exhibit101.htm


    
      

      

    


    Exhibit
10.1

     

    EXCHANGE
AGREEMENT

     

    THIS
EXCHANGE AGREEMENT (this “Agreement”), dated as of February 10, 2010, is entered
into by and between Oxis International, Inc., a Delaware corporation (“Oxis
International”), and Theorem Group, LLC, a California limited liability company
(the “Stockholder”).

     

    RECITALS

     

    A.           The
Stockholder, being the owner of all of the currently issued and outstanding
shares of Oxis International’s Series G Convertible Preferred Stock, par value
$.001 per share ("Series G Preferred"), currently owns 25,000 shares of Series G
Preferred;

     

    B.           The
documents issued by Oxis International evidencing the Series G Preferred contain
incorrect provisions, are ambiguous, and do not correctly reflect the terms
agreed to between Oxis International and the purchaser of the Series G
Preferred. In addition, a question has arisen as to the validity of the initial
issuance of the Series G Preferred, which shares were not created until several
months after the initial purchase and sale of the Series G
Preferred.

     

    C.           The
reports filed by Oxis International with the Securities and Exchange Commission
(the “SEC”) to disclose the terms of the Series G Preferred contain certain
inaccuracies, which inaccuracies create further uncertainties regarding the
rights of the Series G Preferred.  For example, Oxis International
initially disclosed that the Series G Preferred was designated as “Series E
Convertible Preferred Stock,” that the holder thereof could not convert the
Series G Preferred into more than 4.9% of Oxis International’s issued and
outstanding common stock (the Certificate of Designation states that the
foregoing percentage is 9.9%), and that the Series G Preferred had voting rights
on an as converted basis multiplied by 10 (Oxis International subsequently
disclosed that the voting multiple was 100).  Although most of these
inaccuracies have been corrected, there remains uncertainty as to certain of the
rights of the Series G Preferred.

     

    D.           Oxis
International and the Stockholder desire to correct the ambiguous and incorrect
provisions in the Certificate of Designation of the Series G Preferred, and
desire to clarify such corrected terms in the public reports filed by Oxis
International in its SEC reports.

     

    E.           Oxis
International has filed a Certificate of Designations with the Secretary of
State of the State of Delaware authorizing the issuance of a new series of Oxis
International’s preferred stock designated as “Series H Convertible Preferred
Stock” (the “Series H Preferred”), which Certificate of Designation corrects and
clarifies the incorrect and ambiguous terms of the Series G Preferred, but is
otherwise substantially similar to the Certificate of Designation of the Series
G Preferred.

     

    F.           In
order to correct and clarify the terms of the Series G Preferred, the
Stockholder desires to exchange all of its shares of Series G Preferred for an
equal number of newly issued shares of Series H Preferred, and Oxis
International desires to exchange the Series G Preferred

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    for an
equal number of newly issued shares of Series G Preferred, all on the terms and
conditions set forth in this Agreement.

     

    NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto, and of
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:

     

    ARTICLE
1.

     

    


     

    SHARE
EXCHANGE

     

    Subject
to the terms and conditions of this Agreement, and in reliance upon the
representations, warranties, covenants and agreements contained herein, Oxis
International and the Stockholder hereby agree to correct the Series G Preferred
equity investment of the Stockholder in Oxis International as
follows:

     

    1.1.           Exchange and Cancellation of
Series G Preferred.  Oxis International and the Stockholder
hereby agree to exchange all of the currently issued and outstanding shares of
Series G Preferred for new shares of Series H Preferred.  In order to
effect the exchange of shares of Series G Preferred for Series H Preferred,
concurrently with the execution of this Agreement, the Stockholder is delivering
to Oxis International the stock certificate evidencing the 25,000 issued and
outstanding shares of Series G Preferred owned by the
Stockholder.  The foregoing Series G Preferred stock certificate has
been duly endorsed by the Stockholder for transfer to, and cancellation by Oxis
International in a manner satisfactory to Oxis International.  Oxis
International hereby acknowledges receipt of such stock certificate and agrees
to cancel all of the shares of Series G Preferred represented by the stock
certificate.

     

    1.2.           Issuance of Series H
Preferred.  Concurrently with the execution of this Agreement,
and in exchange for the shares of Series G Preferred delivered by the
Stockholder to Oxis International for cancellation, Oxis International is
delivering to the Stockholder a new stock certificate representing 25,000 shares
of its new Series H Preferred.  The new shares of Series H Preferred
have a $1.00 per share stated value, a per share conversion price 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, and the
other rights, preferences and privileges contained in the “Certificate of
Designations--Series H Convertible Preferred Stock,” a certified copy of which
is attached hereto as Exhibit
A.

     

    1.3.           Oxis International Form
8-K.  Attached hereto as Exhibit B is the form
of a Current Report on Form 8-K that Oxis International hereby agrees to file
with the SEC no later than the fourth business day following the date of
execution of this Agreement and the exchange of securities being effected
concurrently with such execution.

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

     

    


      ARTICLE
2.

       

      STOCKHOLDER
RELEASE

    

     

    In
consideration of the issuance of the Series H Preferred and the other terms and
provisions of this Agreement, the Stockholder, on behalf of itself and on behalf
of its related entities (i.e., its shareholders, officers, directors,
administrators, principals, agents, attorneys, associates and other affiliates),
hereby, generally and unconditionally, releases, remises, acquits and forever
discharges Oxis International and its related entities (i.e., its officers,
directors, shareholders, principals, agents, attorneys, associates and other
affiliates), of and from any and all claims, demands, rights, actions, causes of
action, suits, contracts, debts, controversies, expenses, liabilities,
obligations, damages, losses, expenses (including, without limitation,
reasonable attorneys' fees), and allegations of any kind and character
whatsoever, whether legal, contractual, statutory, administrative or equitable
in nature or otherwise, direct or indirect, absolute, fixed or contingent, that
the Stockholder now owns, holds, has or claims to have, or owned at any time,
held, had or claimed to have had or may come to own, hold, have or claim to have
against Oxis International or its related entities arising out of or in
connection with the terms of the Series G Preferred and the Stockholder’s rights
thereunder.

     

    ARTICLE
3.

     

     

    REPRESENTATIONS
AND WARRANTIES OF STOCKHOLDER

     

    To induce
Oxis International to execute, deliver and perform this Agreement, the
Stockholder hereby represents and warrants to Oxis International as
follows:

     

    3.1.           Authority Relative to this
Agreement.  This Agreement has been duly authorized by all
necessary action of the Stockholder and has been duly executed and delivered by
the Stockholder, and is a valid and binding agreement of such Stockholder,
enforceable in accordance with its terms, except as such enforcement is subject
to any applicable bankruptcy, insolvency, reorganization or other laws relating
to or affecting creditors' rights generally and general principles of
equity.  Neither the execution nor the delivery of this Agreement nor
the consummation of the transactions contemplated hereby will conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in the imposition of any lien or encumbrance upon any
of the shares Series G Preferred that the Stockholder is hereby delivering to
Oxis International for cancellation.

     

    3.2.           Title to the Shares of
Series G Preferred.  The Stockholder owns, of record and
beneficially, all 25,000 shares of Series G Preferred, free and clear of all
pledges, security interests, liens, charges, encumbrances, equities, claims and
options of whatever nature.  No individual, corporation, entity or
person has any claim or interest in, to, or against any of the shares of Series
G Preferred owned by the Stockholder.

     

    3.3.           Investment
Intent.  The Stockholder is acquiring the shares of Series H
Preferred for investment for its own account, not as a nominee or agent, and not
with a view to, or for resale in connection with, any distribution
thereof.  The Stockholder understands that the

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    

     

    issuance
of the shares of Series H Preferred has not been, and will not be, registered
under the Securities Act by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the Stockholder’s investment intent and
the accuracy of the Stockholder’s representations as expressed
herein.  The Stockholder is an “accredited investor” as that term is
defined in the rules and regulations promulgated under the Securities Act, and
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of the investment to be made in the
shares of Series H Preferred.

     

    3.4.           Restrictions on Transfer;
Restrictive Legends.  The Stockholder understands that the
transfer of the Series H Preferred, as well as the shares of common stock
issuable upon the conversion of the Series H Preferred, is restricted by
applicable state and U.S. federal securities laws, and that the certificates
evidencing the shares of Series H Preferred have been imprinted, and the shares
of the underlying common stock will be imprinted, with the following (or
substantially equivalent) legend restricting transfer except in compliance
therewith:

     

    THIS
SECURITY HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), SHALL HAVE BECOME EFFECTIVE WITH
RESPECT THERETO, OR (ii) IN THE OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO OXIS INTERNATIONAL, INC., AN EXEMPTION UNDER THE SECURITIES ACT
AND FROM ANY APPLICABLE STATE SECURITIES LAWS IS AVAILABLE.

     

    The
legend set forth above shall be removed by Oxis International from the
aforementioned securities upon delivery to Oxis International of an opinion by
counsel, reasonably satisfactory to Oxis International, that a registration
statement under the Securities Act is at that time in effect with respect to the
legended security or that such security can be freely transferred in a public
sale without such a registration statement being in effect and that such
transfer will not jeopardize the exemption or exemptions from registration
pursuant to which Oxis International issued the shares of Series G Preferred and
Series H Preferred.

     

    3.5.           Information.  The
Stockholder has been furnished with all materials that it has requested relating
to the business, finances and operations of Oxis International and materials
relating to the Series G Preferred, and has been afforded the opportunity to ask
questions of the principals of Oxis International.  The Stockholder
understands that an investment in the Series G Preferred involves a high degree
of risk and that it has received such accounting, legal and tax advice as it
deems necessary to make an informed investment decision with respect to its
cancellation of the Series G Preferred and its acquisition of the Series G
Preferred.

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


     

    ARTICLE
4.

     

     

    REPRESENTATIONS
AND WARRANTIES OF OXIS INTERNATIONAL

     

    To induce
the Stockholder to execute, deliver and perform this Agreement, Oxis
International hereby represents and warrants to each the Stockholder as
follows:

     

    4.1.           Organization.  Oxis
International is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware with the power and authority to
conduct its business as it is now being conducted and to own and lease its
properties and assets.

     

    4.2.           Authorization; Enforcement;
Compliance with Other Laws.  Oxis International has the
requisite corporate power and authority to enter into and perform this Agreement
and to issue the shares of Series H Preferred in accordance with the terms of
this Agreement.  The execution and delivery of this Agreement by Oxis
International and the consummation by it of the transactions contemplated
hereby, including without limitation the issuance of the shares of Series H
Preferred, has been duly authorized by Oxis International's Board of Directors
and no further consent or authorization is required by Oxis International, its
Board of Directors or its stockholders.  Neither the execution nor the
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will conflict with, or result in a breach of the terms, conditions or
provisions of or constitute a default under any material agreement to which Oxis
International is a party.  This Agreement has been duly executed and
delivered by Oxis International and constitutes the valid and binding obligation
of Oxis International, enforceable against Oxis International in accordance with
its terms, except as such enforcement is subject to any applicable bankruptcy,
insolvency, reorganization or other law relating to or affecting creditors'
rights generally and general principles of equity.

     

    4.3.           Validity of
Issuance.  Upon the issuance of the shares of Series H
Preferred in accordance with the terms of this Agreement, the shares of Series H
Preferred shall be (i) validly issued, fully paid and non-assessable; (ii) free
from all taxes or liens; and (iii) the Stockholder will be entitled to all
rights accorded to a holder of such shares of Series H Preferred in the
Certificate of Designation of the Series H Preferred.

     

    4.4.           Exempt
Transaction.  The issuance of the shares of Series H Preferred
hereunder shall constitute a transaction exempt from the registration
requirements of Section 5 of the Securities Act and the qualification or
registration requirements of any applicable state securities laws.

     

    ARTICLE
5.

    


     

    MISCELLANEOUS

     

    5.1.           Survival of Representations,
Warranties.  Each of the representations, warranties,
agreements, covenants and obligations herein is material and shall be deemed to
have been relied

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    upon by
the other party or parties and shall survive after the date hereof and shall not
merge in the performance of any obligation by any party hereto.

     

    5.2.           Entire
Agreement.  This Agreement, and the other certificates,
agreements, and other instruments to be executed and delivered by the parties in
connection with the transactions contemplated hereby, constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede all prior oral or written agreements with respect to the subject
matter hereof.

     

    5.3.           Parties Bound by Agreement;
Successors and Assigns.  The terms, conditions, and obligations
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns.

     

    5.4.           Amendments and
Waivers.  Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
Oxis International and the Stockholder.

     

    5.5.           Attorney’s
Fees.  Should any party hereto retain counsel for the purpose
of enforcing, or preventing the breach of, any provision hereof including the
institution of any action or proceeding, whether by arbitration, judicial or
quasi-judicial action or otherwise, to enforce any provision hereof or for
damages for any alleged breach of any provision hereof, or for a declaration of
such party’s rights or obligations hereunder, then, whether such matter is
settled by negotiation, or by arbitration or judicial determination, the
prevailing party shall be entitled to be reimbursed by the losing party for all
costs and expenses incurred thereby, including reasonable attorneys’ fees for
the services rendered to such prevailing party.

     

    5.6.           Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall constitute the
same instrument.

     

    5.7.           Headings.  The
headings of the Sections and paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction hereof.

     

    5.8.           Notices.  All
notices, requests, demands, claims, and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given: when received, if personally delivered; when transmitted,
if transmitted by telecopy, electronic or digital transmission method; three
business days after such notice, request, demand claim or other communication is
sent, if sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to (i) Oxis International at its corporate headquarters,
or (ii) the Stockholder at 2049 Century Park East, Suite 3630, Los Angeles,
California 90067.  Any party may send any notice, request, demand,
claim, or other communication hereunder to the intended recipient at the address
set forth above using any other means, but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless and
until it actually is received by the intended recipient.  Any
party

     


    
      
        
           

        

         


      

      
         


        
          

        

      

      
         


      

    


    may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other parties notice
in the manner herein set forth.

     

    5.9.           Governing
Law.  This Agreement shall be construed in accordance with and
governed by the laws of the State of California without giving effect to the
principles of choice of law thereof.

     

    5.10.           Arbitration.  Any
dispute arising under or in connection with any matter related to this Agreement
or any related agreement shall be resolved exclusively by
arbitration.  The arbitration shall be in conformity with and subject
to the then-applicable rules and procedures of the American Arbitration
Association or, at the election of the demanding party, any other form of
“alternative dispute resolution” procedure generally recognized in the State of
California; e.g., a reference pursuant to California Code of Civil Procedure
(“Code”) Section 638 or reliance upon Section 1280 et. seq. of the
Code.  All parties agree to be (1) subject to the jurisdiction and
venue of the arbitration in the County of Los Angeles, State of California, (2)
bound by the decision of the arbitrator as the final decision with respect to
the dispute and (3) subject to the jurisdiction of the Superior Court of the
State of California for the purpose of confirmation and enforcement of any
award.

     

    IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first indicated above.

     

    
      	 
      	
              OXIS
      INTERNATIONAL, INC.,

              a
      Delaware corporation

               

               

               

              By: /s/
      Anthony Calaldo                                                                

              Name:
      Anthony Cataldo

              Title:
      Chief Executive Officer

               

            
	 
      	
              THEOREM
      GROUP, LLC,

              a
      California limited liability company

               

               

              By:
      /s/
      Anshuman Dube      

                   Its:  Anshuman
      Dube, Managing Member