SECURITIES PURCHASE AGREEMENT
Exhibit 99.1
THIS
SECURITIES PURCHASE AGREEMENT, (the “Agreement”) made this 13 day of October
2009 (the “Effective Date”), by and among Bristol Investment Fund, Ltd., a
Cayman Islands company with a registered office at Xxxxxxxxxx Xxxxx, 00 Xxx’s
Drive, X.X. Xxx 0000, Xxxxx Xxxxxx XX0-0000, Xxxxxx Xxxxxxx (“Seller”) and
Theorem Group, LLC, with offices at 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx
Xxxxxxx, XX 00000 (“Buyer”).
W I T N E
S S E T H:
WHEREAS,
the Seller holds 25,000 shares of Series G convertible preferred stock (the
“Preferred Shares”) of Oxis International, Inc. (the “Company”), represented by
stock certificate number G-01 (the “Preferred Stock Certificate”), a copy of
which is attached hereto as Exhibit A;
WHEREAS,
the Preferred Shares have an aggregate stated value of $25,000.00 and are
governed by the terms set forth in the Certificate of Designation for the
Preferred Shares (the “Certificate of Designation”), a copy of which is attached
hereto as Exhibit B;
WHEREAS,
the Seller desires to sell to Buyer, and Buyer desires to purchase from Seller,
the Preferred Shares, for an aggregate purchase price of $25,000.00 (the
“Purchase Price”), which Purchase Price shall be paid through the issuance of a
promissory note by Buyer to Seller in the original principal amount of
$25,000.00, in the form attached hereto as Exhibit C (the “Note”);
NOW, THEREFORE, in consideration of the
mutual promises, covenants, and representations contained herein, and subject to
the terms and conditions hereof, the Buyer and Seller agree as
follows:
1. Purchase of Preferred
Shares. On the Closing Date, as defined below, upon the terms
and subject to the conditions set forth herein, substantially concurrent with
the execution and delivery of this Agreement by the parties hereto, the Seller
agrees to sell, and the Buyer agrees to purchase, the Preferred
Shares. The Buyer shall deliver to the Seller (i) a copy of the
executed Note on the Closing Date via electronic mail or facsimile, and (ii) the
originally executed Note via overnight courier to the address specified by
Seller within one (1) business day after the Closing Date. The Seller
shall deliver to the Buyer (i) a copy of the Preferred Stock Certificate on the
Closing date via electronic mail or facsimile, and (ii) the original Preferred
Stock Certificate via overnight courier to the address specified by Buyer within
one (1) business day after the Closing Date. The Closing Date
shall be the date that this Agreement is fully executed.
2. Closing. On the
Closing Date, the parties shall perform, in order:
a) Buyer
shall deliver a fully executed copy of this Agreement;
b) Seller
shall deliver a fully executed copy of this Agreement;
c) Buyer
shall deliver an executed copy of the Note to the Seller, with the
originally
executed
Note to be delivered to Seller via overnight courier within one (1) business day
after the Closing Date to the address specified by Seller; and
d) Seller
shall deliver a copy of the Preferred Stock Certificate to the Buyer, with the
original Preferred Stock Certificate to be delivered to Buyer via overnight
courier within one (1) business day after the Closing Date to the address
specified by Buyer.
3. Transfer of Preferred Shares
to Buyer. Seller and Buyer acknowledge and agree that the sale
of the Preferred Shares from Seller to Buyer shall terminate any and all of
Seller’s rights to and under the Preferred Shares, and such rights shall vest
immediately with Buyer on the Closing Date. Seller does not bear any
responsibility for instructing or otherwise causing the Company to cancel the
Preferred Stock Certificate in Seller’s name and reissue such certificate in
Buyer’s name (the “Stock Certificate Transfer”). Buyer agrees and
acknowledges that responsibility for the Stock Certificate Transfer shall rest
solely with the Buyer. Seller agrees to cooperate with Buyer in
Buyer’s efforts to effectuate the Stock Certificate Transfer should Seller’s
cooperation become necessary, but such cooperation shall not be deemed an
obligation under this Agreement or any other agreement.
4. Representations and
Warranties of Seller. Seller hereby represents and
warrants to Buyer, through the date and time of the Closing Date, that the
statements in the following paragraphs of this Section 4 are all true and
complete as of the Effective Date:
a) Title
to Preferred Shares. Seller is the record and beneficial owner and
has sole managerial and dispositive authority with respect to the Preferred
Shares. The sale and delivery of the Preferred Shares will vest in
Buyer the legal and valid title to the Preferred Shares, free and clear of all
liens, security interests, adverse claims or other encumbrances of any character
whatsoever.
b) Full
Power and Authority. Seller represents that it has full power and authority to
enter into this Agreement.
c) No
brokerage or finder's fees or commissions are or will be payable by any party as
a result of actions taken by Seller to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other person
with respect to the transactions contemplated by this Agreement.
5. Representations and
Warranties of Buyer. Buyer hereby represents and
warrants to Seller, through the date and time of the Closing Date, that the
statements in the following paragraphs of this Section 5 are all true and
complete as of the Effective Date:
a) Exempt
Transaction; Legend. Buyer understands that the offering and
sale of the Preferred Shares is intended to be exempt from registration under
the Securities Act of 1933, as amended (the “Act”) and exempt from registration
or qualification under any state law.
b) Full
Power and Authority. Buyer represents that it has full power and
authority to enter into this Agreement.
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c)
Information Concerning the Company. Buyer has conducted his own due
diligence with respect to the Company and its liabilities and believes it has
enough information upon which to base its decision to purchase the Preferred
Shares.
d) No
brokerage or finder's fees or commissions are or will be payable by any party as
a result of actions taken by Buyer to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other person
with respect to the transactions contemplated by this Agreement.
6. Governing Law;
Jurisdiction. Any dispute, disagreement, conflict of
interpretation or claim arising out of or relating to this Agreement, or its
enforcement, shall be governed by the laws of the State of New
York. Buyer and Seller hereby irrevocably and unconditionally submit
for themselves and their property, to the nonexclusive jurisdiction of Federal
and State courts of the State of New York and any appellate court thereof, in
any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agree that all claims in respect of any
such action or proceeding may be heard and determined in New York, or, to the
extent permitted by law, in such Federal court. Each of the parties
hereto agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to above. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices below. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in any legal proceeding directly or indirectly arising out of
or relating to this agreement or the transactions contemplated hereby (whether
based on contract, tort or any other theory). If either party shall
commence an action or proceeding to enforce any provisions of this Agreement,
then the prevailing party in such action or proceeding shall be reimbursed by
the other party for its reasonable attorneys’ fees and other costs and expenses
including but not limited to court costs incurred with the investigation,
preparation and prosecution of such action or proceeding.
7. Termination. The
parties may not, except for a material breach or failure of a condition or
requirement, terminate this Agreement.
8. Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties.
9. Counterparts. This
Agreement may be executed in two (2) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same agreement. A telefaxed copy or electronic copy in PDF format of
this Agreement shall be deemed an original.
10. Headings. The
headings used in this Agreement are for convenience of reference
only
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and shall
not be deemed to limit, characterize or in any way affect the interpretation of
any provision of this Agreement.
11. Costs,
Expenses. Each party hereto shall bear its own costs in
connection with the preparation, execution and delivery of this
Agreement.
12. Modifications and
Waivers. No change, modification or waiver of any provision of
this Agreement shall be valid or binding unless it is in writing, dated
subsequent to the Effective Date of this Agreement, and signed by both the Buyer
and Seller. No waiver of any breach, term, condition or remedy of this Agreement
by any party shall constitute a subsequent waiver of the same or any other
breach, term, condition or remedy. All remedies, either under this
Agreement, by law, or otherwise afforded the parties shall be cumulative and not
alternative.
13. Severability. If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so
excluded and shall be enforceable in accordance with its terms.
14. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings duties or obligations between the parties with respect to the
subject matter hereof.
15. Further
Assurances. From and after the date of this Agreement,
upon the request of the Buyer or Seller, Buyer and Seller shall execute and
deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
16. Term,
Survival. This Agreement is effective from the Effective Date
hereof, and shall remain in effect until all the rights and obligations of the
parties hereto have been fully performed.
17. Notices. All
notices or other communications required or permitted by this Agreement shall be
in writing and shall be deemed to have been duly received:
a) if
given by telecopier, when transmitted and the appropriate telephonic
confirmation received if transmitted on a business day and during normal
business hours of the recipient, and otherwise on the next business day
following transmission,
b) if
given by certified or registered mail, return receipt requested, postage
prepaid, three business days after being deposited in the U.S. mails
and
c) if
given by courier or other means, when received or personally delivered, and, in
any such case, addressed as indicated herein, or to such other addresses as may
be specified by any such person to the other person pursuant to notice given by
such person in accordance with the provisions of this Section 17.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
| SELLER | BUYER | |||
| BRISTOL INVESTMENT FUND, LTD. | THEOREM GROUP, LLC | |||
|
/s/
Xxxx Xxxxxxx
|
/s/
Xxxxxxxx Xxxx
|
|||
|
Name:
Xxxx Xxxxxxx
|
Name:
Xxxxxxxx "Andy" Xxxx
|
|||
|
Title:
Director
|
Title:
Managing Director
|
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