EXHIBIT 99.3
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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 REGULATION S 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 SECTION 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.
$2.00 per share in lawful money of the United States. The number of Warrant
Shares purchasable by Investor as set forth in the immediately preceding
sentence was determined by calculating 20% of the shares of Common Stock into
which the Debenture dated the date hereof purchased by Investor was convertible
on the date hereof. If the number of shares into which the principal of such
Debenture is convertible is increased (the "Debenture Conversion Shares") then
the number of Warrant Shares purchasable hereunder shall be increased so that
such Warrant Shares equal 20% of the Debenture Conversion Shares. This Warrant
is issued pursuant to that certain Subscription and Purchase Agreement
("Purchase Agreement") dated ________________________ between the Company and
the Investor (and other investors).
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Section 1. (a) Definitions. The following words and terms as used in
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this Warrant shall have the following meanings:
"Common Stock" means (a) the Company's common stock and (b) any
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capital stock into which such "Common Stock" shall have been changed or any
capital stock resulting from a reclassification of such "Common Stock."
"Convertible Securities" mean any securities issued by the Company
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which are convertible into or exchangeable for, directly or indirectly, shares
of Common Stock.
"Expiration Date" means November 1, 1996.
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"Warrant Exercise Price" shall initially be U.S. $2.00 per share and
----------------------
shall be adjusted and readjusted from time to time as provided in this Warrant.
(b) Other Definitional Provisions. (i) Except as otherwise
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specified herein, all references herein (A) to any person other than the
Company, shall be deemed to include such person's successors and assigns, (B) to
the Company shall be deemed to include the Company's successors and (C) to any
applicable law defined or referred to herein, shall be deemed references to such
applicable law as the same may have been or may be amended or supplemented from
time to time.
(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.
Section 2. Exercise of Warrant. (a) Subject to the terms and conditions
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hereof, this Warrant may be exercised, in whole or in part, at any time during
normal business hours on or after the opening of business on the date hereof and
prior to the close of business on the Expiration Date. The rights represented
by this Warrant may be exercised by the holder hereof then registered on the
books of the Company, in whole or from time to time in part (except that this
Warrant shall not be exercisable as to a fractional share) by (i) delivery of a
written notice, in the form of the Subscription Notice attached as Exhibit A
hereto, of such holder's election to exercise this Warrant, which notice shall
specify the number of Warrant Shares to be purchased, (ii) payment to the
Company of an amount equal to the Warrant Exercise Price multiplied by the
number of Warrant Shares as to which the Warrant is being exercised (plus any
applicable issue or transfer taxes) in cash or by certified or official bank
check, for the number of Warrant Shares as to which this Warrant shall have been
exercised, and (iii) the surrender of this Warrant, properly endorsed, at the
principal office of the Company in Portland, Oregon (or at such other agency or
office of the Company as the Company may designate by notice to the holder
hereof); provided, that if such Warrant Shares are to be issued in any name
other than that of the
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registered holder of this Warrant, such issuance shall be deemed a transfer and
the provisions of Section 11 shall be applicable. In addition, exercise of the
Warrant is expressly conditioned upon the delivery to the Company by the holder
thereof of either: (x) written certification that 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 (y) 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. THE WARRANT MAY NOT BE EXERCISED
WITHIN THE UNITED STATES AND THE WARRANT SHARES MAY NOT BE DELIVERED WITHIN THE
UNITED STATES UPON EXERCISE OF THE WARRANT, OTHER THAN IN OFFERINGS DEEMED TO
MEET THE DEFINITION OF AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 902 OF
REGULATION S, UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. EXERCISE OF THE WARRANT IS FULLY SUBJECT TO ALL
PROCEDURES ESTABLISHED BY THE COMPANY IN CONNECTION WITH THE FOREGOING SENTENCE
AND THE COMPANY WILL NOT HONOR ANY EXERCISE IF THE REQUIREMENTS OF THE FOREGOING
SENTENCE AND RELATED PROCEDURES ESTABLISHED BY THE COMPANY ARE NOT FULFILLED.
In the event of any exercise of the rights represented by this Warrant in
compliance with this Section 2(a), a certificate or certificates for the Warrant
Shares so purchased, registered in the name of, or as directed by, the holder,
shall be delivered to, or as directed by such holder within a reasonable time,
not exceeding 15 days, after such rights shall have been so exercised.
(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.
Section 3. Covenants as to Common Stock. The Company covenants and agrees
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that all Warrant Shares which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be validly issued, fully paid
and nonassessable. The Company further covenants and agrees that during the
period within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized 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.
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Section 4. Adjustment of Warrant Exercise Price Upon Stock Splits,
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Dividends, Distributions and Combinations; and Adjustment of Number of Shares.
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(a) In case the Company shall at any time subdivide its outstanding shares of
Common Stock into a greater number of shares or issue a stock dividend or make a
distribution with respect to outstanding shares of Common Stock or Convertible
Securities payable in Common Stock or in Convertible Securities, the Warrant
Exercise Price in effect immediately prior to such subdivision or stock dividend
or distribution shall be proportionately reduced (treating for such purpose any
such shares of Convertible Securities outstanding or payable as being the number
of shares of Common Stock issuable upon their conversion) and conversely, in
case the outstanding shares of Common Stock of the Company shall be combined
into a smaller number of shares, the Warrant Exercise Price in effect
immediately prior to such combination shall be proportionately increased in each
case by multiplying the then effective Warrant Exercise Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such action and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such action, and
the product so obtained shall thereafter be the 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.
Section 5. Notice of Adjustment of Warrant Exercise Price. Upon any
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adjustment of the Warrant Exercise Price, then the Company shall give notice
thereof to the registered holder of this Warrant, which notice shall state the
Warrant Exercise Price in effect after such adjustment and the increase, or
decrease, if any, in the number of shares purchasable at the Warrant Exercise
Price upon the exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation is based.
Section 6. Computation of Adjustments. Upon each computation of an
--------------------------
adjustment in the Warrant Exercise Price and the number of shares which may be
subscribed for and purchased upon exercise of this Warrant, the Warrant Exercise
Price shall be computed to the nearest cent (i.e., fractions of .5 of a cent, or
greater, shall be rounded to the next highest cent) and the number of shares
which may be subscribed for and purchased upon exercise of this Warrant shall be
calculated to the nearest whole share (i.e., fractions of less than one half of
a share shall be disregarded and fractions of one half of a share, or greater,
shall be treated as being a whole share).
Section 7. No Change in Warrant Terms on Adjustment. Irrespective of any
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adjustment in the Warrant Exercise Price or the number of shares of Common
Stock issuable upon exercise hereof, this Warrant, whether theretofore or
thereafter issued or reissued, may continue to express the same price and number
of shares as are stated herein and the Warrant Exercise Price and such number of
shares specified herein shall be deemed to have been so adjusted.
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Section 8. Taxes. The Company shall not be required to pay any tax or
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taxes attributable to the initial issuance of the Warrant Shares or any
transfer involved in the issue or delivery of any certificates for Warrant
Shares of Common Stock in a name other than that of the registered holder hereof
or upon any transfer of this Warrant.
Section 9. Warrant Holder Not Deemed a Shareholder. No holder, as such,
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of this Warrant shall be entitled to vote or receive dividends or be deemed
the holder of shares of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote,
give or withhold consent to any corporate action (whether any reorganization,
issue of stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive 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.
Section 10. No Limitation on Corporate Action. No provisions of this
---------------------------------
Warrant and no right or option granted or conferred hereunder shall in any way
limit, affect or abridge the exercise by the Company of any of its corporate
rights or powers to recapitalize, amend its Certificate of Incorporation,
reorganize, consolidate or merge with or into another corporation, or to
transfer all or any part of its property or assets, or the exercise of any other
of its corporate rights and powers.
Section 11. Transfer; Opinions of Counsel; Restrictive Legends.
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(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.
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(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.
Section 12. Exchange of Warrant. This Warrant is exchangeable upon the
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surrender hereof by the holder hereof at such office or agency of the Company,
for new Warrants of like tenor representing in the aggregate the right to
subscribe for and purchase the number of shares which may be subscribed for
and purchased hereunder from time to time after giving effect to all the
provisions hereof, each of such new Warrants to represent the right to subscribe
for and purchase such number of shares as shall be designated by said holder
hereof at the time of such surrender.
Section 13. Lost, Stolen, Mutilated or Destroyed Warrant. If this
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Warrant is lost, stolen, mutilated or destroyed, the Company shall, on such
terms as to indemnity or otherwise as it may in its discretion impose (which
shall, in the case of a mutilated Warrant, include the surrender thereof), issue
a new Warrant of like denomination and tenor as the Warrant so lost, stolen,
mutilated or destroyed. Any such new Warrant shall constitute an original
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
Section 14. Representation of Holder. The holder of this Warrant, by the
------------------------
acceptance hereof, represents that it is acquiring this Warrant for its own
account for investment and not with a view to, or sale in connection with, any
distribution hereof or of any of the shares of Common Stock or other securities
issuable upon the exercise thereof, nor with any present intention of
distributing any of the same.
Section 15. Notice. All notices and other communications under this
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Warrant shall (a) be in writing (which shall include communications by
telecopy), (b) be (i) sent by registered or certified mail, postage prepaid,
return receipt requested, by telecopier, or (ii) delivered by hand, (c) be given
at the following respective addresses and telecopier numbers and to the
attention of the following persons:
(i) if to the Company, to it at:
OXIS International, Inc.
Corporate Headquarters
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxx X. Xxxxxx, Chairman
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy to:
Jackson, Tufts, Xxxx & Black
00 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
(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.
Section 16. Miscellaneous. This Warrant and any term hereof may be
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changed, waived, discharged, or terminated only by an instrument in writing
signed by the party or holder hereof against which enforcement of such change,
waiver, discharge or termination is sought. The headings in this Warrant are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Warrant shall be governed by and interpreted under the
laws of the State of Oregon.
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Section 17. Date. The date of this Warrant is _________________________.
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This Warrant, in all events, shall be wholly void and of no effect after the
close of business on the Expiration Date, except that notwithstanding any other
provisions hereof, the provisions of Section 11 shall continue in full force and
effect after such date as to any Warrant Shares or other securities issued upon
the exercise of this Warrant.
OXIS INTERNATIONAL, INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
ACCEPTED.
INVESTOR:
BY:_______________________________
Name:_____________________________
Title:____________________________
Address:__________________________
__________________________________
__________________________________
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EXHIBIT A TO WARRANT
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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:
By: ______________________________
Name:
Title:
Address: ___________________________
____________________________________
____________________________________
____________________________________
Number of Warrant Shares Being Purchased:
____________________________________
Dated: ______________, 199___.
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