Exhibit
3.1
CERTIFICATE
OF DESIGNATION OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES
E PREFERRED STOCK OF
OXIS
INTERNATIONAL, INC.
Pursuant
to Section 151 of the Delaware
General
Corporation Law
I, Maurice Spitz, Chief
Executive Officer of Oxis International, Inc., a corporation organized and
existing under the Delaware General Corporation Law (the “Corporation”), in
accordance with the provisions of Section 151 of such law, DO HEREBY CERTIFY
that at a meeting of the Board of Directors that the following resolutions were
adopted:
RESOLVED, that pursuant to the
authority vested in the Board of Directors of the Corporation in accordance with
the provisions of Article FOURTH of the Corporation’s Certificate of
Incorporation, as amended, a series of Preferred Stock of the Corporation be,
and hereby is, created, and the powers, designations, preferences and relative,
participating, optional or other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof, be, and hereby
are, as follows:
Section 1. Designation, Amount and Par
Value. The series of preferred stock shall be designated as its Series E
Convertible Preferred Stock (the “Preferred Stock”) and
the number of shares so designated shall be 25,000 (which shall not be subject
to increase without the consent of a majority of the holders of the Preferred
Stock (each, a “Holder” and
collectively, the “Holders”)). Each
share of Preferred Stock shall have $.001 par value and a stated value equal to
$1.00 (as adjusted from time to time in accordance with the terms hereof, the
“Stated
Value”). Capitalized terms not otherwise defined herein shall
have the meaning given such terms in Section 7 hereof.
Section 2. Voting Rights. Except
as otherwise provided herein and as otherwise prohibited by law, the Preferred
Stock shall have voting rights on an as converted basis multiplied by 10.
Without limiting the generality of the foregoing sentence, so long as any shares
of Preferred Stock are outstanding, the Corporation shall not, without the
affirmative vote of the Holders of the shares of the Preferred Stock then
outstanding, (a) alter or change adversely the powers, preferences or rights
given to the Preferred Stock or alter or amend this Certificate of Designation,
(b) authorize or create any class of stock ranking as to dividends, redemption
or distribution of assets upon a Liquidation (as defined in Section 4) senior to
or otherwise pari passu with the Preferred Stock, (c) amend its certificate of
incorporation or other charter documents so as to affect adversely any rights of
the Holders, (d) increase the authorized number of shares of Preferred Stock,
(e) enter into any agreement with respect to the foregoing, (f) voluntarily file
for bankruptcy, liquidate the Corporation’s assets or make an assignment for the
benefit of the Corporation’s creditors, or (g) materially change the nature of
the Corporation’s business.
Section
3. Liquidation.
Upon any liquidation, dissolution or winding-up of the Corporation, whether
voluntary or involuntary (a “Liquidation”), the
Holders shall be entitled to receive out of the assets of the Corporation,
whether such assets are capital or surplus, for each share of Preferred Stock an
amount equal to the Stated Value per share plus interest of 15% per year and any
other fees or liquidated damages owing thereon before any distribution or
payment shall be made to the holders of any Junior Securities, and if the assets
of the Corporation shall be insufficient to pay in full such amounts, then the
entire assets to be distributed to the Holders shall be distributed among the
Holders ratably in accordance with the respective amounts that would be payable
on such shares if all amounts payable thereon were paid in full. A
Fundamental Transaction or Change of Control Transaction shall not be treated as
a Liquidation. The Corporation shall mail written notice of any such
Liquidation, not less than 45 days prior to the payment date stated therein, to
each record Holder.
Section
4. Conversion.
(a) (i)
Conversions at Option of
Holder. Each share of Preferred Stock shall be convertible into shares of
Common Stock (subject to the limitations set forth in Section 4(a)(iii))
determined by dividing the Stated Value of such share by the Set Price, at the
option of the Holder, at any time and from time to time from and after the
Original Issue Date. Holders shall effect conversions by providing the
Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of
Conversion”), to the attention of Chief Financial Officer. Each Notice of
Conversion shall specify the number of shares of Preferred Stock to be
converted, the number of shares of Preferred Stock owned prior to the conversion
at issue, the number of shares of Preferred Stock owned subsequent to the
conversion at issue and the date on which such conversion is to be effected,
which date may not be prior to the date the Holder delivers such Notice of
Conversion to the Corporation by facsimile (the “Conversion Date”). If
no Conversion Date is specified in a Notice of Conversion, the Conversion Date
shall be the date that such Notice of Conversion to the Corporation is deemed
delivered hereunder. The calculations and entries set forth in the Notice of
Conversion shall control in the absence of manifest or mathematical
error.
(ii)
Beneficial Ownership
Limitation. (A) The Corporation shall not effect any
conversion of the Preferred Stock, and the Holder shall not have the right to
convert any portion of the Preferred Stock to the extent that after giving
effect to such conversion, the Holder (together with the Holder’s affiliates),
as set forth on the applicable Notice of Conversion, would beneficially own in
excess of 9.9% of the number of shares of the Common Stock Outstanding
immediately after giving effect to such conversion. Beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange
Act. To the extent that the limitation contained in this Section
4(a)(iii) applies, the determination of whether the Preferred Stock is
convertible (in relation to other securities owned by the Holder together with
any affiliates) and of which shares of Preferred Stock is convertible shall
be
in the
sole discretion of such Holder, and the submission of a Notice of Conversion
shall be deemed to be such Holder’s determination of whether the shares of
Preferred Stock may be converted (in relation to other securities owned by such
Holder) and which shares of the Preferred Stock is convertible, in each case
subject to such aggregate percentage limitations. To ensure compliance with this
restriction, the Holder will be deemed to represent to the Corporation each time
it delivers a Notice of Conversion that such Notice of Conversion has not
violated the restrictions set forth in this paragraph and the Corporation shall
have no obligation to verify or confirm the accuracy of such
determination. For purposes of this Section 4(a)(iii), in determining
the number of outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in the most recent of
the following: (A) the Corporation’s most recent Form 10-QSB or 10-Q or Form
10-K-SB or 10-K, as the case may be, (B) a more recent public announcement by
the Corporation or (C) any other notice by the Corporation or the Corporation’s
transfer agent setting forth the number of shares of Common Stock
Outstanding. Upon the written or oral request of the Holder, the
Corporation shall within two Trading Days confirm orally and in writing to the
Holder the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Corporation,
including the Preferred Stock, by the Holder or its affiliates since the date as
of which such number of outstanding shares of Common Stock was
reported. This restriction may not be waived.
(iii)
Limitation on Number of Shares
Issuable. Notwithstanding anything herein to the contrary, the
Corporation shall not issue to any Holder any shares of Common Stock, including
pursuant to any rights herein, including, without limitation, any conversion
rights or right to issue shares of Common Stock in payment of dividends, to the
extent such shares, when added to the number of shares of Common Stock issued or
issuable upon conversion of any shares of Preferred Stock pursuant to
Section 4(a)(i) would exceed 19.999% of the Corporation’s outstanding Common
Stock immediately prior to the Conversion Date or such greater number of shares
of Common Stock permitted pursuant to the corporate governance rules of the
Principal Market that is at the time the principal trading exchange or market
for the Common Stock, based upon share volume, as confirmed in writing by
counsel to the Corporation (the “Maximum Aggregate Share
Amount”), unless the Corporation first obtains shareholder approval
permitting such issuances in accordance with the Principal Market rules (“Shareholder
Approval”). Each Holder shall be entitled to a portion of the
Maximum Aggregate Share Amount equal to the quotient obtained by dividing (x)
such the number of shares of Preferred Stock initially purchased by such Holder
by (y) the aggregate number of shares purchased by all Holders. Such
portions shall be adjusted upward ratably in the event all of the shares of
Preferred Stock of any Holder are no longer outstanding. If
at
any time
the number of shares of Common Stock which could, notwithstanding the limitation
set forth herein, be issuable and sold to all Holders during the following 12
months (assuming all dividends are paid in shares of Common Stock during such
period of determination based upon the VWAP at the time of any such
determination) equals or exceeds the Maximum Aggregate Share Amount, then the
Corporation shall, subject to any requirements in the Subscription Agreement to
act sooner, obtain the Shareholder Approval applicable to such issuance as soon
as is possible, but in any event not later than the 75th day
after the date in which the Corporation determines (or is notified by any
Holder) that the Maximum Aggregate Share Amount could be exceeded and shall
continue to seek to obtain Shareholder Approval every 75 days until such
Shareholder Approval is obtained. If the Corporation shall have
failed to obtain the Shareholder Approval on or prior to the initial 75th day
after the date in which the Corporation determines (or is notified by a Holder)
that the Maximum Aggregate Share Amount would be exceeded, then the dividend on
the Preferred Stock shall thereafter be 15% per annum until such Shareholder
Approval is obtained.
(b) (i)
The conversion price for each share of Preferred Stock shall equal the lesser of
(A) $0.01 and (B) 60% of the average of the 3 lowest trading prices occurring at
any time during the 20 trading days preceding conversion (the “Set Price”), subject
to adjustment below.
(ii) if the Corporation, at any time
while the Preferred Stock is outstanding: (A) shall pay a stock dividend or
otherwise make a distribution or distributions on shares of its Common Stock or
any other equity or equity equivalent securities payable in shares of Common
Stock, (B) subdivide outstanding shares of Common Stock into a larger
number of shares, (C) combine (including by way of reverse stock split)
outstanding shares of Common Stock into a smaller number of shares, or (D) issue
by reclassification of shares of the Common Stock any shares of capital stock of
the Corporation, then the Set Price shall be multiplied by a fraction of which
the numerator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding before such event and of which the denominator shall
be the number of shares of Common Stock Outstanding after such
event. Any adjustment made pursuant to this Section shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision,
combination or reclassification.
(iii) except
in connection with the issuance of securities associated with (a) shares of
Common Stock or options to employees, officers, consultants or directors of the
Corporation pursuant to any stock or option plan duly adopted by a majority of
the non-employee members of the
Board of
Directors of the Corporation or a majority of the members of a committee of
non-employee directors established for such purpose [so long as such issuances
in the aggregate do not exceed ten percent (10%) of the issued and outstanding
shares of Common Stock at any given point in time and such issuances are issued
at or above the then current market price], or (b) securities upon the exercise
of or conversion of any securities issued hereunder, convertible securities,
options or warrants issued and outstanding on the date of the Purchase
Agreement, provided that such securities have not been amended since the date of
the Purchase Agreement to increase the number of such securities or to decrease
the exercise or conversion price of any such securities (“Excepted Issuances”),
if the Corporation, at any time while the Preferred Stock is outstanding, shall
issue rights, options or warrants to holders of Common Stock (and not to
Holders) entitling them to subscribe for or purchase shares of Common Stock at a
price per share (the “Effective Price”)
less than the Set Price then in effect, then and in each such case the then
existing Set Price shall be reduced to a price equal to the Effective Price (the
“New Set
Price”). Such adjustment shall be made whenever such rights or
warrants are issued, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights,
options or warrants.
(iv) except
in connection with an Excepted Issuance, if the Corporation or any Subsidiary
thereof at any time while any of the Preferred Stock is outstanding, shall
offer, sell, grant any option or warrant to purchase or offer, sell or grant any
right to reprice its securities, or otherwise dispose of or issue (or announce
any offer, sale, grant or any option to purchase or other disposition) any
Common Stock or any equity or equity equivalent securities (including any
equity, debt or other instrument that is at any time over the life thereof
convertible into or exchangeable for Common Stock) (collectively, “Common Stock
Equivalents”) entitling any Person to acquire shares of Common Stock, at
an Effective Price per share less than the Set Price then the Set Price shall be
reduced to a price equal the Effective Price. Such adjustment shall be made
whenever such Common Stock or Common Stock Equivalents are issued.
(v) if the
Corporation, at any time while the Preferred Stock is outstanding, shall
distribute to all holders of Common Stock (and not to Holders) evidences of its
indebtedness or assets or rights or warrants to subscribe for or purchase any
security other than the Common Stock (which shall be subject to Section
4(c)(iii), then in each such case the Set Price shall be adjusted by multiplying
the Set Price in effect immediately prior to the record date fixed for
determination of stockholders entitled to receive such distribution by a
fraction of which the denominator shall be the VWAP determined as of the record
date mentioned above, and of which the numerator shall be such VWAP on such
record date less the then per share fair market value at such record date of the
portion of such assets or evidence of indebtedness so distributed applicable to
one outstanding share
of the
Common Stock as determined by the Board of Directors in good
faith. In either case the adjustments shall be described in a
statement provided to the Holders of the portion of assets or evidences of
indebtedness so distributed or such subscription rights applicable to one share
of Common Stock. Such adjustment shall be made whenever any such
distribution is made and shall become effective immediately after the record
date mentioned above.
(vi) All
calculations under this Section 4(c) shall be made to the nearest cent or the
nearest 1/100th of a share, as the case may be. The number of shares of Common
Stock outstanding at any given time shall not include shares owned or held by or
for the account of the Corporation, and the disposition of any such shares shall
be considered an issue or sale of Common Stock. For purposes of this Section
4(c), the number of shares of Common Stock deemed to be outstanding (the “Common Stock
Outstanding”) as of a given date shall be the sum of the number of shares
of Common Stock (excluding treasury shares, if any) issued and
outstanding.
(vii) Notwithstanding
anything to the contrary herein, no adjustment shall be made hereunder in
connection with an Excepted Issuance.
(viii) Whenever
the Set Price is adjusted pursuant to this Section the Corporation shall
promptly mail to each Holder, a notice setting forth the Set Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.
Section 5. Definitions. For the
purposes hereof, the following terms shall have the following
meanings:
“Change of Control
Transaction” means the occurrence after the date hereof of any of (a) an
acquisition after the date hereof by an individual or legal entity or “group”
(as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of
effective control (whether through legal or beneficial ownership of capital
stock of the Corporation, by contract or otherwise) of in excess of 33% of the
voting securities of the Corporation, or (b) the execution by the Corporation of
an agreement to which the Corporation is a party or by which it is
bound, providing for any of the events set forth above in (a).
“Closing” means
closing of the purchase and sale of the Preferred Stock.
“Closing Bid Price”
means, for any security as of any date, the last closing bid price of such
security on the OTC Bulletin Board or other principal exchange on which such
security is traded as reported by Bloomberg, or, if no closing bid price is
reported for such security by Bloomberg, the last closing trade price of such
security as reported by Bloomberg, or, if no last closing trade price is
reported for
such
security by Bloomberg, the average of the bid prices of any market makers for
such security as reported in the “pink sheets” by the National Quotation Bureau,
Inc. If the Closing Bid Price cannot be calculated for such security
on such date on any of the foregoing bases, the Closing Bid Price of such
security on such date shall be the fair market value as mutually determined by
the Corporation and the holders of a majority of the outstanding shares of
Preferred Stock.
“Closing Date” means
the Trading Day when all of the Transaction Documents have been executed and
delivered by the applicable parties thereto, and all conditions precedent to (i)
the Holders’ obligations to pay the Subscription Amount and (ii) the
Corporation’s obligations to deliver the shares of Preferred Stock and Warrants
have been satisfied or waived.
“Commission” means the
Securities and Exchange Commission.
“Common Stock” means
the Corporation’s common stock, no par value per share, and stock of any other
class into which such shares may hereafter have been reclassified or
changed.
“Common Stock
Outstanding” shall have the meaning set forth in Section
4(c)(vi).
“Conversion Date”
shall have the meaning set forth in Section 4(a)(i).
“Conversion Shares”
means, collectively, the shares of Common Stock into which the shares of
Preferred Stock are convertible in accordance with the terms
hereof.
“Dilutive Issuance”
shall have the meaning set forth in Section 4(c)(iv).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Holder” shall have
the meaning given such term in Section 1 hereof.
“Junior Securities”
means the Common Stock and all other equity or equity equivalent securities of
the Corporation other than those securities that are (a) outstanding on the
Original Issue Date and (b) which are explicitly senior in rights or liquidation
preference to the Preferred Stock.
“Liquidation” shall
have the meaning given such term in Section 4.
“Notice of Conversion”
shall have the meaning given such term in Section 4(a).
“Original Issue Date”
shall mean the date of the first issuance of any shares of the Preferred Stock
regardless of the number of transfers of any particular shares
of
Preferred Stock and regardless of the number of certificates which may be issued
to evidence such Preferred Stock.
“Person” means a
corporation, an association, a partnership, an organization, a business, an
individual, a government or political subdivision thereof or a governmental
agency.
“Principal Market”
initially means the Over-the-Counter Bulletin Board and shall also include the
American Stock Exchange, NASDAQ Small-Cap Market, the New York Stock Exchange,
or the NASDAQ National Market, whichever is at the time the principal trading
exchange or market for the Common Stock, based upon share volume.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Set Price” shall have
the meaning set forth in Section 4(c)(i).
“Share Delivery Date”
shall have the meaning given such term in Section 4(b).
“Stated Value” shall
have the meaning given such term in Section 1.
“Subsidiary” shall
have the meaning given to such term in the Purchase Agreement.
“Trading Day” shall
mean any day during which the Principal Market shall be open for
business.
“VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Principal Market, the
daily volume weighted average price of the Common Stock for such date (or the
nearest preceding date) on the Principal Market on which the Common Stock is
then listed or quoted as reported by Bloomberg Financial L.P. (based on a
Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time); (b) if
the Common Stock is not then listed or quoted on a Principal Market and if
prices for the Common Stock are then quoted on the OTC Bulletin Board, the
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not
then listed or quoted on the OTC Bulletin Board and if prices for the Common
Stock are then reported in the “Pink Sheets” published by the National Quotation
Bureau Incorporated (or a similar organization or agency succeeding to its
functions of reporting prices), the most recent bid price per share of the
Common Stock so reported; or (d) in all other cases, the fair market value
of a share of Common Stock
as
determined by an independent appraiser selected in good faith by the Purchasers
and reasonably acceptable to the Corporation.
Section
6. Miscellaneous.
(a) The
Corporation covenants that it will at all times reserve and keep available out
of its authorized and unissued shares of Common Stock solely for the purpose of
issuance upon conversion of Preferred Stock, each as herein provided, free from
preemptive rights or any other actual contingent purchase rights of persons
other than the Holders, not less than such number of shares of Common Stock as
shall be issuable upon the conversion of all outstanding shares of Preferred
Stock. The Corporation covenants that all shares of Common Stock that shall be
so issuable shall, upon issue, be duly and validly authorized, issued and fully
paid and nonassessable.
(b) Upon
a conversion hereunder the Corporation shall not be required to issue stock
certificates representing fractions of shares of Common Stock, but may if
otherwise permitted, make a cash payment in respect of any final fraction of a
share based on the VWAP at such time. If any fraction of a Conversion Share
would, except for the provisions of this Section, be issuable upon a conversion
hereunder, the Corporation shall pay an amount in cash equal to the VWAP
immediately prior to the applicable conversion multiplied by such
fraction.
(c) The
issuance of certificates for Common Stock on conversion of Preferred Stock shall
be made without charge to the Holders thereof for any documentary stamp or
similar taxes that may be payable in respect of the issue or delivery of such
certificate, provided that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issuance and
delivery of any such certificate upon conversion in a name other than that of
the Holder of such shares of Preferred Stock so converted.
(d) To
effect conversions or redemptions, as the case may be, of shares of Preferred
Stock, a Holder shall not be required to surrender the certificate(s)
representing such shares of Preferred Stock to the Corporation unless all of the
shares of Preferred Stock represented thereby are so converted, in which case
the Holder shall deliver the certificate representing such share of Preferred
Stock promptly following the Conversion Date at issue. Shares of
Preferred Stock converted into Common Stock or redeemed in accordance with the
terms hereof shall be canceled and may not be reissued.
(e) Any
and all notices or other communications or deliveries to be provided by the
Holders of the Preferred Stock hereunder, including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by facsimile
or sent by a nationally recognized overnight courier service, addressed to the
attention of the Chief Executive Officer of the Corporation addressed to 323
Vintage Park Drive, Suite B, Foster City, California 94404; Fax: 650-212-2569 or
to such other address or facsimile number as shall be specified in writing by
the Corporation for
such
purpose. Any and all notices or other communications or deliveries to be
provided by the Corporation hereunder shall be in writing and delivered
personally, by facsimile or sent by a nationally recognized overnight courier
service, addressed to each Holder at the facsimile telephone number or address
of such Holder appearing on the books of the Corporation, which address shall
initially be the address of such Holder set forth on the signature pages of the
Purchase Agreement, or such other address as the Corporation or a Holder may
designate by ten days advance written notice to the other parties hereto. Any
notice or other communication or deliveries hereunder shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 6:30 p.m. (New York City time) (with
confirmation of transmission), (ii) the date after the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section later than 6:30 p.m. (New York City
time) on any date and earlier than 11:59 p.m. (New York City time) on such date
(with confirmation of transmission), (iii) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid, (iv)
one day after deposit with a nationally recognized overnight courier service,
specifying next day delivery, with written verification of service, or (v) upon
actual receipt by the party to whom such notice is required to be
given.
(f) For purposes hereof, a
share of Preferred Stock is outstanding until such date as the Holder shall have
received the Conversion Shares or redemption amount (as the case may be)
issuable or payable to it in accordance with this Certificate of
Designations.
(g) Except as
expressly provided herein, no provision of this Certificate of Designation shall
alter or impair the obligation of the Corporation, which is absolute and
unconditional, to pay the liquidated damages (if any) on, the shares of
Preferred Stock at the time, place, and rate, and in the coin or currency,
herein prescribed.
(h) If a
Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or
destroyed, the Corporation shall execute and deliver, in exchange and
substitution for and upon cancellation of a mutilated certificate, or in lieu of
or in substitution for a lost, stolen or destroyed certificate, a new
certificate for the shares of Preferred Stock so mutilated, lost, stolen or
destroyed but only upon receipt of evidence of such loss, theft or destruction
of such certificate, and of the ownership hereof, and indemnity, if requested,
all reasonably satisfactory to the Corporation.
(i) Any
waiver by the Corporation or the Holder of a breach of any provision of this
Certificate of Designation shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Certificate of Designation. The failure of the Corporation or
the Holder to insist upon strict adherence to any term of this Certificate of
Designation on one or more occasions shall not be considered a waiver or deprive
that party of
the right
thereafter to insist upon strict adherence to that term or any other term of
this Certificate of Designation. Any waiver must be in
writing.
(j) If any
provision of this Certificate of Designation is invalid, illegal or
unenforceable, the balance of this Certificate of Designation shall remain in
effect, and if any provision is inapplicable to any person or circumstance, it
shall nevertheless remain applicable to all other persons and
circumstances. If it shall be found that any interest or other amount
deemed interest due hereunder violates applicable laws governing usury, the
applicable rate of interest due hereunder shall automatically be lowered to
equal the maximum permitted rate of interest.
(k) Whenever
any payment or other obligation hereunder shall be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business
Day.
(l) The
headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designation and shall not be deemed to limit or affect any
of the provisions hereof.
(m) RESOLVED,
FURTHER, that the Chairman, the president or any
vice-president, and the secretary or any assistant secretary,
of the Corporation be and they hereby are authorized and directed to prepare and
file a Certificate of Designation of Preferences, Rights and Limitations in
accordance with the foregoing resolution and the provisions of Delaware
law.
IN
WITNESS WHEREOF, the undersigned have executed this Certificate this 17th day
of November 2008.
_/s/Maurice
Spitz
Name:
Maurice Spitz
Title:
CEO President
ANNEX
A
NOTICE OF
CONVERSION
(To be
Executed by the Registered Holder in order to convert shares of Preferred
Stock)
The
undersigned hereby elects to convert the number of shares of Convertible
Preferred Stock indicated below, into shares of common stock, no par value per
share (the “Common
Stock”), of Oxis International, Inc., a Delaware corporation (the “Corporation”),
according to the conditions hereof, as of the date written below. If shares are
to be issued in the name of a person other than undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith such certificates and opinions as reasonably requested by the
Corporation in accordance therewith. No fee will be charged to the Holder for
any conversion, except for such transfer taxes, if any.
Conversion
calculations:
Date to Effect Conversion
-----------------------------------------
Number of shares of Preferred Stock
owned prior to Conversion
-----------------------------------------
Number of shares of Preferred Stock to
be Converted
-----------------------------------------
Stated Value of shares of Preferred
Stock to be Converted
-----------------------------------------
Number of shares of Common Stock to be
Issued
-----------------------------------------
Applicable Set Price
-----------------------------------------
Number of shares of Preferred Stock
subsequent to Conversion
-----------------------------------------
[HOLDER]
By:_______________________
Name:
Title:
12