SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of
incorporation
or organization)
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94-1620407
(I.R.S.
employer
identification
number)
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323
Vintage Park Drive, Suite B, Foster City, CA 94404
(Address
of principal executive offices and zip
code)
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AMENDED
AND RESTATED 2003 STOCK INCENTIVE PLAN
(Full
Title of the Plan)
Marvin
S.
Hausman, M.D., President & Chief Executive Officer
323
Vintage Park Drive
Suite
B
Foster
City, California 94404
(650)
212-2568
(Name,
Address and Telephone Number of Agent for Service)
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of Securities to be Registered
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Amount
to be Registered (1) (2)
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Proposed
Maximum Offering Price per Share (3)
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Proposed
Maximum Aggregate Offering Price (3)
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Amount
of Registration Fee
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Common
Stock, par value $0.001
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2,000,000
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$0.22
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$440,000
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$47.08
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(1) Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended, (the “Securities
Act”), this Registration Statement includes an indeterminate number of
additional shares which may be offered and issued to prevent dilution from
stock
splits, stock dividends or similar transactions as provided in the above
referenced plan.
(2) Pursuant
to Rule 429 under the Securities Act of 1933, as amended (the “Securities Act”),
an additional 5,700,000 common shares in respect of the OXIS International,
Inc.
2003 Stock Incentive Plan, as amended and restated, are being carried forward
to
this Registration Statement. These shares were previously registered pursuant
to
Registration Statement No. 333-113507 previously filed on March 11, 2004 and
for
which a registration fee was previously paid.
(3) Calculated
solely for purposes of calculating the registration fee in accordance with
Rule
457(h) and (c) under the Securities Act of 1933, as amended, based upon the
average of the high and low prices of OXIS International, Inc. Common Stock
reported on the OTC Bulletin Board as of November 14, 2006, a date within five
business days prior to the filing of this registration statement.
EXPLANATORY
NOTE
This
Registration Statement is being filed to register 2,000,000 shares of the
Company’s Common Stock added to the shares reserved for issuance under the OXIS
International, Inc. 2003 Stock Incentive Plan as amended and restated on August
1, 2006. This Registration Statement covers 5,700,000 additional common shares
issuable pursuant to the OXIS International, Inc. 2003 Stock Incentive Plan,
as
amended and restated, and which were previously registered pursuant to a
Registration Statement on Form S-8 (Registration Statement No. 333-113507),
as
filed with the Securities and Exchange Commission on March 11, 2004, which
is
hereby incorporated by reference.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
OXIS
International, Inc. hereby incorporates by reference into this Registraton
Statement the following documents previously filed with the Securities and
Exchange Commission (“SEC”):
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1.
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The
Registrant’s Annual Report on Form 10-KSB for the year ended December 31,
2005, filed with the SEC on March 31,
2006;
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2.
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The
Registrant’s Quarterly Reports on Form 10-QSB for the quarters ended March
31, 2006, June 30, 2006 and September 30, 2006, filed with the SEC
on May
12, 2006, August 14, 2006, and November 14, 2006
respectively;
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3.
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The
Registrant’s Registration Statement on Form S-8 (Registration No.
333-113507) filed with the SEC on March 11, 2004;
and
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4.
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The
Registrant’s current reports on Form 8-K filed with the SEC on April 4,
2006, May 10, 2006, May 31, 2006, June 29, 2006, July 26, 2006, September
21, 2006, October 16, 2006, October 26, 2006, November 13, 2006 and
November 15, 2006.
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5.
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The
description of the Company’s Common Stock contained in the Company’s
Prospectus dated June 18, 1969 (File No. 0361150) filed pursuant
to
Section 12 of the Exchange Act on June 23,
1969.
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All
documents
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the
Exchange Act after the date of this Registration Statement, and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item
4. Description
of Securities.
Not
applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification
of Directors and Officers.
The
Company has the power, pursuant to Section 102(7) of the Delaware General
Corporation Law (“Delaware Law”), to limit the liability of directors of the
Company for certain breaches of fiduciary duty and, pursuant to Section 145
of
the Delaware Law, to indemnify its officers and directors and other persons
for
certain acts.
The
Company’s Restated Certificate of Incorporation includes the following
provisions:
“A
director of the Company shall not be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director’s duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Company shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended. Any
repeal or modification of this Article by the stockholders of the Company shall
not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.”
“The
Company shall indemnify any and all persons whom it has the power to indemnify
pursuant to the General Corporation Law of Delaware against any and all
expenses, judgments, fines, amounts paid in settlement, and any other
liabilities to the fullest extent permitted by such law and may at the
discretion of the Board of Directors, purchase and maintain insurance, at its
expense, to protect itself and such persons against any expense, judgment,
fine
amount paid in settlement or other liability, whether or not the Company would
have the power to so indemnify such person under the General Corporation Law
of
Delaware.”
Pursuant
to Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they
are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of a corporation,
and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. The Company believes that these provisions are
necessary to attract and retain qualified persons as directors and officers.
These provisions do not eliminate liability for breach of the director’s duty of
loyalty to the Company or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for
any
transaction from which the director derived an improper personal benefit or
for
any willful or negligent payment of any unlawful dividend or any unlawful stock
purchase agreement or redemption.
Section
145 of the Delaware Law authorizes a court to award, or a corporation’s board of
directors to grant, indemnification to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Securities Act.
In
addition the Company has entered into indemnity agreements with its directors
and its executive officers that require the Company to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually
and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person
may
be made a party by reason of the fact that such person is or was a director
or
officer of the Company, provided such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of
the Company. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
The
Company has purchased and maintains an insurance policy covering the officers
and directors of the Company with respect to certain liabilities arising under
the Securities Act or otherwise.
Item
7. Exemption
from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
No. Description
of Document
5.1 Opinion
of Richardson & Patel LLP regarding legality of the Common Stock being
registered.
23.1 Consent
of Richardson
& Patel LLP (Reference is made to Exhibit 5.1)
23.2 Consent
of Williams
& Webster, P.S., Independent Auditors
24.1 Power
of Attorney
(See signature page)
Item
9. Undertakings.
(a)
The
undersigned Registrant hereby undertakes:
(1)
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed
in
the Registration Statement or any material change to such information in the
Registration Statement.
(2)
That,
for the purpose of determining any liability under the Securities Act, each
such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b)
The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Act, each filing of the Registrant’s annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee plan’s annual report pursuant to Section 13(d) of the
Exchange Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act
may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of the expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933 as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Foster City, State of California, on the 16th day
of
November, 2006.
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OXIS
INTERNATIONAL, INC. |
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By: |
/s/
Marvin
S. Hausman, M.D. |
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Marvin
S. Hausman, M.D. |
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President
and
Chief Executive Officer |
POWER
OF ATTORNEY
We,
the
undersigned, hereby constitute and appoint Marvin S. Hausman, M.D. individually
as our true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for us and in our name, place and stead, in
any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as we might or could do in person, hereby ratifying and confirming
all
that said attorney-in-fact and agent or his substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated:
Signature |
Title |
Date |
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/s/ Marvin
S. Hausman, M.D.
Marvin
S. Hausman, M.D.
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President
& Chief Executive Officer (Principal Executive Officer) |
November
16, 2006 |
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/s/ S.
Colin Neill
S.
Colin Neill
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Secretary,
Director |
November
16, 2006 |
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/s/ Steven
T. Guillen
Steven
T. Guillen
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Director |
November
16, 2006 |
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/s/ Gary
Post
Gary
Post
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Director |
November
16, 2006 |
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/s/ John
E. Repine, M.D.
John
E. Repine, M.D.
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Director |
November
16, 2006 |
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