EXHIBIT 99.2
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CERTIFICATE OF DESIGNATIONS, PREFERENCES, AND
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RIGHTS OF SERIES C PREFERRED STOCK
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OXIS International, Inc., a Delaware corporation (the "Corporation"),
certifies that pursuant to the authority contained in Article FOURTH of its
Restated Certificate of Incorporation, and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of Delaware, its Board
of Directors has adopted the following resolution creating a series of Preferred
Stock designated as Series C Preferred Stock.
"RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Corporation by the Restated Certificate of Incorporation (the
"Certificate of Incorporation"), the Board of Directors does hereby provide for
the issue of, and does hereby issue, a series of Preferred Stock, par value
$0.01 per share, of the Corporation, to be designated "Series C Preferred
Stock," initially consisting of Three Million Seventy-Six Thousand Nine Hundred
and Twenty-Three (3,076,923) shares and to the extent that the designations,
powers, preferences and relative and other special rights and the
qualifications, limitations and restrictions of the Series C Preferred Stock are
not stated and expressed in the Certificate of Incorporation, does hereby fix
and herein state and express such designations, powers, preferences and relative
and other special rights and the qualifications, limitations and restrictions
thereof, as follows (all terms used herein which are defined in the Certificate
of Incorporation shall be deemed to have the meanings provided therein):
A. Designation and Amount. The shares of such series shall be designated
as "Series C Preferred Stock," par value $0.01 per share, and the number of
shares constituting such series shall be 3,076,923.
B. Rights, Preferences and Privileges. The rights, preferences,
privileges and restrictions granted to or imposed upon the Series C Preferred
Stock are as follows:
1. Series C Dividends.
(a) The holders of outstanding Series C Preferred Stock shall be entitled
to receive in any fiscal year, when, as and if declared by the Board of
Directors, after the payment of dividends on Series B Preferred Stock, out of
any assets at the time legally available therefor, dividends in amounts
determined by the Corporation's Board of Directors before any other dividend or
distribution (other than pursuant to Section 4, or distributions with respect to
the Series B Preferred Stock) is paid on Common Stock. Such dividend or
distribution may be payable annually or otherwise as the Board of Directors may
from time to time determine. The right to such dividends on shares of Series C
Preferred Stock shall not be cumulative and no right shall accrue to holders of
shares of Series C Preferred Stock by reason of the fact that dividends
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on said shares are not declared in any prior year, nor shall any undeclared or
unpaid dividend bear or accrue interest.
2. Series C Voting Rights. Each holder of shares of Series C Preferred
Stock shall be entitled to the number of votes equal to the number of shares of
Common Stock into which such holder's shares of Series C Preferred Stock could
be converted on the record date for the vote or consent of stockholders
multiplied by the Voting Power Fraction and, except as otherwise provided
herein, shall have voting rights and powers equal to the voting rights and
powers of the Common Stock. The Voting Power Fraction shall equal $1.30 divided
by the average closing bid price of the Company's Common Stock during the 15
consecutive trading days immediately prior to the date the Series C Preferred
was purchased (the "Average Closing Price"); but in no event shall be greater
than one (1). The holder of each share of Series C Preferred Stock shall be
entitled to notice of any stockholders' meeting in accordance with the Bylaws of
the Corporation and shall vote with holders of the Common Stock upon the
election of directors and upon any other matter submitted to a vote of
stockholders, except those matters required by law to be submitted to a class or
series vote. Fractional votes by the holders of Series C Preferred Stock shall
not, however, be permitted and any fractional voting rights resulting from the
above formula (after aggregating all shares into which shares of Series C
Preferred Stock held by each holder could be converted) shall be rounded to the
nearest whole number.
3. Series C Conversion. The holders of Series C Preferred Stock shall
have conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. Each share of Series C Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share at the office of the Corporation or any transfer agent
for such stock, into such number of fully paid and nonassessable shares of
Common Stock as is determined by dividing $1.30 by the Series C Conversion
Price, determined as hereinafter provided, in effect on the date the certificate
is surrendered for conversion. The Series C Conversion Price shall initially be
$1.30. Such initial Series C Conversion Price shall be adjusted as hereinafter
provided.
(b) Mechanics of Conversion.
(i) Before any holder of Series C Preferred Stock shall be
entitled to convert the same into shares of Common Stock, he shall surrender the
certificate or certificates therefor, duly endorsed, at the office of the
Corporation or of any transfer agent for such stock, and shall give written
notice to the Corporation at such office that he elects to convert the same and
shall state therein the name or names in which he wishes the certificate or
certificates for shares of Common Stock to be issued. The Corporation shall, as
soon as practicable thereafter, issue and deliver at such office to such holder
of Series C Preferred Stock, a certificate or certificates for the number of
shares of Common Stock to which he shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of surrender of the shares of Series C Preferred Stock to
be converted, and the person or persons entitled to receive the shares of Common
Stock issuable upon such conversion shall
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be treated for all purposes as the record holder or holders of such shares of
Common Stock on such date.
(ii) If a voluntary conversion is made in connection with an
underwritten offering of securities pursuant to a registration statement filed
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), the
conversion may, at the option of any holder tendering shares of Series C
Preferred Stock for conversion, be conditioned upon the closing with the
underwriters of the sale of securities pursuant to such offering, in which event
the person(s) entitled to receive the Common Stock upon conversion of the Series
C Preferred Stock shall not be deemed to have converted such Series C Preferred
Stock until immediately prior to the closing of such sale of securities.
(c) Adjustments for Stock Dividends, Subdivisions, or Split-ups of Common
Stock. If the number of shares of Common Stock outstanding at any time after the
filing of this Certificate of Designation is increased by a stock dividend
payable in shares of Common Stock or by a subdivision or split-up of shares of
Common Stock, then, effective at the close of business upon the record date
fixed for the determination of holders of Common Stock entitled to receive such
stock dividend, subdivision or split-up, the Series C Conversion Price shall be
appropriately decreased so that the number of shares of Common Stock issuable on
conversion of each share of Series C Preferred Stock shall be increased in
proportion to such increase of outstanding shares of Common Stock.
(d) Adjustments for Combinations of Common Stock. If the number of shares
of Common Stock outstanding at any time after the filing of this Certificate of
Designation is decreased by a combination of the outstanding shares of Common
Stock, then, effective at the close of business upon the record date of such
combination, the Series C Conversion Price shall be appropriately increased so
that the number of shares of Common Stock issuable on conversion of each share
of Series C Preferred Stock shall be decreased in proportion to such decrease in
outstanding shares of Common Stock.
(e) Adjustments for Other Distributions. In the event the Corporation at
any time or from time to time makes, or fixes a record date for the
determination of holders of Common Stock entitled to receive any distribution
payable in securities of the Corporation other than shares of Common Stock, then
and in each such event provision shall be made so that the holders of Series C
Preferred Stock shall receive upon conversion thereof, in addition to the number
of shares of Common Stock receivable thereupon, the amount of securities of the
Corporation which they would have received had their Series C Preferred Stock
been converted into Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and including the
date of conversion, retained such securities receivable by them as aforesaid
during such period, subject to all other adjustments called for during such
period under this Section 3(e) with respect to the rights of the holders of the
Series C Preferred Stock.
(f) Adjustments for Reorganizations, Reclassifications, etc. If the
Common Stock issuable upon conversion of the Series C Preferred Stock shall be
changed into the same or
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a different number of shares of any other class or classes of stock or other
securities or property, whether by reclassification, a merger or consolidation
of this Corporation with or into any other corporation or corporations, or a
sale of all or substantially all of the assets of this Corporation, or
otherwise, the Series C Conversion Price then in effect shall, concurrently with
the effectiveness of such reorganization or reclassification, be proportionately
adjusted such that the Series C Preferred Stock shall be convertible into, in
lieu of the number of shares of Common Stock which the holders would otherwise
have been entitled to receive, a number of shares of such other class or classes
of stock or securities or other property equivalent to the number of shares of
Common Stock that would have been subject to receipt by the holders upon
conversion of the Series C Preferred Stock immediately before such event; and,
in any such case, appropriate adjustment (as determined by the Board) shall be
made in the application of the provisions herein set forth with respect to the
rights and interests thereafter of the holders of the Series C Preferred Stock,
to the end that the provisions set forth herein (including provisions with
respect to changes in and other adjustments of the Series C Conversion Price)
shall thereafter be applicable, as nearly as may be reasonable, in relation to
any shares of stock or other property thereafter deliverable upon the conversion
of the Series C Preferred Stock.
(g) Certain Other Adjustment. If at any time after six (6) months
following the consummation ("Closing") of the sale of Series C Preferred Stock
purchased pursuant to those certain Subscription and Purchase Agreements between
the Corporation and each holder of such Series C Preferred Stock, any such
holder converts the Series C Preferred Stock, then the Series C Conversion Price
applicable to such holder's shares shall be the lesser of (i) $1.30, or (ii) the
greater of (x) .90 or (y) 80% of the average closing bid price of the Common
Stock for the fifteen (15) consecutive trading days ending on the date
immediately preceding the date notice of conversion is given. The Series C
Conversion Price may only adjust once for each holder.
(h) Company's Right to Automatically Convert. If at any time after eight
(8) months following the Closing the average closing bid price of the
Corporation's Common Stock for 15 consecutive trading days as quoted on the
Nasdaq National Market is equal to or greater than $2.60, the Corporation shall
thereafter have the right to automatically convert the Series C Preferred Stock
into such number of shares of Common Stock as is determined by dividing $1.30 by
the then applicable Series C Conversion Price by notice given to such holders of
Series C Preferred Stock.
(i) Certificates as to Adjustments. Upon the occurrence of each
adjustment of the Series C Conversion Price pursuant to this Section 3, the
Corporation at its expense shall promptly compute such adjustment in accordance
with the terms hereof and prepare and furnish to each applicable holder of
Series C Preferred Stock a certificate executed by the Corporation's President
or Chief Financial Officer setting forth such computation of adjustment.
(j) Notices of Record Date. In the event that the Corporation shall
propose at any time: (a) to declare any special dividend or distribution upon
its Common Stock, whether in cash, property, stock or other securities, whether
or not out of earnings or earned surplus; (b) to offer for subscription pro rata
to the holders of any class or series of its stock any additional shares of
stock of any class or series or other rights; (c) to effect any reclassification
or
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recapitalization of its Common Stock outstanding involving a change in the
Common Stock; or (d) to merge or consolidate with or into any other corporation
(other than a mere reincorporation transaction), or sell, lease or convey all or
substantially all of its assets, or to liquidate, dissolve or wind up; then, in
connection with each such event, the Corporation shall send to the holders of
Series C Preferred Stock:
(i) at least twenty (20) days' prior written notice of the date on
which a record shall be taken for such dividend, distribution or subscription
rights (and specifying the date on which the holders of Common Stock shall be
entitled thereto) or for determining rights to vote, if any, in respect of the
matters referred to in (c) and (d) above; and
(ii) in the case of the matters referred to in (c) and (d) above, at
least twenty (20) days' prior written notice of the date when the same shall
take place (and specifying the date on which the holders of Common Stock shall
be entitled to exchange their Common Stock for securities or other property
deliverable upon the occurrence of such event).
(k) Reservation of Stock Issuable Upon Conversion. The Corporation shall
at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of
the shares of the Series C Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series C Preferred Stock; and if at any time the
number of authorized but unissued shares of Common Stock shall not be sufficient
to effect the conversion of all then outstanding shares of the Series C
Preferred Stock, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose, including, without limitation, engaging in its best efforts to obtain
the requisite stockholder approval of any necessary amendment to the Certificate
of Incorporation.
(l) Fractional Shares. No fractional share shall be issued upon the
conversion of any share or shares of Series C Preferred Stock. All shares of
Common Stock (including fractions thereof) issuable upon conversion of more than
one share of Series C Preferred Stock by a holder thereof shall be aggregated
for purposes of determining whether the conversion would result in the issuance
of any fractional share. If, after the aforementioned aggregation, the
conversion would result in the issuance of a fraction of a share of Common
Stock, the Corporation shall, in lieu of issuing any fractional share, pay the
holder otherwise entitled to such fraction a sum in cash equal to the fair
market value of such fraction on the date of conversion (as determined in good
faith by the board of directors of the Corporation).
(m) Notices. Any notice required by the provisions of this Section 3 to
be given to the holders of shares of Series C Preferred Stock shall be deemed
given on the date of delivery if delivered by hand delivery or by facsimile, or,
if deposited in the United States mail (registered or certified), postage
prepaid, and addressed to each holder of record at his or its address appearing
on the books of the Corporation.
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4. Series C Liquidation Preferences.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation whether voluntary or involuntary, the holders of the Series C
Preferred Stock shall participate on an equal basis with the holders of the
Common Stock (as if the Series C Preferred Stock had converted into Common
Stock) in any distribution of any of the assets or surplus funds of the
Corporation .
5. Series C Protective Provisions. In addition to any other rights provided
by law, so long as any share of Series C Preferred Stock shall be outstanding,
the Corporation shall not, without first obtaining the affirmative vote or
written consent of the holders of the majority of the outstanding shares of
Series C Preferred Stock voting separately as a separate class, take any action
which alters or changes any of the rights, privileges or preferences of the
Series C Preferred Stock, including without limitation increasing or decreasing
the aggregate number of authorized shares of such series other than an increase
incident to a stock split.
RESOLVED FURTHER, that the President or any Vice President and the
Secretary or any Assistant Secretary of this Corporation be, and they hereby
are, authorized and directed to prepare and file a Certificate of Designation in
accordance with the foregoing resolution and the provisions of Delaware law and
to take such actions as they may deem necessary or appropriate to carry out the
intent of the foregoing resolutions."
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Chairman of the Board and attested to by
its Secretary this ____ day of January, 1996.
OXIS INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
Chairman of the Board
ATTEST:
/s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
Secretary
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