinion reasonably satisfactory to the Company)
to the effect that the proposed transfer of such Restricted
Securities may be effected without registration of such Restricted
Securities under the Securities Act and under other applicable
securities laws.
2. If the holder of the Restricted Securities delivers to the Company
the information required in Section VI.B.1 above (including without
limitation an opinion of counsel that subsequent transfers of such
Restricted Securities will not require registration or
qualification under the Securities Act or under other applicable
securities law), the Company will or will cause the transfer agent
for such Restricted Securities promptly after notice of such
contemplated transfer to deliver new certificates for such
Restricted Securities that do not bear that section of the
restrictive legend set forth in Section VI.A above imposed by the
Securities Act and under other applicable securities laws of any
other jurisdictions. If the foregoing conditions entitling the
holder to effect a proposed transfer of such Restricted Securities
without registration under the Securities Act and under other
applicable securities laws have not been satisfied, Investor shall
not transfer the Restricted Securities, and the Company will cause
the transfer agent not to transfer such Restricted Securities on
its books or issue any certificates representing such Restricted
Securities. Any
purported transfer of Restricted Securities not in accordance with
applicable securities laws shall be void.
3. The restrictions imposed by this Agreement with respect to the
Securities Act and under other applicable securities laws of any
other jurisdictions upon the transferability of any particular
shares of Restricted Securities shall cease and terminate when such
shares of Restricted Securities have been sold pursuant to an
effective registration statement under the Securities Act or under
other applicable securities laws or transferred pursuant to Rule
144 promulgated under the Securities Act.
4. As used in this Agreement, the term "transfer" encompasses any
sale, transfer, pledge or other disposition of any Common Stock
referred to herein.
VII. Miscellaneous.
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A. Survival of Representations, Warranties and Covenants. The
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representations, warranties and covenants of the parties contained in
this Agreement and in any document delivered or to be delivered
pursuant to this Agreement and in connection with the Closings
hereunder shall survive such Closings. The parties have made no
representations or warranties other than those that are expressly set
forth in this Agreement.
B. Entire Agreement. This Agreement (including Exhibits hereto) and the
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Warrants to which the parties hereto are parties, constitute the entire
agreement between the parties hereto and supersede all prior agreements
and understandings, oral and written, between the parties hereto with
respect to the subject matter hereof.
C. Severability. Any provision of this Agreement that is prohibited,
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unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or lack of authorization without invalidating the
remaining provisions hereof or affecting the validity, unenforceability
or legality of such provision in any other jurisdiction.
D. Binding Effect; Benefit. This Agreement shall inure to the benefit of
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and be binding upon the parties hereto, and their respective
successors, legal representatives and permitted assigns. Nothing in
this Agreement, express or implied, is intended to confer on any person
other than the parties hereto, and their respective successors, legal
representatives and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
E. Amendment Waiver. No provision of this Agreement may be amended,
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waived or otherwise modified except by an instrument in writing
executed by the parties hereto.
F. Expenses. Each party shall pay its own fees and expenses, including
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attorney's fees, incurred in connection with this Agreement and the
other agreements and transactions contemplated hereby.
G. Assignments. Neither party can assign this Agreement without the prior
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written consent of the other.
H. Headings. The Articles and Section headings contained in this
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Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
I. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
J. Applicable Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Oregon without giving effect
to the principles of conflicts of laws thereof. The courts residing in
the State of Oregon shall have exclusive jurisdiction over any dispute
arising out of or related to this Agreement, or the purchase of the
Shares, Warrants or Warrant Shares.
K. Remedies. The remedies provided in this Agreement are cumulative and
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not exclusive of any remedies provided by law.
L. Notices and Payment.
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1. All notices, requests, demands and other communications hereunder
shall be in writing and, except to the extent otherwise provided in
this Agreement, shall be deemed to have been duly given if
delivered by same day or next day courier or mailed, registered
mail, return receipt requested, or transmitted by telegram, telex
or facsimile.
if to the Investor:
with a copy to:
if to the Company:
OXIS International, Inc.
0000 X Xxxxxx Xxxxxx
Xxxxx 000
` Xxxxxxxx, XX 00000
FAX: 000.000.0000
PHONE: 000.000.0000
If a notice hereunder is sent by next-day courier it shall be
deemed to have been given the day following sending and, if by
registered mail, five business days following sending and if sent
by facsimile, when receipt is acknowledged by recipient's
facsimile machine operator.
2. Unless otherwise provided in this Agreement, payments hereunder
shall be made by wire transfer of immediately available funds.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
OXIS International, Inc
a Delaware corporation
By_________________________________
Name:
Title:
INVESTOR:
____________________________________
(Print Name)
By_________________________________
Name:
Title:
