EXHIBIT 99.5
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is made as of the ____ day
of ________, 1998, by and among OXIS International, Inc., a Delaware corporation
(the "Company"), the investor whose name is set forth on the signature page
hereto (the "Investor"), and Xxxxxxx Xxxxx Xxxx & Black, LLP, a California
limited liability partnership, as Escrow Agent ("Escrow Agent", collectively
with the Company and the Investor, the "Parties").
1. The Investor has agreed to deposit with the Escrow Agent in escrow, the
sum of US$_______________________ (the "Escrowed Funds") as the purchase price
for ____________ shares of the Company's common stock (the "Common Stock") and a
Warrant to purchase an equal number of shares of the Company's common stock (the
"Warrant"), each purchase to be made pursuant to the terms of that certain
Common Stock and Warrant Purchase Agreement of even date herewith, substantially
in the form attached hereto as Exhibit A (the "Subscription Agreement"). The
Parties agree that capitalized terms used but not defined herein will have the
meanings ascribed to them in the Subscription Agreement.
2. The Escrow Agent agrees to maintain the Escrowed Funds in an interest
bearing account and agrees to disburse the Escrowed Funds pursuant to the terms
of this Escrow Agreement. Any disbursement of the Escrowed Funds to the Company
or back to the Investor under the terms hereof will include the interest accrued
on such Escrowed Funds.
3. The Parties note that the Subscription Agreement provides for a first
closing that will take place the date hereof (the "First Closing") and a second
closing (the "Second Closing"). The Second Closing will not occur until after
the Company has amended its Certificate of Incorporation to increase the number
of authorized shares of Common Stock from 50 million to 95 million (the
"Amendment").
4. The Parties agree that, upon notification by the Company's transfer
agent (the "Transfer Agent") to the Escrow Agent that share certificates
relating to the Common Stock to be issued to the Investor in connection with the
First Closing (the "First Closing Common Stock") have been disbursed to the
Investor by the Transfer Agent, the Escrow Agent will disburse to the Company
that portion of the Escrowed Funds which constitutes the Investor's purchase
price for the First Closing Common Stock. In the event that the First Closing
does not occur by May 15, 1998 the Escrow Agent agrees to return the Escrowed
Funds to the Investor.
5. The Parties agree that upon notification by the Transfer Agent that
share certificates relating to the Common Stock to be issued to the Investor in
connection with the Second Closing (the "Second Closing Common Stock") have been
disbursed to the Investor by the Transfer Agent, the Escrow Agent will disburse
to the Company the remaining amount of the Escrowed Funds (the "Remaining Escrow
Balance"). In the event that the Company's annual meeting of Stockholders is not
held by July 15, 1998 the Escrow Agent agrees to return Remaining Escrow Balance
to the Investor. The Escrow Agent may also deliver the Remaining Escrow Balance
pursuant to joint instructions received from the Company and the Investor.
6. Upon the disbursement of the Remaining Escrow Balance, the Escrow Agent
will have no further obligations under this Escrow Agreement.
7. The Investor and the Company agree jointly and severally to hold the
Escrow Agent harmless and to indemnify the Escrow Agent against any loss,
liability, expenses (including attorney's fees and expenses), claim, or demand
arising out of or in connection with the performance of its obligations as
Escrow Agent. The foregoing indemnification shall survive the resignation of the
Escrow Agent and the termination of this Escrow Agreement. The Investor and the
Company acknowledge that the Escrow Agent also serves as legal counsel to the
Company. The parties waive any conflict of interest that may be created due to
the facts set forth in the immediately preceding sentence.
8. The Escrow Agent's duties are only such as are specifically provided
herein, and the Escrow Agent shall incur no liability whatsoever to the Investor
or the Company and shall have no responsibility hereunder other than to follow
faithfully the instructions herein contained. The Escrow Agent may consult with
counsel and shall be fully protected in any action taken in good faith in
accordance with such advice. The Escrow Agent shall be fully protected in acting
in accordance with any written instructions given to it hereunder and believed
by it to have been executed by the proper parties. The Escrow Agent shall not be
liable for interest on the Escrowed Funds in any circumstances.
(a) It is understood and agreed that should any dispute arise with
respect to the payment and/or ownership or right of possession of the Escrowed
Funds, the Escrow Agent is authorized and directed to retain in its possession,
without liability to anyone, all or any part of said Escrowed Funds until such
dispute shall have been settled either by mutual agreement by the parties
concerned or by the final order, decree or judgment of a court or other tribunal
of competent jurisdiction in the United States of America and time for appeal
has expired and no appeal has been perfected, but the Escrow Agent shall be
under no duty whatsoever to institute or defend any such proceedings.
(b) The Escrow Agent may resign at any time by giving written notice
thereof to the other parties hereto, but such resignation shall not become
effective until a successor escrow agent shall have been appointed and shall
have accepted such appointment in writing. If an instrument of acceptance by a
successor escrow agent shall not have been delivered to the Escrow Agent within
30 days after the giving of such notice of resignation, the resigning Escrow
Agent may petition any court of competent jurisdiction for the appointment of a
successor escrow agent.
9. This Escrow Agreement shall be construed in accordance with the laws of
the State of California without regard to conflict of law provisions thereof. It
may be executed in several counterparts, each one of which shall constitute an
original, and all collectively shall constitute but one and the same instrument.
10. Any notice, consent or request to be given in connection with any of
the terms or provisions of this Escrow Agreement shall be in writing and shall
be delivered by hand or sent by registered mail, postage prepaid:
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(i) If to the Company:
Attn: Xxx Xxxxxx, Chief Executive Officer
OXIS International, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(ii) if to Investor:
_______________________
_______________________
_______________________
_______________________
_______________________
(iii) if to Escrow Agent:
Xxxxxxx Xxxxx Xxxx & Black, LLP
Attn: Xxxxxxx Xxxxxxxxxx, Esq.
00 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
11. In addition to termination by its own terms, this Escrow Agreement may
be otherwise terminated pursuant a written agreement by the parties.
12. Upon termination of this Escrow Agreement, the Escrow Agent may request
from any and all of the parties hereto such additional assurances, certificates,
satisfactions, releases and/or other documents as it may reasonably deem
appropriate to evidence the termination of this Escrow Agreement.
13. This Escrow Agreement and all documents contemplated hereby contain the
entire agreement of the parties with respect to the subject matter hereof; any
amendment hereto or modification or variation hereof shall be ineffective unless
in writing signed by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Escrow
Agreement as of the date first above written.
INVESTOR
By: __________________________
Name:_________________________
(Print)
Title:__________________________
Address:
_______________________________
_______________________________
_______________________________
_______________________________
OXIS INTERNATIONAL, INC.
By __________________________
Name:________________________
Title:_________________________
XXXXXXX XXXXX XXXX & BLACK, LLP
as Escrow Agent
By: __________________________
Name: Xxxxxxx Xxxxxxxxxx
Title: Partner
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