EXHIBIT 2
Form of Share Exchange Agreement
Axonyx Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, M.D., CEO
Re: Share Exchange
Dear Xx. Xxxxxxx:
The undersigned (the "Seller") is the holder of that number of shares of
the common stock, par value $0.001 per share, of Oxis International, Inc., a
Delaware corporation ("Oxis"), set forth on the signature page of this letter
(the "Shares"). This letter sets forth the terms of our agreement to exchange
the Shares for shares of common stock of Axonyx Inc. ("Axonyx") in accordance
with the terms below.
1. Share Exchange. Subject to the terms and subject to conditions of this
letter agreement, the undersigned hereby agrees to exchange all of the Shares
for shares of common stock of Axonyx ("Axonyx Common Stock"), at an exchange
ratio of 0.1157187 (the "Exchange Ratio"); that is, each share of Oxis common
stock will be exchanged for 0.1157187 share of Axonyx Common Stock. The Exchange
Ratio is based upon the average reported closing prices for the common stock of
Oxis and Axonyx for the ten-day trading period commencing December 26, 2003 and
ending January 9, 2003. Fractional shares of Axonyx Common Stock will not be
issued; any fractional share of Axonyx Common Stock issuable upon the exchange
for shares of Oxis Common Stock will be rounded up to the next nearest whole
share of Axonyx Common Stock.
For example, if the undersigned holds 100,000 shares of Oxis Common Stock,
the number of Exchange Shares to be issued would be 11,571.87 shares of Axonyx
Common Stock, which after rounding up for the fractional share interest, would
equal 11,572 shares.
2. Deliveries. The Seller has executed this letter agreement and has
delivered a copy by fax to Axonyx's counsel, Xxxxxxxxxx Xxxxxxxxx & Xxxxxx LLP
(Fax no. 000-000-0000, Attention: Xxxx Xxxxxxxxx, Esq.). Immediately, and not
more than two (2) business days following our receipt of a signed signature page
of this letter agreement from Axonyx, the undersigned shall deliver to such
counsel by Federal Express or other overnight courier at 00 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, an original executed copy of the signature page
of this letter agreement, together with (a) an originally executed stock power,
with signature guarantee, in the form attached hereto as Exhibit A (the "Stock
Power"), relating to the Shares and (b) either the original share certificate
evidencing the Shares or an originally executed lost stock certificate affidavit
in the form attached hereto as Exhibit B. The signature guaranty shall be
executed by a bank or other financial institution, including a brokerage firm.
As soon as practicable, and in any event not more than ten (10) business days
following delivery by Axonyx of a signed signature page to this letter agreement
to the undersigned, Axonyx shall cause to be delivered a share certificate
reflecting the Exchange Shares. If the undersigned does not receive a signed
copy of this letter agreement within ten (10) business days of delivering to
Axonyx a signed copy of this letter, the obligations of the Seller hereunder
shall terminate.
3. Registration Rights. The Seller acknowledges that the Exchange Shares
to be issued by Axonyx will be "restricted securities" and will not be
registered under the federal securities laws, and therefore will bear a
restrictive legend to that effect. Within 10 days following the declaration of
effectiveness of a registration statement on Form S-3 relating to the resale of
shares of Axonyx Common Stock purchased by the investors in a $50 million dollar
investment round, as described in Axonyx's Form 8-
K filed on January 12, 2004, Axonyx shall file a registration statement on Form
S-3 relating to the resale of the Exchange Shares (the "Resale S-3") and shall
use its best efforts thereafter to cause the Resale S-3 to be declared effective
by the Securities and Exchange Commission. Axonyx shall bear the costs and
expenses relating to the Resale S-3 customarily borne by the issuer filing a
resale registration statement for the holders of its securities.
4. Representations and Warranties of the Seller. The undersigned hereby
represents and warrants to Axonyx as follows:
(a) Organization, Authority and Qualification. [If the Seller is
an entity:] The Seller is a corporation, limited liability company, limited
partnership, trust or other entity duly organized, validly existing and in good
standing under the laws of its incorporation or formation and has the requisite
power and authority to execute and deliver this letter agreement and any of the
Exhibits contemplated hereby, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this letter agreement by the Seller and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of the Seller.
(b) Ownership of the Shares. The Seller is the beneficial and
record owner of and has good, valid and marketable title to all of the Shares,
free and clear of all liens, mortgages, charges or other encumbrances and any
preemptive or subscription rights.
(c) No Consents. Except as may be required under the Securities
Act of 1933, and subject to Axonyx's counsel providing any opinions in
connection therewity, the Seller is not required to obtain any order, consent,
approval or authorization of any person or entity in connection with the
exchange of the Shares for the Exchange Shares.
(d) Investment Intent. The Exchange Shares which are being
acquired by the Seller in exchange for the Shares are being acquired for the
Seller's own account, not as nominee or agent, and not with a view towards the
resale or distribution of all or any part of the Exchange Shares. The Seller has
no intention of selling, transferring or distributing as a dividend or otherwise
any part of the Exchange Shares and has not entered into any agreement or
understanding with any party to do so.
(e) Seller's Actions. The Seller has not acted and will not act in
concert with any other stockholder of Oxis, either in the negotiation and
execution of this letter agreement or in connection with the consummation of the
transactions contemplated hereunder. The Seller is not a member of any "group",
as defined under the federal securities laws, with respect to the Seller's
ownership or sale of the Shares, the voting thereof, or otherwise in connection
with Oxis, and the Seller has no agreement, written or oral, with any
stockholder of Oxis or any third party relating to any matter concerning the
affairs of Oxis. The Seller acknowledges that the Seller has separately
negotiated with Axonyx the terms and conditions of this letter agreement and
that the delivery of a signed copy hereof to Axonyx does not mean that Axonyx
has made any offer to the Seller to acquire the Shares or that the Seller is
making an offer to Axonyx to sell the Shares to it. The Seller is not acquiring
the Exchange Shares as a result of any general solicitation or general
advertisement by Axonyx, or any offer or other limited solicitation by Axonyx to
stockholders of Oxis.
(f) Seller' Status. The Seller is an "accredited investor" as
defined in Rule 501(a) under the Securities Act of 1933, as amended (the
"Securities Act").
(g) Experience of the Seller. The Seller, either alone or together
with its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and
risks of the prospective investment in the Exchange Shares, and has so evaluated
the merits and risks of such investment. The Seller is able to bear the economic
risk of an
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investment in the Exchange Shares and, at the present time, is able to afford a
complete loss of such investment.
5. Representations and Warranties of Axonyx. In order to induce the Seller
to enter into this letter agreement, Axonyx hereby represents and warrants to
the Seller as follows:
(a) Organization, Authority and Qualification. Axonyx is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has the requisite power and authority to execute and
deliver this letter agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this letter agreement by Axonyx and the consummation by Axonyx of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Axonyx.
(b) No Consents. Axonyx is not required to obtain any order,
consent, approval or authorization of any person or entity in connection with
the issuance of the Exchange Shares in exchange for the Shares or any of the
other transactions contemplated hereunder.
(c) Issuance of the Exchange Shares. The Exchange Shares, when
issued, will be duly authorized by all necessary corporate action by Axonyx, and
will be duly and validly issued, fully paid and non-assessable shares of common
stock of Axonyx.
(d) Investment Intent. The Shares which are being acquired by
Axonyx in exchange for the Exchange Shares are being acquired for Axonyx's own
account, not as nominee or agent, and not with a view towards the resale or
distribution of all or any part of the Shares. Axonyx has no intention of
selling, transferring or distributing as a dividend or otherwise any part of the
Shares and has not entered into any agreement or understanding with any party to
do so.
(e) SEC Reports. Axonyx has filed all reports required to be filed
by it under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to Section 13(a) or 15(d)
thereof, for the two years preceding the date hereof (or such shorter period as
the Company was required by law to file such material) (the foregoing materials,
including the exhibits thereto, being collectively referred to herein as the
"SEC Reports") on a timely basis or has received a valid extension of such time
of filing and has filed any such SEC Reports prior to the expiration of any such
extension. As of their respective dates, the SEC Reports complied in all
material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder, and none of the SEC Reports, when filed, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
6. Further Assurances. The Seller and Axonyx shall execute and deliver
such further instruments of conveyance, transfer and assignment, cooperate and
assist in providing information for making and completing regulatory filings,
and take such other actions as the Seller or Axonyx, as the case may be, may
reasonably require of the other party to evidence or effectuate the transactions
contemplated hereunder.
7. Amendment. This Agreement may not be amended or otherwise modified,
except by an instrument in writing signed by, or on behalf of, each of the
parties hereto.
8. Governing Law. This letter agreement (including the documents and
instruments referred to herein) shall be governed in all respects, including
validity, interpretation and effect, by the laws of the State of New York, as
applied to agreements entered into and wholly performed within such State.
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9. Counterparts. This letter agreement may be executed in one or more
counterparts which together shall constitute a single agreement. If any
provisions of this Agreement shall be held to be illegal, invalid or
unenforceable under any applicable law, then such contravention or invalidity
shall not invalidate the entire letter agreement. Such provision shall be deemed
to be modified to the extent necessary to render it legal, valid and
enforceable, and if no such modification shall render it legal, valid and
enforceable, then this letter agreement shall be construed as if not containing
the provision held to be invalid, and the rights and obligations of the parties
shall be construed and enforced accordingly.
10. Entire Agreement. This letter agreement supersedes all prior
agreements between the parties hereto with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter.
[REMAINDER OF PAGE INTENTIONALLY OMITTED]
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If this letter agreement accurately sets forth our agreement, please sign
below where indicated.
Dated: January __, 2004
Sincerely,
______________________, SELLER
_______________________________
Name: ______________________
Title: ______________________
Address: ______________________
______________________
______________________
Telephone: ______________________
Fax: ______________________
Email: ______________________
Social Security or Taxpayer
Identification No.:
_______________________________
No. Shares of Oxis Common Stock being exchanged: ___________________________
AGREED:
Date: January 15, 2004
AXONYX INC.
By: /s/ XXXXXX X. XXXXXXX
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
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EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED, the undersigned, __________________________
("Transferor"), does hereby sell, assign and transfer to Axonyx Inc., _______
shares of the common stock of Oxis International, Inc., a Delaware corporation
("Oxis"), standing in the name of Transferor on the books of Oxis and evidenced
by Certificate No. ____, dated ________ __, _____ (the "Shares"). Transferor
hereby irrevocably constitutes and appoints the Secretary of Axonyx Inc. as
Transferor's true and lawful attorney with full power of substitution, to
effectuate the transfer the Shares on the register of transfers and books of
Oxis, and hereby ratifies and confirms all that said attorney or substitute or
substitutes shall lawfully do by virtue hereof.
Dated: As of January __, 2004
TRANSFEROR:
-------------------------------------------
Name:
Title:
SIGNATURE GUARANTEED:
------------------------------------
Name:
Title:
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EXHIBIT B
LOST STOCK AFFIDAVIT AND INDEMNITY AGREEMENT
_______________[, the _________ of ENTITY NAME], being duly sworn, deposes
and says that:
1. __________________ (the "Holder") am the legal and beneficial
owner of _____ shares (the "Shares") of common stock of Oxis International,
Inc., a Delaware corporation (the "Company"), represented by Certificate No. __
for _____ shares (the "Certificate"). [If Holder is an entity, add the
following: I am the duly appointed and current _________ of the Holder.]
2. The Holder is unable to deliver the Certificate to the Company
for cancellation and reissuance to Axonyx Inc., the purchaser of the Shares,
since the Certificate has been lost. The Holder has attempted, unsuccessfully,
to locate the Certificate.
3. No instrument of transfer, assignment or conveyance of the
Shares was at any time executed and delivered to any person; nor were the
Shares, in whole or in part, or any interest therein, otherwise transferred,
assigned or conveyed at any time to any person.
4. The Holder hereby irrevocably disclaims any and all right,
title and interest whatsoever in and to the Certificate, and any proceeds
thereof, and covenants and agrees to at no time assert any claim to any such
right, title or interest against the Company and Axonyx relating to the Shares.
5. The Holder hereby further covenants and agrees, for itself and
its successors and assigns, if applicable, to indemnify and hold the Company and
Axonyx and their respective successors and assigns harmless from any and against
and all demands, claims, actions or causes of action, assessments, losses,
damages, deficiencies, liabilities, costs and expenses (including, without
limitation, interest, penalties and attorneys' fees and disbursements)
whatsoever which the Company or Axonyx and/or any such successors or assigns may
hereafter sustain or incur by reason or in connection with any claim made by any
person in respect of the Certificate.
6. The Holder hereby further covenants and agrees that in the
event the Certificate shall at any time hereafter come into its possession, the
Holder shall forthwith deliver the same to the Company for cancellation.
Dated: January __, 2004
____________________, [HOLDER]
By:_________________
Name:
Title:
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