EX-10.(B)
OXIS INTERNATIONAL, INC.
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ADMISSION TO LISTING
ON THE NOUVEAU MARCHE
LISTING ADVISOR - MARKET MAKING AGREEMENT
LISTING ADVISOR - MARKET MAKING AGREEMENT
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BETWEEN:
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OXIS INTERNATIONAL, INC.
represented by Xx. Xxx X. Xxxxxx
("the Company")
firstly
AND
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Xx. Xxx X. Xxxxxx
Xx. Xxxx X. Xxxxxx
("the Shareholders")
secondly
AND:
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Credit Lyonnais
represented by Mr.
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("CL" or "ITM")
thirdly
(THE COMPANY, THE SHAREHOLDERS AND THE ITM ARE HEREAFTER
DESIGNATED COLLECTIVELY "THE PARTIES"
AND INDIVIDUALLY A "PARTY")
WHEREAS:
1. The Company and Credit Lyonnais concluded on 15 October 1996 a contract
whereby the former has instructed the latter to prepare, syndicate and complete
the admission to listing of its common stock on the Nouveau Marche of the Paris
Bourse (hereinafter the "Admission").
2. The Company and Credit Lyonnais have jointly filed an application for
such Admission to listing of the shares of the Company with Societe du Nouveau
Marche.
3. The shares will be placed and underwritten (the "Placement") in France
and abroad outside of the United States of America in accordance with the
procedure set out in article 3.2.3 of the Operating Regulations of the Nouveau
Marche. For this purpose, the Company, Credit Lyonnais and Nomura International
have today signed an Underwriting Agreement.
The purpose of this agreement is to define the respective obligations
of the Parties as regards the making of a market in respect of the Company's
shares.
WHEREBY THE FOLLOWING HAS BEEN AGREED
ARTICLE 1. DESIGNATION OF THE LISTING ADVISOR - MARKET MAKER
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1.1. The Company instructs Credit Lyonnais, which was officially authorized
as a Listing Advisor - Market Maker on the Nouveau Marche on 14 February 1996,
and which accepts the task proposed, to make a market in respect of the
Company's shares of common stock from the data of Admission to listing on the
Nouveau Marche and until the end of a period of three (3) years (the "Period")
running from the same date.
1.2. Credit Lyonnais agrees to act as market maker for the shares of the
Company on the conditions stated in this agreement and in accordance with the
Operating Regulations of the Nouveau Marche and the instructions relating
thereto.
ARTICLE 2. - AVAILABILITY OF SHARES, SALES MANDATE
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2.1. To enable Credit Lyonnais to make a market in respect of the Company's
shares during the Period, on the conditions stated in the Operating Regulations
of the Nouveau Marche and the instructions relating thereto,
(i) in the event that the Shareholders request the return of their Shares
supplied to Credit Lyonnais pursuant to the terms of Article 2.1(ii) hereof, the
Company agrees to carry out after the date of Admission to listing on the
Nouveau Marche an additional issue of new shares of common stock in order to
make available to Credit Lyonnais 150,000 new shares of common stock of the
Company (the "Company's Shares") during the period from the completion of the
above-mentioned additional issue of the Company's shares of common stock and
until the end of a period
of three years (the "Second Period"); the Parties acknowledge that such shares
may only be issued after a registration statement registering the offer and sale
of such shares has been declared effective by the U.S. Securities and Exchange
Commission (the "Effective Date"); and
(ii) the Shareholders agree from the date commencing 40 days after the
Admission to listing on the Nouveau Marche and until they request the return of
their Shares and the registration statement covering the Company's Shares has
been declared effective on the Effective Date (the "First Period"), on the
conditions defined in this agreement, to place in trust with Credit Lyonnais
150,000 shares of common stock of the Company (hereinafter the "Shares of the
Shareholders") in the following proportions:
Shareholders Quantity
Xxx X. Xxxxxx 75,000
Xxxx X. Xxxxxx 75,000
The Company's Shares and the Shares of the Shareholders will hereafter be
designated as the "Shares". The Shares of the Shareholders shall be removed from
trust if other shares of the Company's common stock owned by other shareholders
are substituted for such Shares and such other shareholders enter into this
agreement.
2.2. The Shareholders during the First Period or the Company during the
Second Period irrevocably grants to Credit Lyonnais the powers and authority
required for selling during the respective periods, on its behalf and for its
account, at a price to be determined by Credit Lyonnais in its reasonable
discretion, all or part of the Shares, for the purposes contemplated by this
agreement only.
2.3.1. To cover the sales made under the terms of this mandate during the
Second Period, the Company irrevocably agrees to have transferred to France for
this purpose the number of shares requested by the ITM representing shares
covered by those sales, at the latest 3 business days after the request by the
ITM to such account opened in the name or for the benefit of Credit Lyonnais
(hereafter "CLSC").
2.3.2. To cover the sales made under the terms of this mandate during the First
Period, the Shareholders hereby irrevocably agree to the transfer of the Shares
of the Shareholders to such account opened in the name or for the benefit of
Credit Lyonnais (or CLSC) (subject to the terms of this Agreement) as the ITM
may designate. All sales of the Shares of the Shareholders made by Credit
Lyonnais during the First Period shall be made pro-rata with the proportions set
forth in Section 2.1 above. Immediately upon the expiration of the First Period
any Shares of the Shareholders which have not been sold by Credit Lyonnais
during the First Period will be returned to the Shareholders pro-rata with the
proportions set forth in Section 2.1 above.
2.3.3. The mandates conferred above by the Company and by each Shareholder on
Credit Lyonnais include the power to execute all deeds, enter into all
commitments, sign all documents, receive the selling price of the Shares and in
general take all necessary actions.
2.3.4. Decisions to sell all or part of the Shares will be taken at the
discretion of Credit Lyonnais consistent with the terms of this agreement. All
decisions to sell the Shares (including, without limitation, the timing of such
sales and the price and quantity of the Shares to be sold) shall be made
exclusively by Credit Lyonnais without any consultation with or prior notice to,
the Shareholders or the Company. All voting rights of the Shares of the selling
Shareholders shall, to the extent practicable, be retained by the Shareholders
until such time as said Shares have been sold by Credit Lyonnais.
2.3.5. The Company agrees to retain during the Second Period the quantity of
Shares covered by the commitment, less those shares already delivered at the
request of CLSC. To the extent the Shareholders' Shares are sold by Credit
Lyonnais during the First Period, the Company shall not be required to supply
Company Shares during the Second Period.
ARTICLE 3. - COMMITMENTS OF THE LISTING ADVISOR - MARKET MAKER
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Notwithstanding the terms of Article 1.1 of this agreement, Credit
Lyonnais agrees from today onwards to:
. assist the Company in drawing up the information documents
required for Admission and take necessary steps to verify that
the prospectus does not include any contradiction or
inaccuracies with regard to material points in relation to
information collected for the Admission;
. publish a financial analyzer's report on the Company at the time
of its Admission and at the close of the fiscal years 1997
through 1999.
ARTICLE 4. - DUTY OF THE COMPANY AND THE SELLING SHAREHOLDERS TO PROVIDE
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INFORMATION
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The Company will provide Credit Lyonnais with copies of the annual and
quarterly interim accounts established during the Period as soon as they are
available.
ARTICLE 5. - DUTY OF CREDIT LYONNAIS
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Credit Lyonnais agrees to inform the Shareholders during the First
Period and the Company during the Second Period of any sales contemplated within
two (2) business days subsequent to their completion.
Credit Lyonnais agrees to deliver the proceeds of the sale of the
Shares made available to it by the Shareholders or by the Company to an account
designated by such shareholder concerned or by the Company promptly in
accordance with prevailing market practice after the completion of the sale.
Credit Lyonnais will be entitled to charge normal brokerage commissions and
related charges on the sale of the Shares.
Credit Lyonnais agrees as a listing advisor market maker to abide by
all applicable French laws and regulations. In particular Credit Lyonnais agrees
to use the Shares made available to it by the Shareholders or the Company only
for the purpose of ensuring the liquidity of the shares.
ARTICLE 6. - TERM
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This agreement will come into force on this day and will terminate at
the end of the Period, it being understood that the Shareholders will cease to
be party to this agreement as soon as the additional issue of the Company's
shares of common stock as described in Article 2.1 above is completed.
Notwithstanding the preceding provisions, this agreement will
terminated ipso jure on the date at which Credit Lyonnais ceases, in agreement
with the Company and the Societe du Nouveau Marche, to make a market in respect
of the Company's shares.
ARTICLE 7. - REGULATORY CONDITIONS
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If the listing has not taken place on or before 31 December 1997, this
agreement will be terminated ipso jure without either Party being able to claim
any Indemnity thereby, provided that the failure to obtain the listing or
consummate the Placement is not due to a party's breach of the terms of this
agreement.
ARTICLE 8. - CONFIDENTIALITY
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The Parties agree that this agreement and the information it contains
are strictly confidential, and that, unless required by law or executive roles
or for judicial or administrative purposes, the terms of this agreement and this
information must not be disclosed in any manner to third parties without the
consent of the Company, Credit Lyonnais and a majority of the selling
Shareholders.
ARTICLE 9. - NOTIFICATION
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Any notice or other communications required or permitted to be given
hereunder shall not be valid unless delivered in person, transmitted by telecopy
or similar means of recorded electronic communication or sent by international
courier or by registered mail, charges prepaid, addressed as follows:
(i) if to the Company
Oxis International, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
XXX
Tel: 00 0 000 000 0000
Fax: 00 0 000 000 0000
(ii) if to the Shareholders
To their attention, in care of the Company as
provided above.
(iii) if to Credit Lyonnais
Credit Lyonnais
Direction des Marshes d'Actions (DMA)
00 xxx xx Xxxxxxxxx
00000 Xxxxx
Xxxxxx
Tel: 00 00 00 00 00
Fax: 00 00 00.00.00
Any such notice or other communication shall be deemed to have been
given and received on the day on which such notice is actually received by the
addressee.
Any party may at any time change its address for service from time to
time by giving notice to the other party in accordance with this Article 9.
ARTICLE 10. - APPLICABLE LAW AND JURISDICTION
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This agreement will be governed by and interpreted in accordance with
French law.
Any dispute arising from this agreement, its results or consequences
will be submitted to the Tribunal de Commerce de Paris (Paris commercial court).
Signed in Paris, May , 1997
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in the same number of copies as parties
Oxis International, Inc. Credit Lyonnais
Xxx X. Xxxxxx Xxxx X. Xxxxxx
