EXHIBIT 99.2
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SECURITIES SUBSCRIPTION AGREEMENT
This Securities Subscription Agreement (the "Agreement"), dated as of
December 10, 1996, is entered into by and between OXIS International, Inc., a
Delaware corporation (the "Issuer"), and ____________________ (the
"Purchaser").
The parties hereto agree as follows:
1. PURCHASE AND SALE OF INITIAL SHARES AND PREFERRED SHARES. Upon the
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basis of the representations and warranties, and subject to the terms and
conditions set forth in this Agreement, the Issuer covenants and agrees to sell
to the Purchaser on the Closing Date (as hereinafter defined) (I)
__________________________(_____) shares (the "Initial Shares") of the Issuer's
common stock (the "Common Stock"), and (II) _______________ (_____) shares (the
"Preferred Shares") of its Series E Preferred Stock (the "Preferred Stock"),
each such Preferred Share convertible in accordance with the terms and
conditions of the Issuer's Certificate of Designation for the Preferred Stock
(the "Certificate of Designation") at any time on or after 120 days following
the Closing Date (as defined below), or such earlier date as provided for in the
Certificate of Designation, (any such date of conversion, the "Conversion Date")
into shares (the "Conversion Shares" and together with the Initial Shares and
the Preferred Shares, the "Shares") of the Common Stock at a purchase price of
$_________ (the "Purchase Price").
2. CLOSING. The closing of the purchase and sale of the Initial Shares
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and the Preferred Shares pursuant to Section 1 hereof shall take place on
December, 10, 1996, at the offices of Morse, Zelnick, Rose & Lander, LLP, 000
Xxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, or at such other date, time and
place as the Purchaser and the Issuer may agree upon in writing (such time and
date for the closing, the "Closing Date"). The legended certificates
representing the Initial Shares and the Preferred Shares to be purchased by the
Purchaser shall be delivered by, or on behalf of, the Issuer, at the closing
against payment of the Purchase Price therefor in immediately available funds
by, or on behalf of, the Purchaser to the attorney trust account of Morse,
Zelnick, Rose & Lander, LLP, (the "Escrow Agent") ( Chase Manhattan Bank,
Account No. 9670866390, ABA Routing Number 000000000). The Escrow Agent shall
receive from the Purchaser and the Issuer written instructions of the Purchaser
and the Issuer in substantially the form of Exhibit A hereto (the "Closing
Instructions"), instructing the Escrow Agent with respect the closing and
settlement procedures. Commencing on the second business day after delivery to
the Escrow Agent of the Purchase Price, the Purchaser, if the Issuer is not
ready, willing and able to consummate the transaction in accordance with the
terms of the Closing Instructions, may terminate the proposed transaction by
notice to the Issuer and the Escrow Agent, whereupon the Escrow Agent shall
redeliver the Purchase Price to the Purchaser as soon as practicable in
accordance with the written instructions of the Purchaser.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
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understands, and represents and warrants to the Issuer, that:
(a) The Initial Shares and the Preferred Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
or any other applicable securities law, and accordingly, none of the Shares may
be offered, sold, transferred, pledged, hypothecated
or otherwise disposed of ("Transferred") unless registered pursuant to, or in a
transaction exempt from registration under the Securities Act and any other
applicable securities law.
(b) The Purchaser is an "accredited investor" within the meaning of
Rule 501(a) under the Securities Act (an "Accredited Investor") that is
acquiring the Shares for its own account. The Purchaser has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of an investment in the Shares. The Purchaser is aware that
it may be required to bear the economic risk of an investment in the Shares for
an indefinite period, and it is able to bear such risk for an indefinite period.
The Purchaser has received copies of all of the filings (the "Issuer's Filings")
made by the Issuer during 1996 pursuant to the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act"), and has been
given access to sufficient information to make an informed investment decision
concerning the Shares.
(c) The Purchaser is acquiring the Shares for its own account for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution thereof. The Purchaser agrees to offer, sell or otherwise
transfer the Shares only pursuant to a registration under the Securities Act and
any other applicable securities law, or an exemption therefrom.
(d) The Purchaser acknowledges that the Issuer and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations
and agreements and further agrees that if any of the acknowledgments,
representations and agreements deemed to have been made by the Purchaser by its
acquisition of the Shares are no longer accurate, it shall promptly notify the
Issuer.
4. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer represents
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and warrants to, and agrees with, each Purchaser that except as set forth on the
Schedule of Exceptions annexed hereto:
(a) The Issuer has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed and delivered
by the Issuer and is a valid and binding agreement enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights generally or to general principles of equity; and
the Issuer has full corporate power and authority necessary to enter into this
Agreement and to perform its obligations hereunder.
(c) No consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over the Issuer or
any of its affiliates is required for execution of this Agreement, including,
without limitation, the issuance and sale of the Shares or the performance of
its obligations hereunder.
(d) Neither the sale of the Shares pursuant to, nor the performance
of its obligations under, this Agreement by the Issuer will:
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(i) violate, conflict with, result in a breach of, or constitute
a default (or an event which with the giving of notice or the lapse of time
or both would be reasonably likely to constitute a default) under (A) the
certificate of incorporation, charter or by-laws of the Issuer or any of
its affiliates, (B) any decree, judgment, order, law, treaty, rule,
regulation or determination applicable to the Issuer or any of its
affiliates of any court, governmental agency or body, or arbitrator having
jurisdiction over the Issuer or any of its affiliates or over the
properties or assets of the Issuer or any of its affiliates, (C) the terms
of any bond, debenture, note or other evidence of indebtedness, or any
agreement, stock option or other similar plan, indenture, lease, mortgage,
deed of trust or other instrument to which the Issuer or any of its
affiliates is a party, by which the Issuer or any of its affiliates is
bound, or to which any of the properties of the Issuer or any of its
affiliates is subject, or (D) the terms of any "lock-up" or similar
provision of any underwriting or similar agreement to which the Issuer or
any of its affiliates is a party; or
(ii) result in the creation or imposition of any lien, charge or
encumbrance upon the Shares or any of the assets of the Issuer or any of
its affiliates.
(e) The Shares (i) are, or will be upon issuance, free and clear of
any security interests, liens, claims or other encumbrances; (ii) have been duly
and validly authorized and will be duly and validly issued, fully paid and
nonassessable; (iii) will not have been individually and collectively, issued or
sold in violation of any preemptive or other similar rights of the holders of
any securities of the Issuer; and (iv) will not subject the holders thereof to
personal liability by reason of being such holders.
(f) There is no pending or, to the best knowledge of the Issuer,
threatened action, suit, proceeding or investigation before any court,
governmental agency or body, or arbitrator having jurisdiction over the Issuer
or any of its affiliates that would materially affect the results of operations
of the Issuer or the execution by the Issuer of, or the performance by the
Issuer of its obligations under, this Agreement.
(g) The Issuer, and, to the best knowledge of the Issuer, any other
person selling or offering to sell the Shares in connection with the transaction
contemplated by this Agreement, have not made, at any time, any oral
communication in connection with the offer or sale of the Shares which contained
any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading, taking all of such statements, the
Issuer's Filings and this Agreement as a whole.
(h) The Issuer is not in possession of any material non-public
information that, if publicly disclosed, would, or could reasonably be expected
to have, an effect on the price of the Shares.
(i) Assuming the accuracy of Purchaser's representations and
warranties set forth herein, the sale of the Shares pursuant to this Agreement
has been made in accordance with the provisions and requirements of Regulation D
under the Securities Act ("Regulation D") and any applicable state law.
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(j) None of the Issuer, any affiliate of the Issuer, or, to the
knowledge of the Issuer, any person acting on behalf of the Issuer or any such
affiliate has engaged, or will engage, in any general solicitation or general
advertising with respect to the Shares.
(k) The Issuer has timely made all filings required under the
Securities Exchange Act during the twelve month period preceding the date hereof
and is eligible to use Form S-3 to register the Initial Shares and the
Conversion Shares under the Securities Act.
5. COVENANTS OF THE ISSUER. The Issuer covenants and agrees with the
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Purchaser to:
(a) Comply with all requirements of Regulation D with respect to the
Shares, including without limitation, filing a Form D; and
(b) Notify the Purchaser promptly if at any time during the period
beginning on the date of this Agreement and ending on the final Conversion Date
(i) any event shall have occurred as a result of which any written communication
made by the Issuer, or to the best knowledge of the Issuer, any person
representing the Issuer, would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (ii) there is any public disclosure of material information
regarding the Issuer or its financial condition or results of operation.
(c) Timely make all filings required pursuant to the Securities
Exchange Act in order to preserve the Issuer's eligibility to register the
Initial Shares and the Conversion Shares on Form S-3.
6. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS. The obligations of
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the Purchaser hereunder are subject to the performance by the Issuer of its
obligations hereunder and to the satisfaction of the following additional
conditions precedent:
(a) The representations and warranties made by the Issuer in this
Agreement shall, unless waived by the Purchaser, be true and correct as of the
date hereof and at the Closing Date, with the same force and effect as if they
had been made on and as of the Closing Date.
(b) The Issuer and the Purchaser shall have entered into a
Registration Rights Agreement substantially in the form of Exhibit B hereto;
(c) The Issuer will provide an opinion of counsel confirming in
substance the representations and warranties set out in paragraphs (a), (b),
(c), (d), (e) and (k) of Section 4 hereof in substantially the form of Exhibit C
hereto;
(d) None of the following shall have occurred: (i) any general
suspension of, or limitation on prices for, quotes for the Common Stock on the
NASDAQ, (ii) a declaration of a banking moratorium or any suspension of payments
in respect to banks in the United States, (iii) a commencement of a war, armed
hostilities or other international or national calamity directly or indirectly
involving the United States, (iv) any limitation by federal or state authorities
on the extension of credit by lending institutions which materially and
adversely affects the Purchaser, (v)
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in the case of the foregoing existing at the date of this Agreement, a material
acceleration or worsening thereof, or (vi) at any time up to and including the
day before the Closing Date, the Common Stock shall trade on the NASDAQ at a
price below $_____ per share, upon notification to the Issuer by the Purchaser.
7. CONDITIONS PRECEDENT TO THE ISSUER'S OBLIGATIONS. The obligations of
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the Issuer hereunder are subject to the performance by the Purchaser of its
obligations hereunder and to the satisfaction of the condition precedent that
the representations and warranties made by the Purchaser in this Agreement
shall, unless waived by the Issuer, be true and correct as of the date hereof
and at the Closing Date, with the same force and effect as if they had been made
on and as of the Closing Date.
8. TRANSFER OF SHARES.
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(a) SECURITIES ACT LEGEND. Each certificate evidencing the Shares
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shall (unless otherwise permitted by this Agreement) be stamped or imprinted
with a legend substantially as follows:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of
any state; and may not be sold, assigned, transferred, pledged or
otherwise disposed of except in compliance with, or pursuant to an
exemption from, the requirements of such Act or such laws."
(b) SECURITIES ACT COMPLIANCE. Each holder (a "Holder") of a
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certificate evidencing Shares which bears the restrictive legend set forth in
Section 8(a) above (the "Restricted Shares"), and who proposes to Transfer (as
defined in Section 3(a) of this Agreement) any Restricted Shares, shall give
written notice to the Issuer of such Holder's intention to effect such Transfer.
Each such notice shall describe the manner and circumstances of the proposed
sale or other disposition in sufficient detail and may be accompanied by an
opinion of legal counsel to the Holder. Promptly upon receipt of such notice,
the Issuer shall present a copy thereof (together with any accompanying opinion
of legal counsel to the Holder) to its legal counsel, and the following
provisions shall apply:
(i) If, in the opinion of legal counsel to such Holder,
satisfactory in form and substance to the Issuer and its legal counsel, or
if such notice was not accompanied by an opinion of legal counsel to the
Holder, then, if, in the opinion of legal counsel to the Issuer, the
proposed sale or other disposition may be effected without registering the
Restricted Shares involved under the Securities Act or under state
securities laws, such Holder shall be entitled to Transfer such Restricted
Shares in accordance with the terms of the notice delivered to the Issuer.
The Issuer will advise the Holder, within three (3) business days after
submission of such notice, whether such Holder is entitled to so Transfer
the Restricted Shares. If the Holder is entitled to so Transfer, he shall
submit the stock certificate or certificates evidencing the Restricted
Shares to be Transferred to the Issuer in proper form for Transfer and
accompanied by appropriate instruments of Transfer. Restricted Shares thus
Transferred (and each of the
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certificates evidencing any untransferred balance of the Shares not so
transferred) shall bear the restrictive legend set forth in Section 8(a),
unless, in the opinion of both such legal counsel (or legal counsel to the
Issuer if the Holder did nor present an opinion of its legal counsel), such
legend is not required by the applicable provisions of the Securities Act
or state securities laws; and
(ii) If in the reasonable opinion of either of such legal counsel (or
legal counsel to the Issuer if the Holder did not present an opinion of its
legal counsel) the proposed Transfer cannot be effected without registering
the Shares involved under the Securities Act or state securities laws, such
Holder shall not offer to Transfer or Transfer such stricted Shares unless
and until such Restricted Shares have been registered under the Securities
Act or state securities laws for such purpose or an exemption from such
registration becomes available pursuant to Section 8(b)(i) above.
9. FEES AND EXPENSES. The Purchaser and the Issuer agrees to pay its own
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expenses incident to the performance of its obligations hereunder, including,
but not limited to, the fees, expenses and disbursements of such party's
counsel.
10. INDEMNIFICATION.
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(a) The Issuer agrees to indemnify the Purchaser and its officers,
directors, employees, agents and affiliates in respect of, and hold each of them
harmless from and against, any and all damages, fines, fees, penalties,
deficiencies, losses and expenses (including without limitation interest, court
costs, fees of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or assessment)
("Losses") suffered, incurred or sustained by any of them or to which any of
them becomes subject, resulting from, arising out of or relating to any
misrepresentation, breach of warranty or nonfulfillment of or failure to perform
any covenant or agreement on the part of Issuer contained in this Agreement, as
such expenses are incurred, unless such Loss results primarily from such
Purchaser's gross negligence, recklessness or bad faith in performing the
obligations which are the subject of this Agreement.
(b) The Purchaser agrees to indemnify the Issuer and its officers,
directors, employees, agents and affiliates in respect of, and hold each of them
harmless from and against, any and all Losses suffered, incurred or sustained by
any of them or to which any of them becomes subject, resulting from, arising out
of or relating to any misrepresentation, breach of warranty or nonfulfillment of
or failure to perform any covenant or agreement on the part of such Purchaser
contained in this Agreement, as such expenses are incurred, unless such Loss
results primarily from the Issuer's gross negligence, recklessness or bad faith
in performing the obligations which are the subject of this Agreement.
11. METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for
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indemnification by any Indemnified Party (as defined below) under Section 10
will be asserted and resolved as follows:
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(a) In the event any claim or demand in respect of which any person
claiming indemnification under any provision of Section 10 (an "Indemnified
Party") might seek indemnity under Section 10 is asserted against or sought to
be collected from such Indemnified Party by a person other than the Issuer, the
Purchaser or any affiliate of the Issuer or the Purchaser (a "Third Party
Claim"), the Indemnified Party shall deliver a written notification, enclosing a
copy of all papers served, if any, and specifying the nature of and basis for
such Third Party Claim and for the Indemnified Party's claim for indemnification
that is being asserted under any provision of Section 10 against any person (the
"Indemnified Party"), together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third
Party Claim (a "Claim Notice") with reasonable promptness to the Indemnifying
Party. If the Indemnified Party fails to provide the Claim Notice with
reasonable promptness after the Indemnified Party receives notice of such Third
Party Claim, the Indemnifying Party will not be obligated to indemnify the
Indemnified Party with respect to such Third Party Claim to the extent that the
Indemnifying Party's ability to defend has been substantially prejudiced by such
failure of the Indemnified Party. The Indemnifying Party will notify the
Indemnified Party as soon as practicable within the period ending thirty (30)
calendar days following receipt by an Indemnifying Party of either a Claim
Notice or an Indemnity Notice (as defined below) (the "Dispute Period") whether
the Indemnifying Party disputes its liability to the Indemnified Party under
Section 10 and whether the Indemnifying Party desires, at its sole cost and
expense, to defend the Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party
within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this
Section 11(a), then the Indemnifying Party will have the right to defend,
with counsel reasonably satisfactory to the Indemnifying Party, at the sole
cost and expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings will be vigorously and
diligently prosecuted by the Indemnifying Party to a final conclusion or
will be settled at the discretion of the Indemnifying Party (but only with
the consent of the Indemnified Party in the case of any settlement that
provides for any relief other than the payment of monetary damages or that
provides for the payment of monetary damage, as to which the Indemnified
Party will not be indemnified in full pursuant to Section 10). The
Indemnifying Party will have full control of such defense and proceedings,
including any compromise or settlement thereof; provided, however, that the
Indemnified Party may at the sole cost and expense of the Indemnified
Party, at any time prior to the Indemnifying Party's delivery of the notice
referred to in the first sentence of this clause (i), file any motion,
answer or other pleadings or take any other action that the Indemnified
Party reasonably believes to be necessary or appropriate to protect its
interests; and provided further, that if requested by the Indemnifying
Party, the Indemnified Party will, at the sole cost and expense of the
Indemnifying Party, provide reasonable cooperation to the Indemnifying
Party in contesting any Third Party Claim that the Indemnifying Party
elects to contest. The Indemnified Party my participate in, but not
control, any defense or settlement of any Third Party Claim controlled by
the Indemnifying Party pursuant to this clause (i) and except as provided
in the preceding sentence, the Indemnified Party will bear its own costs
and expenses with respect to such participation. Notwithstanding the
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foregoing, the Indemnified Party may take over the control of the defense
or settlement of a Third Party Claim at any time if it irrevocably waives
its right to indemnity under Section 10 with respect to such Third Partly
Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified
Party within the Dispute Period that the Indemnifying Party desires to
defend the Third Party Claim pursuant to Section 11(a), or if the
Indemnifying Party gives such notice but fails to prosecute vigorously and
diligently or settle the Third Party Claim, or if the Indemnifying Party
fails to give any notice whatsoever within the Dispute Period, then the
Indemnified Party will have the right to defend, at the sole cost and
expense of the Indemnifying Party, the Third Party Claim by all appropriate
proceedings, which proceedings will be prosecuted by the Indemnified Party
in a reasonable manner and in good faith or will be settled at the
discretion of the Indemnified Party (with the consent of the Indemnifying
Party, which consent will not be unreasonably withheld). The Indemnified
Party will have full control of such defense and proceedings, including any
compromise or settlement thereof; provided, however, that if requested by
the Indemnified Party, the Indemnifying Party will, at the sole cost and
expense of the Indemnifying Party, provide reasonable cooperation to the
Indemnified Party and its counsel in contesting any Third Party Claim which
the Indemnified Party is contesting. Notwithstanding the foregoing
provisions of this clause (ii), if the Indemnifying Party has notified the
Indemnified Party within the Dispute Period that the Indemnifying Party
disputes its liability hereunder to the Indemnified Party with respect to
such Third Party Claim and if such dispute is resolved in favor of the
Indemnifying Party in the manner provided in clause (iii) below, the
Indemnifying Party will not be required to bear the costs and expenses of
the Indemnified Party's defense pursuant to this clause (ii) or of the
Indemnifying Party's participation therein at the Indemnified Party's
request, and the Indemnified Party will reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the Indemnifying
Party in connection with such litigation. The Indemnifying Party may
participate in, but not control, any defense or settlement controlled by
the Indemnified Party pursuant to this clause (ii), and the Indemnifying
Party will bear its own costs and expenses with respect to such
participation.
(iii) If the Indemnifying Party notifies the Indemnified Party that it
does not dispute its liability to the Indemnified Party with respect to the
Third Party Claim under Section 10 or fails to notify the Indemnified Party
within the Dispute Period whether the Indemnifying Party disputes its
liability to the Indemnified Party with respect to such Third Party Claim,
the Loss in the amount specified in the Claim Notice will be conclusively
deemed a liability of the Indemnifying Party under Section 10 and the
Indemnifying Party shall pay the amount of such Loss to the Indemnified
Party on demand. If the Indemnifying Party has timely disputed its
liability with respect to such claim, the Indemnifying Party and the
Indemnified Party will proceed in good faith to negotiate a resolution of
such dispute, and if not resolved through negotiations within ten (10)
business days (the "Resolution Period"), such dispute shall be resolved by
arbitration in accordance with paragraph (c) of this Section 11.
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(b) In the event any Indemnified Party should have a claim under
Section 10 against any Indemnifying Party that does not involve a Third Party
Claim, the Indemnified Party shall deliver a written notification of a claim for
indemnity under Section 10 specifying the nature of and basis for such claim,
together with the amount or, if not reasonably ascertainable, the estimated
amount, determined in good faith, of such claim (an "Indemnity Notice") with
reasonable promptness to the Indemnifying Party. The failure by any Indemnified
Party to give the Indemnity Notice shall not impair such party's rights
hereunder except to the extent that an Indemnifying Party demonstrates that it
has been substantially prejudiced thereby. If the Indemnifying Party notifies
the Indemnified Party that it does not dispute the claim described in such
Indemnity Notice or fails to notify the Indemnified Party within the Dispute
Period whether the Indemnifying Party disputes the claim described in such
Indemnity Notice, the Loss in the amount specified in the Indemnity Notice will
be conclusively deemed a liability of the Indemnifying Party under Section 10
and the Indemnifying Party shall pay the amount of such Loss to the Indemnified
Party on demand. If the Indemnifying Party has timely disputed its liability
with respect to such claim, the Indemnifying Party and the Indemnified Party
will proceed in good faith to negotiate a resolution of such dispute, and if not
resolved through negotiations within the Resolution Period, such dispute shall
be resolved by arbitration in accordance with paragraph (c) of this Section 11.
(c) Any dispute submitted to arbitration pursuant to this Section 11
shall be finally and conclusively determined by the decision of a board of
arbitration consisting of three (3) members (hereinafter sometimes called the
"Board of Arbitrations") selected as hereinafter provided. Each of the
Indemnified Party and the Indemnifying Party shall select one (1) member and the
third member shall be selected by mutual agreement of the other members, or if
the other members fail to reach agreement on a third member within twenty (20)
days after their selection, such third member shall thereafter be selected by
the American Arbitration Association upon application made to it for such
purpose by the Indemnified Party. The Board of Arbitration shall meet in New
York, New York or such other place as a majority of the members of the Board of
Arbitration determines more appropriate, and shall reach and render a decision
in writing (concurred in by a majority of the members of the Board of
Arbitration) with respect to the amount, if any, which the Indemnifying Party is
required to pay to the Indemnified Party in respect of a claim filed by the
Indemnified Party. In connection with rendering its decisions, the Board of
Arbitration shall adopt and follow such rules and procedures as a majority of
the members of the Board of Arbitration deems necessary or appropriate. To the
extent practical, decisions of the Board of Arbitration shall be rendered no
more than thirty (30) calendar days following commencement of proceedings with
respect thereto. The Board of Arbitration shall cause its written decision to be
delivered to the Indemnified Parry and the Indemnifying Party. Any decision made
by the Board of Arbitration (either prior to or after the expiration of such
thirty (30) calendar day period) shall be final, binding and conclusive on the
Indemnified Party and the Indemnifying Party and entitled to be enforced to the
fullest extent permitted by law and entered in any court of competent
jurisdiction. Each party to any arbitration shall bear its own expense in
relation thereto, including but not limited to such party's attorneys' fees, if
any, and the expenses and fees of the Board of Arbitration shall be divided
between the Indemnifying Party and the Indemnified Party in the same proportion
as the portion of the related claim determined by the
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Board of Arbitration to be payable to the Indemnified Party bears to the portion
of such claim determined not to be so payable.
12. SURVIVAL OF THE REPRESENTATIONS, WARRANTIES, ETC. The respective
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agreements, representations, warranties, indemnities and other statements made
by or on behalf of the Issuer and the Purchaser, respectively, pursuant to this
Agreement, shall remain in full force and effect for a period of one year,
regardless of any investigation made by or on behalf of the other party to This
Agreement or any officer, director or employee of, or person controlling or
under common control with, such party and will survive delivery of any payment
for the Initial Shares and the Preferred Shares.
13. NOTICES. All communications hereunder shall be in writing and shall be
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sufficient in all respects if delivered, sent by registered mail, or by telecopy
and confirmed to the Purchaser or Issuer at the respective address set forth
below:
(i) if to the Issuer:
OXIS International, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxxx, Esq.
Xxxxxxx Tufts Cole & Black LLP
00 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
(ii) if to the Purchaser:
_____________________
_____________________
_____________________
_____________________
14. MISCELLANEOUS.
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(a) This Agreement may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same agreement.
This Agreement may not be assigned by either party.
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(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto, their respective successors and, with respect to Section 10
and 11 hereof, the officers, directors and controlling persons thereof and each
person under common control therewith, and no other person shall have any right
or obligation hereunder.
(c) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without giving effect to conflicts of
laws principles).
(d) The headings of the sections of this document have been inserted
for convenience of reference only and shall not be deemed to be a part of this
Agreement.
(e) The provisions of this Agreement are severable, and if any clause
or provision shall be held invalid, illegal or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect in
that jurisdiction only such clause or provision, or part thereof, and shall not
in any manner affect such clause or provision in any other jurisdiction or any
other clause or provision of this Agreement in any jurisdiction.
(f) This Agreement, including the schedules and exhibits hereto,
constitute the sole and entire agreement of the parties with respect to the
subject matter hereof. All schedules and exhibits are hereby incorporated herein
by reference.
15. ESCROW AGENT. The Escrow Agent shall not be liable for any action
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taken or omitted by it in good faith and its liability hereunder shall be
limited to liability for gross negligence, willful misconduct or bad faith on
its part. The Issuer and the Purchaser agree to save harmless, indemnify and
defend the Escrow agent for, from and against any loss, damage, liability,
judgment, cost and expense whatsoever, by reason of, or on account of, any
misrepresentation made to it or its status or activities as Escrow Agent under
this Agreement except for any loss, damage, liability, judgment, cost or expense
resulting from gross negligence, willful misconduct or bad faith on the part of
the Escrow Agent.
It is understood and further agreed that the Escrow Agent shall:
(a) be under no duty to enforce payment of any subscription that is
to be paid to and held by it hereunder;
(b) promptly notify the Purchaser and the Issuer of any discrepancy
between the amounts set forth on any statement delivered by a Purchaser and/or
the Issuer and the sum or sums delivered to it therewith;
(c) be under no duty to accept funds, checks, drafts or instruments
for the payment of money from anyone other than the Issuer or the Purchaser, or
to give any receipt therefor except to the Issuer or the Purchaser, with a copy
in each case to the Issuer;
(d) be protected in acting upon any notice, request, certificate,
approval, consent or other paper reasonably believed by it to be genuine and to
be signed by the proper party or parties;
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