-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wjsfhm+7M0W4+pFHqyGVbP+g7woUr3eKFycYG0VPPZYJImVCt1M92Iuq4c4Cw4oD t11vs1yYYpoUlbU1NVguxA== 0000810084-96-000024.txt : 19961217 0000810084-96-000024.hdr.sgml : 19961217 ACCESSION NUMBER: 0000810084-96-000024 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19961211 ITEM INFORMATION: Resignations of registrant's directors FILED AS OF DATE: 19961216 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOJECT MEDICAL TECHNOLOGIES INC CENTRAL INDEX KEY: 0000810084 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 931099680 STATE OF INCORPORATION: OR FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-15360 FILM NUMBER: 96681583 BUSINESS ADDRESS: STREET 1: 7620 S W BRIDGEPORT RD CITY: PORTLAND STATE: OR ZIP: 97224 BUSINESS PHONE: 5036397221 FORMER COMPANY: FORMER CONFORMED NAME: BIOJECT MEDICAL SYSTEMS LTD DATE OF NAME CHANGE: 19920703 8-K 1 FORM 8-K FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 December 11, 1996 Date of Report (Date of earliest event reported) BIOJECT MEDICAL TECHNOLOGIES INC. (Exact name of registrant as specified in its charter) Oregon 0-15360 (State or other jurisdiction (Commission File No.) of incorporation or organization) 93-1099680 (I.R.S. Employer I.D. No.) 7620 S.W. Bridgeport Road Portland, Oregon (Address of principal executive offices) 97224 (Zip Code) (503) 639-7221 (Registrant's telephone number including area code) ITEM 5. OTHER EVENTS COMPLETION OF PRIVATE PLACEMENT On December 11, 1996, the registrant completed a private placement of units, each unit consisting of one share of the registrant's common stock and a warrant to purchase one share of the registrant's common stock at an exercise price of $1.00. The registrant sold a total of 3,120,000 units for an aggregate sale price of $2,152,800 in the offering. After completion of the offering, the outstanding shares of common stock totalled 18,736,712 with an additional 3,120,000 shares of common stock issuable upon exercise of the warrants. The registrant also granted a warrant to its placement agent, Preferred Technology, Inc., to purchase 156,000 shares of common stock with an exercise price of $0.828125. The registrant has agreed to register the common stock (including shares issuable upon exercise of the warrants) for resale. ITEM 7. EXHIBITS 4.5 Form of Stock Subscription Agreement 4.6 Form of Series "D" Common Stock Purchase Warrant 4.7 Form of Series "E" Common Stock Purchase Warrant 4.8 Form of Registration Rights Agreement 4.9 Letter Agreement between the registrant and Preferred Technology, Inc. dated July 29, 1996 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. DATED this 11th day of December, 1996. BIOJECT MEDICAL TECHNOLOGIES INC. By: /s/ Peggy J. Miller ------------------------------- Vice President, Chief Financial Officer and Secretary/Treasurer EX-4.5 2 STOCK SUBSCRIPTION AGREEMENT BIOJECT MEDICAL TECHNOLOGIES INC. STOCK SUBSCRIPTION AGREEMENT The undersigned purchaser ("Purchaser") hereby irrevocably subscribes for and agrees to purchase the number of units indicated on the signature page hereto (the "Units"), each Unit consisting of one share of common stock, without par value (each a "Common Share" and collectively the "Common Shares") and one warrant to purchase one share of common stock, without par value (each a "Warrant" and collectively the "Warrants") of Bioject Medical Technologies Inc., an Oregon corporation (the "Company"), at a price per Unit of $0.69, in consideration of the aggregate purchase price (the "Purchase Price") to be transferred to the Company upon the closing of the transaction contemplated hereby. The execution by the Purchaser of this Agreement will constitute an offer by the Purchaser to the Company to subscribe for the Units. The Company's acceptance of such offer, as evidenced by the signature of its authorized officer below, will constitute an agreement between the Purchaser and the Company for the Purchaser to purchase from the Company and for the Company to issue and sell to the Purchaser the Units upon the terms and conditions contained herein. In connection with such subscription. Purchaser hereby agrees, represents and warrants as follows: 1. Agreement to Purchase; Calculation of Number of Units. Purchaser hereby subscribes for and agrees to purchase the number of Units set forth above. Simultaneously with the execution of this Agreement, the Purchaser shall pay to the Company the Purchase Price on or before December 9, 1996, by check payable to "Bioject Medical Technologies Inc." or wire transfer to "Bioject Medical Technologies Inc., Account # 160-0008-138, U.S. Bank, Tualatin Branch, Oregon, ABA #123-000-220, Telephone # 503-692- 0215", which shall be applied to payment for the Units subscribed for herein. The Company may accept or reject any subscription in whole or in part or may elect to allot to any prospective investor less than the number of Units applied for by such investor. 2. Delivery of Shares. The closing of the purchase and sale of the Units (the "Closing") will take place upon receipt of the Purchase Price by the Company. Such time and date is hereinafter referred to as the "Closing Date." At the Closing, the Company shall deliver to each Purchaser the following: (a) a share certificate (or share certificates, if requested in writing by Purchaser prior to such Closing) representing the number of Common Shares purchased, registered in the name of the Purchaser; (b) a Warrant (or Warrants, if requested in writing by Purchaser prior to such Closing) representing the right to purchase the applicable number of Common Shares, registered in the name of the Purchaser, in substantially the form attached hereto as Exhibit A, the terms of which the Purchaser hereby expressly agrees to be bound; and (c) a Registration Rights Agreement relating to the Common Shares issuable upon exercise of the Warrants and the Common Shares purchased, in substantially the form attached hereto as Exhibit B, the terms of which the Purchaser hereby expressly agrees to be bound. The Company and the Purchaser also hereby agree to execute and deliver at Closing such other documents as may be necessary or appropriate to complete such Closing. 3. Purchase Entirely for Own Account. Purchaser represents and warrants that he, she or it is purchasing the Units solely for Purchaser's own account for investment and not with a view to or for sale or distribution of the Units or any portion thereof and without any present intention of selling, offering to sell or otherwise disposing of or distributing the Common Shares or Warrants or any portion thereof in any transaction other than a transaction complying with the registration requirements of the Securities Act of 1933, as amended (the "Act"), and applicable state securities or "blue sky" laws, or pursuant to an exemption therefrom. Purchaser also represents that the entire legal and beneficial interest of the Common Shares and Warrants that he, she or it is purchasing is being purchased for, and will be held for, Purchaser's account only, and neither in whole nor in part for any other person or entity. 4. Information Concerning the Company. Purchaser acknowledges that he or she has received all such information as Purchaser deems necessary and appropriate to enable him, her or it to evaluate the financial risk inherent in making an investment in the Units, including but not limited to the following documents filed by the Company with the Securities and Exchange Commission: (a) Annual Report to Shareholders for the fiscal year ended March 31, 1996; (b) Annual Report on Form 10-K for the fiscal year ended March 31, 1996; (c) Quarterly Reports on Form 10-Q for the periods ended June 30, 1996 and September 30, 1996; and (d) Proxy Statement dated August 9, 1996 (collectively the "Disclosure Documents") and the documents and materials submitted therewith, which include a description of the risks inherent in an investment in the Company. Purchaser further acknowledges that Purchaser has received satisfactory and complete information concerning the business and financial condition of the Company in response to all inquiries in respect thereof. 5. Economic Risk and Suitability. Purchaser represents and warrants as follows: (a) Purchaser realizes that Purchaser's purchase of the Units involves a high degree of risk and will be a highly speculative investment, and that he, she or it is able, without impairing Purchaser's financial condition, to hold the Common Shares and Warrants for an indefinite period of time. (b) Purchaser recognizes that the Company has been operating at a net loss since inception, that there is no assurance of future profitable operations and that investment in the Company involves substantial risks, and that the Purchaser has taken full cognizance of and understands all of the risks factors related to the purchase of the Units. (c) Purchaser has carefully considered and has, to the extent Purchaser believes such discussion necessary, discussed with Purchaser's professional legal, tax and financial advisors the suitability of an investment in the Company for the particular tax and financial situation of Purchaser and that Purchaser and/or Purchaser's advisors have determined that the Units are a suitable investment for Purchaser. (d) The financial condition and investment of Purchaser are such that he, she or it is in a financial position to hold the Common Shares and Warrants for an indefinite period of time and to bear the economic risk of, and withstand a complete loss of, the Purchase Price. (e) Purchaser alone, or with the assistance of professional advisors, has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of Purchaser's purchase of the Units, or has a pre-existing personal or business relationship with the Company or the Company's placement agent for this offering, or any of their officers, directors, or controlling persons of a duration and nature that enables the undersigned to be aware of the character, business acumen and general business and financial circumstances of the Company or such other person. (f) Purchaser has carefully read the Disclosure Documents and the documents and materials submitted therewith, and the Company has made available to Purchaser or Purchaser's advisors all information and documents requested by Purchaser relating to investment in the Units, and has provided answers to Purchaser's satisfaction to all of Purchaser's questions concerning the Company and the Offering. (g) If Purchaser is a partnership, trust, corporation or other entity: (1) it was not organized for the purpose of acquiring the Units (or all of its equity owners are "accredited investors" as defined in Section 9 below); (2) it has the power and authority to execute and comply with the terms of this Agreement and the person executing said documents on its behalf has the necessary power to do so; (3) its principal place of business and principal office are located within the state set forth in its address below; and (4) if Purchaser is a partnership, trust, corporation or other entity and is not an "accredited investor" as defined in Section 9 below, then all of its trustees, partners and/or shareholders, whichever the case may be, are bona fide residents of said state. (h) Purchaser understands that except with respect to the Registration Rights Agreement, neither the Company nor any of its officers or directors has any obligation to register the securities underlying the Units or the Units under any federal or state securities act or law. (i) Purchaser has relied solely upon the Disclosure Documents and the documents and materials submitted therewith, advice of his or her representatives, if any, and independent investigations made by the Purchaser and/or his or her purchaser representatives, if any, in making the decision to purchase the Units subscribed for herein and acknowledges that no representations or agreements other than those set forth in the Disclosure Documents or Section 10 hereof have been made to the Purchaser in respect thereto. (j) All information which the Purchaser has provided concerning Purchaser himself, herself or itself is correct and complete as of the date set forth below, and if there should be any material change in such information prior to the acceptance of this subscription for the Units, he, she or it will immediately provide such information to the Company. (k) Purchaser confirms that Purchaser has received no general solicitation or general advertisement and has attended no seminar or meeting (whose attendees have been invited by any general solicitation or general advertisement) and has received no advertisement in any newspaper, magazine, or similar media, broadcast on television or radio regarding the offering of the Units. (l) If Purchaser is a natural person, Purchaser is at least 21 years of age and is a citizen of the United States residing at the address indicated below. 6. Restricted Securities. Purchaser acknowledges that the Company has hereby disclosed to Purchaser in writing: (a) The Units, Warrants and Common Shares (including Common Shares issuable upon exercise of the Warrants) that Purchaser is purchasing have not been registered under the Securities Act of 1933 (the "Act"), and such securities must be held indefinitely unless a transfer of them is subsequently registered under the Act or an exemption from such registration is available; and (b) The Company will make a notation in its records of the above described restrictions on transfer and of the legend described below. 7. Legend. Purchaser agrees that all of the Warrants and the certificates representing the Common Shares (including any Common Shares issuable upon exercise of the Warrants) shall have endorsed thereon a legend to the following effect: "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF SHAREHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT." 8. Further Limitations on Disposition. Without in any way limiting its representations set forth above, Purchaser further agrees that it shall in no event make any disposition of all or any portion of the Warrants or Common Shares that Purchaser is purchasing (including any Common Shares issuable upon exercise of the Warrants) unless: (a) There is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance with said registration statement; or (b) (i) Purchaser shall have notified the Company of the proposed disposition and shall have furnished the Company with a reasonably detailed statement of the circumstances surrounding the proposed disposition; (ii) Purchaser shall have furnished the Company with an opinion of his or her counsel to the effect that such disposition will not require registration under the Act; and (iii) such opinion shall be in form and substance reasonably acceptable to counsel for the Company and the Company shall have advised Purchaser of such acceptance. 9. Offering Limited to Accredited Investors, Residence. This offering is limited to subscribers who are "accredited investors," as defined in Securities and Exchange Commission Rule 501. An "accredited investor" is one who meets any of the requirements set forth below. In order to establish the qualification of Purchaser to invest in the Units, the information below must be supplied. Purchaser represents and warrants that Purchaser falls within the category (or categories) marked. PLEASE INDICATE EACH CATEGORY OF ACCREDITED INVESTOR THAT YOU, PURCHASER, SATISFY, BY PLACING AN "X" ON THE APPROPRIATE LINE BELOW. _____ Category 1. A bank, as defined in Section 3(a)(2) of the Act, whether acting in its individual or fiduciary capacity; or _____ Category 2. A savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Act, whether acting in its individual or fiduciary capacity; or _____ Category 3. A broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934; or _____ Category 4. An insurance company as defined in Section 2(13) of the Act; or _____ Category 5. An investment company registered under the Investment Company Act of 1940; or _____ Category 6. A business development company as defined in Section 2(a) (48) of the Investment Company Act of 1940; or _____ Category 7. A small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; or _____ Category 8. A plan established and maintained by a state, its political subdivision or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, with assets in excess of $5,000,000; or _____ Category 9. An employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 in which the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company or registered investment advisor, or an employee benefit plan with total assets in excess of $5,000,000 or, if a self-directed plan, the investment decisions are made solely by persons who are accredited investors; or _____ Category 10. A private business development company as defined in Section 202(a) (22) or the Investment Advisors Act of 1940; or _____ Category 11. An organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, a Massachusetts or similar business trust, or a partnership, not formed for the specific purpose of acquiring the Shares, with total assets in excess of $5,000,000; or _____ Category 12. A director, executive officer or general partner of the Company; or _____ Category 13. A natural person whose individual net worth, or joint net worth with that person's spouse, at the time of this purchase exceeds $1,000,000; or _____ Category 14. A natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year; or _____ Category 15. A trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in SEC Rule 506(b)(2)(ii); or _____ Category 16. An entity in which all of the equity owners are accredited investors. 10. Understandings. Purchaser understands, acknowledges and agrees with the Company as follows: (a) Except as set forth in paragraph 1 above, the Purchaser hereby acknowledges and agrees that the subscription hereunder is irrevocable by the undersigned, that, except as required by law and except to the extent any of the Disclosure Documents or the material submitted therewith contain any misrepresentation of a material fact or omit to state a fact necessary in order to make the statements made therein not misleading, the undersigned is not entitled to cancel, terminate or revoke this Subscription Agreement or any agreements of the undersigned hereunder and that this Subscription Agreement and such other agreements shall survive the death or disability of the undersigned and shall be binding upon and inure to the benefit of the parties and their heirs, executors, administrators, successors, legal representatives and permitted assigns. If the undersigned is more than one person, the obligations of the undersigned hereunder shall be joint and several and the agreements, representations, warranties and acknowledgments herein contained shall be deemed to be made by and be binding upon each such person and his/her heirs, executors, administrators, successors, legal representatives and permitted assigns. (b) No Federal or state agency has made any finding or determination as to the accuracy or adequacy of the Disclosure Documents or the documents and materials submitted therewith or as to the fairness of the terms of this offering for investment nor any recommendation or endorsement of the Units. (c) This offering is intended to be exempt from registration under the Act by virtue of Section 4(2) of the Act and the provisions of Regulation D, thereunder, which is in part dependent upon the truth, completeness and accuracy of the statements made by the undersigned herein. (d) There is no public or other market for the Units or the Warrants and no such public or other market may ever develop. The Warrants and the Common Shares (including any Common Shares issuable upon exercise of the Warrants) are "restricted securities" under the Act. There can be no assurance that the undersigned will be able to sell or dispose of the Units, the Warrants or the Common Shares (including any Common Shares issuable upon exercise of the Warrants). It is understood that in order not to jeopardize this offering's exempt status under Section 4(2) of the Act and Regulation D, any transferee may, at a minimum, be required to fulfill the investor suitability requirements thereunder. (e) The Company has retained a placement agent for this offering. In consideration for its services, the placement agent will receive from the Company (i) a selling commission equal to 5% of the Purchase Price, (ii) all reasonable out-of-pocket expenses incurred in connection with the placement agent's role in this private placement, and (iii) warrants exercisable for five years to purchase a number of shares of common stock of the Company equal to 5% of the Common Shares issued as a result of the placement agent's efforts in this private placement at a price equal to the average of the bid and asked prices for shares of the Company's common stock as quoted by the Nasdaq National Market on the Closing Date. (f) The representations, warranties and agreements of the undersigned contained herein and in any other writing delivered in connection with the transactions contemplated hereby shall be true and correct in all respects on and as of the date of the sale of the Units as if made on and as of such date and shall survive the execution and delivery of this Subscription Agreement and the purchase of the Units. (g) THE UNITS (INCLUDING THE SHARES OF COMMON STOCK AND WARRANTS CONTAINED THEREIN) MAY NOT BE TRANSFERRED, RESOLD OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. PURCHASERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. The Company represents and warrants as follows: (h) The Company's authorized capital stock consists of 100 million shares of common stock, without par value, of which 15,616,712 shares are currently outstanding, and 10 million shares of preferred stock, without par value, of which no shares are outstanding. (i) The Common Shares have been duly authorized, and, when issued, will be validly issued, fully paid and nonassessable shares of common stock of the Company. (j) During the period the Warrants are outstanding, the Company will reserve adequate number of its authorized and unissued shares of common stock to be issued upon the exercise of the Warrants, and which have been duly authorized, and, upon issuance and receipt of payment therefore in accordance with the terms of the Warrants, will constitute duly authorized, validly issued, fully paid and nonassessable shares of common stock of the Company. (k) The Company has the requisite power and authority, as a corporation, to execute, enter into, and perform its obligations under the Warrants, the Registration Rights Agreement and this Agreement. All corporate action on the part of the Company and its Board of Directors necessary for the authorization, execution and delivery of the Warrants, the Registration Rights Agreement and this Agreement by the Company and the performance of the Company's obligations thereunder has been taken. To the extent stated therein, the Warrants, the Registration Rights Agreement and this Agreement are legal, valid and binding contracts of the Company, enforceable in accordance with their terms, except as such enforceability may be subject to or affected by (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, or (b) the effect of general principles of equity, whether applied by a court of law or in equity, in respect of performance and enforcement of the Warrants, the Registration Rights Agreement and this Agreement. (l) The Disclosure Documents and the material submitted therewith to the Purchaser do not contain any misrepresentation of a material fact or omit to state a material fact necessary in order to make the statements made therein not misleading. 11. Miscellaneous. (a) On or after the date of this Agreement, each of the parties shall, at the request of the other, furnish, execute and deliver such documents and instruments and take such other action as the requesting party shall reasonably require as necessary or desirable to carry out the transactions contemplated herein. (b) This Agreement, including all matters of construction, validity and performance, shall be governed by and construed and enforced in accordance with the laws of the State of Oregon, as applied to contracts made, executed and to be fully performed in such state by citizens of such state, without regard to its conflict of law rules. The parties hereto agree that the exclusive jurisdictions and venues for any action brought between the parties under this Agreement shall be the state and federal courts sitting in either Multnomah County, Oregon, or New York County, New York and each of the parties hereby agrees and submits itself to the exclusive jurisdiction and venue of such courts for such purpose. (c) This Agreement, the Warrant, and the Registration Rights Agreement comprise the entire agreement between the parties. It may be changed only by further written agreement, signed by both parties. It supersedes and merges within it all prior agreements or understandings between the parties, whether written or oral. In interpreting or construing this Agreement, the fact that one or the other of the parties may have drafted this Agreement or any provision shall not be given any weight or relevance. Date: ____________________, 1996. __________________________ $_______________________________ Number of Units purchased Aggregate Purchase Price __________________________ ________________________________ Signature Name - Typed or Printed ________________________________ Title (if applicable) ______________________________________________________________________________ Address __________________________ ______________________________ Telephone Number Social Security Number, if any Manner in Which Title is to be Held. State precisely the name or names in which the Common Shares and the Warrants are to be registered and whether the Common Shares and the Warrants are to be held as joint tenants with right of survivorship, as tenants in common, individually or otherwise: _____________________________________________ _____________________________________________ ACCEPTANCE The foregoing Stock Subscription Agreement and the consideration reflected therein are hereby accepted. DATE: __________________________, 1996. BIOJECT MEDICAL TECHNOLOGIES INC. By ______________________________________ Its ______________________________________ EX-4.6 3 SERIES D COMMON STOCK PURCHASE WARRANT THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF WARRANTHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT. SERIES "D" COMMON STOCK PURCHASE WARRANT Bioject Medical Technologies Inc. THIS CERTIFIES that for good and valuable consideration received, __________________________, a(n) __________________ or registered assigns, is entitled, upon the terms and subject to the conditions hereinafter set forth, to acquire from Bioject Medical Technologies Inc., an Oregon corporation (the "Corporation") up to ____________ fully paid and nonassessable shares of common stock, without par value, of the Corporation ("Warrant Stock") at a purchase price per share (the "Exercise Price") of $1.00 1. Term of Warrant Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or from time to time part, at any time on or after the date hereof and at or prior to 11:59 p.m., Pacific Standard Time, on December 9, 2001 (the "Expiration Time"). Notwithstanding the foregoing, at any time after one year from the date of this Warrant, the Corporation shall have the right, except as may be limited by law, other agreements or herein, to call this Warrant for exercise, in whole or in part, by mailing written notice by United States mail to the registered holder hereof if the average closing bid price for the Corporation's common stock, as quoted by the Nasdaq National Market or any other established over-the-counter quotation service, is equal to or greater than $2.625 per share, as adjusted pursuant to Section 11 hereof, for any consecutive period of twenty trading days ending five business days prior to the date of notice of redemption. In such event, this Warrant shall expire and cease to be exercisable at 11:59 p.m. Pacific Standard Time, of the thirtieth day after the date of mailing of the notice. 2. Exercise of Warrant The purchase rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time and from time to time at or prior to the Expiration Time by the surrender of this Warrant and the Notice of Exercise form attached hereto duly executed to the office of the Corporation at 7620 S.W. Bridgeport Road, Portland, Oregon 97224 (or such other office or agency of the Corporation as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Corporation), and upon payment of the Exercise Price for the shares thereby purchased (by cash or by check or bank draft payable to the order of the Corporation or by cancellation of indebtedness of the Corporation to the holder hereof, if any, at the time of exercise in an amount equal to the purchase price of the shares thereby purchased); whereupon the holder of this Warrant shall be entitled to receive from the Corporation a stock certificate in proper form representing the number of shares of Warrant Stock so purchased. 3. Issuance of Shares; No Fractional Shares of Scrip Certificates for shares purchased hereunder shall be delivered to the holder hereof by the Corporation's transfer agent at the Corporation's expense within a reasonable time after the date on which this Warrant shall have been exercised in accordance with the terms hereof. Each certificate so delivered shall be in such denominations as may be requested by the holder hereof and shall be registered in the name of such holder or, subject to applicable laws, other name as shall be requested by such holder. If, upon exercise of this Warrant, fewer than all of the shares of Warrant Stock evidenced by this Warrant are purchased prior to the Expiration Time, one or more new warrants substantially in the form of, and on the terms in, this Warrant will be issued for the remaining number of shares of Warrant Stock not purchased upon exercise of this Warrant. The Corporation hereby represents and warrants that all shares of Warrant Stock which may be issued upon the exercise of this Warrant will, upon such exercise, be duly and validly authorized and issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issuance thereof (other than liens or charges created by or imposed upon the holder of the Warrant Stock). The Corporation agrees that the shares so issued shall be and be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered for exercise in accordance with the terms hereof. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon the exercise of this Warrant, an amount equal to such fraction multiplied by the then current price at which each share may be purchased hereunder shall be paid in cash to the holder of this Warrant. 4. Charges, Taxes and Expenses Issuance of certificates for shares of Warrant Stock upon the exercise of this Warrant shall be made without charge to the holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Corporation, and such certificates shall be issued in the name of the holder of this Warrant or in such name or names as may be directed by the holder of this Warrant; provided, however, that in the event certificates for shares of Warrant Stock are to be issued in a name other than the name of the holder of this Warrant, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the holder hereof. 5. No Rights as Shareholders This Warrant does not entitle the holder hereof to any voting rights or other rights as a shareholder of the Corporation prior to the exercise hereof. 6. Registration Rights This Warrant is a Series "D" Warrant identified in the Registration Rights Agreement dated as of December 9, 1996 between the Corporation and the parties listed on the signature pages thereto. A transferee of this Warrant may become a "Holder" as defined in such agreement upon compliance with the requirements of such agreement. 7. Exchange and Registry of Warrant This Warrant is exchangeable, upon the surrender hereof by the registered holder at the above-mentioned office or agency of the Corporation, for a new Warrant of like tenor and dated as of such exchange. The Corporation shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Corporation, and the Corporation shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry. 8. Loss, Theft, Destruction or Mutilation of Warrant Upon receipt by the Corporation of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction of indemnity or security reasonably satisfactory to it, and upon reimbursement to the Corporation of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Corporation will make and deliver a new Warrant of like tenor and dated as of such cancellation, in lieu of this Warrant. 9. Saturdays, Sundays and Holidays If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday. 10. Merger, Sale of Assets, Etc. If at any time the Corporation proposes to merge or consolidate with or into any other corporation, effect any reorganization, or sell or convey all or substantially all of its assets to any other entity, then, as a condition of such reorganization, consolidation, merger, sale or conveyance, the Corporation or its successor, as the case may be, shall enter into a supplemental agreement to make lawful and adequate provision whereby the holder shall have the right to receive, upon exercise of the Warrant, the kind and amount of equity securities which would have been received upon such reorganization, consolidation, merger, sale or conveyance by a holder of a number of shares of common stock equal to the number of shares issuable upon exercise of the Warrant immediately prior to such reorganization, consolidation, merger, sale or conveyance. If the property to be received upon such reorganization, consolidation, merger, sale or conveyance is not equity securities, the Corporation shall give the holder of this Warrant fifteen (15) business days prior written notice of the proposed effective date of such transaction, and if this Warrant has not been exercised by or on the effective date of such transaction, it shall terminate. 11. Subdivision, Combination, Reclassification, Conversion, Etc. If the Corporation at any time shall, by subdivision, combination, reclassification of securities or otherwise, change the Warrant Stock into the same or a different number of securities of any class or classes, this Warrant shall thereafter entitle the holder to acquire such number and kind of securities as would have been issuable in respect of the Warrant Stock (or other securities which were subject to the purchase rights under this Warrant immediately prior to such subdivision, combination, reclassification or other change) as the result of such change if this Warrant had been exercised in full for cash immediately prior to such change. The Exercise Price hereunder shall be adjusted if and to the extent necessary to reflect such change. If the Warrant Stock or other securities issuable upon exercise hereof are subdivided or combined into a greater or smaller number of shares of such security, the number of shares issuable hereunder shall be proportionately increased or decreased, as the case may be, and the Exercise Price shall be proportionately reduced or increased, as the case may be, in both cases according to the ratio which the total number of shares of such security to be outstanding immediately after such even bears to the total number of shares of such security outstanding immediately prior to such event. The Corporation shall give the holder prompt written notice of any change in the type of securities issuable hereunder, any adjustment of the Exercise Price for the securities issuable hereunder, and any increase or decrease in the number of shares issuable hereunder. 12. Transferability; Compliance with Securities Laws (a) This Warrant may not be transferred or assigned in whole or in part without compliance with all applicable federal and state securities laws by the transferor and transferee (including the delivery of investment representation letters and legal opinions reasonably satisfactory to the Corporation, if requested by the Corporation). Subject such restrictions, prior to the Expiration Time, this Warrant and all rights hereunder are transferable by the holder hereof, in whole or in part, at the office or agency of the Corporation referred to in Section 1 hereof. Any such transfer shall be made in person or by the holder's duly authorized attorney, upon surrender of this Warrant together with the Assignment Form attached hereto properly endorsed. (b) The Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the Warrant Stock issuable upon exercise hereof are being acquired solely for the holder's own account and not as a nominee for any other party, and for investment, and that the holder will not offer, sell or otherwise dispose of this Warrant or any shares of Warrant Stock to be issued upon exercise hereof except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Upon exercise of this Warrant, the holder shall, if requested by the Corporation, confirm in writing, in a form satisfactory to the Corporation, that the shares of Warrant Stock so purchased are being acquired solely for holder's own account and not as a nominee for any other party, for investment, and not with a view toward distribution or resale. (c) Except as contemplated in the Registration Rights Agreement, the Warrant Stock has not been and will not be registered under the Securities Act of 1933, as amended, and this Warrant may not be exercised except by (i) the original purchaser of this Warrant from the Corporation or (ii) an "accredited investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended. Each certificate representing the Warrant Stock or other securities issued in respect of the Warrant Stock upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable securities laws): THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF SHAREHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT. 13. Representations and Warranties The Corporation hereby represents and warrants to the holder hereof that: (a) during the period this Warrant is outstanding, the Corporation will reserve from its authorized and unissued common stock a sufficient number of shares to provide for the issuance of Warrant Stock upon the exercise of this Warrant; (b) the issuance of this Warrant shall constitute full authority to the Corporation's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the shares of Warrant Stock issuable upon exercise of this Warrant; (c) the Corporation has all requisite legal and corporate power to execute and deliver this Warrant, to sell and issue the Warrant Stock hereunder, to issue the common stock issuable upon exercise of the Warrant Stock and to carry out and perform its obligations under the terms of this Warrant; and (d) all corporate action on the part of the Corporation, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Warrant by the Corporation, the authorization, sale, issuance and delivery of the Warrant Stock, the grant of registration rights as provided herein and the performance of the Corporation's obligations hereunder has been taken; (e) the Warrant Stock, when issued in compliance with the provisions of this Warrant and the Corporation's Articles of Incorporation (as they may be amended from time to time (the "Articles")), will be validly issued, fully paid and nonassessable, and free of all taxes, liens or encumbrances with respect to the issue thereof, and will be issued in compliance with all applicable federal and state securities laws; and (f) the issuance of the Warrant Stock will not be subject to any preemptive rights, rights of first refusal or similar rights. 14. Corporation The Corporation will not, by amendment of its Articles or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holder of the Warrant against impairment. 15. Governing Law This Warrant shall be governed by and construed in accordance with the laws of the State of Oregon. IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by its duly authorized officers. Dated: _________________________, 1996 BIOJECT MEDICAL TECHNOLOGIES INC. By: ________________________________ Name: Peggy J. Miller Title: Vice President, Chief Financial Officer & Secretary NOTICE OF EXERCISE To: Bioject Medical Technologies Inc. (1) [Please check one] _____ The undersigned hereby elects to purchase ________ shares of common stock of Bioject Medical Technologies Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price in full, together with all applicable transfer taxes, if any. or _____ The undersigned hereby irrevocably commits to purchase _________ shares of common stock of Bioject Medical Technologies Inc. pursuant to the terms of the attached Warrant, and commits to tender payment of the purchase price in full, together with all applicable transfer taxes, if any, subject only to the conditions that (i) a Form S-3 registration statement pursuant to which the shares of common stock will be registered for resale is filed and becomes effective and (ii) the average of the bid and asked prices for shares of the common stock as quoted by the Nasdaq National Market for the day before the date of effectiveness is greater than $1.00. (2) In exercising this Warrant, the undersigned hereby confirms and acknowledges that the shares of common stock to be issued upon exercise hereof are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell or otherwise dispose of any such shares of common stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. (3) Please issue a certificate or certificates representing said shares of common stock in the name of the undersigned or in such other name as is specified below: _________________________ (Name) _________________________ (Address) (3) The undersigned represents that (a) he, she or it is the original purchaser from the Corporation of the attached Warrant or an "accredited investor" within the meaning of Rule 501(a) under the Securities Act of 1933, as amended and (b) the aforesaid shares of common stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. _____________________________ _____________________________ (Date) (Signature) ASSIGNMENT FORM (To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.) FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the within Warrant, with respect to the number of shares of common stock of Bioject Medical Technologies Inc. set forth below: Name of Assignee Address No. of Shares and does hereby irrevocably constitute and appoint Attorney ________________ to make such transfer on the books of Bioject Medical Technologies Inc., maintained for the purpose, with full power of substitution in the premises. The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Warrant and the shares of stock to be issued upon exercise hereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any shares of stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Further, the Assignee shall, if requested by the Corporation, confirm in writing, in a form satisfactory to the Corporation, that the shares of stock so purchased are being acquired for investment and not with a view toward distribution or resale. Dated: _____________________________________________ Holder's Signature: ________________________________ Holder's Address: _________________________________________________________ _________________________________________________________ Guaranteed Signature: NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever, and must be guaranteed by a bank or trust company. Officers of corporations and those action in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. EX-4.7 4 SERIES E COMMON STOCK PURCHASE WARRANT THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE LAWS, AND NO INTEREST THEREIN MAY BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS COVERING ANY SUCH TRANSACTION OR SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND LAWS, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF WARRANTHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT. SERIES "E" COMMON STOCK PURCHASE WARRANT Bioject Medical Technologies Inc. THIS CERTIFIES that for good and valuable consideration received, Preferred Technology, Inc., a corporation or registered assigns, is entitled, upon the terms and subject to the conditions hereinafter set forth, to acquire from Bioject Medical Technologies Inc., an Oregon corporation (the "Corporation") up to _________ fully paid and nonassessable shares of common stock, without par value, of the Corporation ("Warrant Stock") at a purchase price per share (the "Exercise Price") of $0.828125. 1. Term of Warrant Subject to the terms and conditions set forth herein, this Warrant shall be exercisable, in whole or from time to time part, at any time on or after the date hereof and at or prior to 11:59 p.m., Pacific Standard Time, on December 9, 2001 (the "Expiration Time"). Notwithstanding the foregoing, at any time after one year from the date of this Warrant, the Corporation shall have the right, except as may be limited by law, other agreements or herein, to call this Warrant for exercise, in whole or in part, by mailing written notice by United States mail to the registered holder hereof if the average closing bid price for the Corporation's common stock, as quoted by the Nasdaq National Market or any other established over-the-counter quotation service, is equal to or greater than $2.625 per share, as adjusted pursuant to Section 11 hereof, for any consecutive period of twenty trading days ending five business days prior to the date of notice of redemption. In such event, this Warrant shall expire and cease to be exercisable at 11:59 p.m. Pacific Standard Time, of the thirtieth day after the date of mailing of the notice. 2. Exercise of Warrant The purchase rights represented by this Warrant are exercisable by the registered holder hereof, in whole or in part, at any time and from time to time at or prior to the Expiration Time by the surrender of this Warrant and the Notice of Exercise form attached hereto duly executed to the office of the Corporation at 7620 S.W. Bridgeport Road, Portland, Oregon 97224 (or such other office or agency of the Corporation as it may designate by notice in writing to the registered holder hereof at the address of such holder appearing on the books of the Corporation), and upon payment of the Exercise Price for the shares thereby purchased (by cash or by check or bank draft payable to the order of the Corporation or by cancellation of indebtedness of the Corporation to the holder hereof, if any, at the time of exercise in an amount equal to the purchase price of the shares thereby purchased); whereupon the holder of this Warrant shall be entitled to receive from the Corporation a stock certificate in proper form representing the number of shares of Warrant Stock so purchased. 3. Issuance of Shares; No Fractional Shares of Scrip Certificates for shares purchased hereunder shall be delivered to the holder hereof by the Corporation's transfer agent at the Corporation's expense within a reasonable time after the date on which this Warrant shall have been exercised in accordance with the terms hereof. Each certificate so delivered shall be in such denominations as may be requested by the holder hereof and shall be registered in the name of such holder or, subject to applicable laws, other name as shall be requested by such holder. If, upon exercise of this Warrant, fewer than all of the shares of Warrant Stock evidenced by this Warrant are purchased prior to the Expiration Time, one or more new warrants substantially in the form of, and on the terms in, this Warrant will be issued for the remaining number of shares of Warrant Stock not purchased upon exercise of this Warrant. The Corporation hereby represents and warrants that all shares of Warrant Stock which may be issued upon the exercise of this Warrant will, upon such exercise, be duly and validly authorized and issued, fully paid and nonassessable and free from all taxes, liens and charges in respect of the issuance thereof (other than liens or charges created by or imposed upon the holder of the Warrant Stock). The Corporation agrees that the shares so issued shall be and be deemed to be issued to such holder as the record owner of such shares as of the close of business on the date on which this Warrant shall have been surrendered for exercise in accordance with the terms hereof. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. With respect to any fraction of a share called for upon the exercise of this Warrant, an amount equal to such fraction multiplied by the then current price at which each share may be purchased hereunder shall be paid in cash to the holder of this Warrant. 4. Charges, Taxes and Expenses Issuance of certificates for shares of Warrant Stock upon the exercise of this Warrant shall be made without charge to the holder hereof for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Corporation, and such certificates shall be issued in the name of the holder of this Warrant or in such name or names as may be directed by the holder of this Warrant; provided, however, that in the event certificates for shares of Warrant Stock are to be issued in a name other than the name of the holder of this Warrant, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the holder hereof. 5. No Rights as Shareholders This Warrant does not entitle the holder hereof to any voting rights or other rights as a shareholder of the Corporation prior to the exercise hereof. 6. Registration Rights This Warrant is a Series "E" Warrant identified in the Registration Rights Agreement dated as of December 9, 1996 between the Corporation and the parties listed on the signature pages thereto. A transferee of this Warrant may become a "Holder" as defined in such agreement upon compliance with the requirements of such agreement. 7. Exchange and Registry of Warrant This Warrant is exchangeable, upon the surrender hereof by the registered holder at the above-mentioned office or agency of the Corporation, for a new Warrant of like tenor and dated as of such exchange. The Corporation shall maintain at the above-mentioned office or agency a registry showing the name and address of the registered holder of this Warrant. This Warrant may be surrendered for exchange, transfer or exercise, in accordance with its terms, at such office or agency of the Corporation, and the Corporation shall be entitled to rely in all respects, prior to written notice to the contrary, upon such registry. 8. Loss, Theft, Destruction or Mutilation of Warrant Upon receipt by the Corporation of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and in case of loss, theft or destruction of indemnity or security reasonably satisfactory to it, and upon reimbursement to the Corporation of all reasonable expenses incidental thereto, and upon surrender and cancellation of this Warrant, if mutilated, the Corporation will make and deliver a new Warrant of like tenor and dated as of such cancellation, in lieu of this Warrant. 9. Saturdays, Sundays and Holidays If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall be a Saturday or a Sunday or shall be a legal holiday, then such action may be taken or such right may be exercised on the next succeeding day not a Saturday, Sunday or legal holiday. 10. Merger, Sale of Assets, Etc. If at any time the Corporation proposes to merge or consolidate with or into any other corporation, effect any reorganization, or sell or convey all or substantially all of its assets to any other entity, then, as a condition of such reorganization, consolidation, merger, sale or conveyance, the Corporation or its successor, as the case may be, shall enter into a supplemental agreement to make lawful and adequate provision whereby the holder shall have the right to receive, upon exercise of the Warrant, the kind and amount of equity securities which would have been received upon such reorganization, consolidation, merger, sale or conveyance by a holder of a number of shares of common stock equal to the number of shares issuable upon exercise of the Warrant immediately prior to such reorganization, consolidation, merger, sale or conveyance. If the property to be received upon such reorganization, consolidation, merger, sale or conveyance is not equity securities, the Corporation shall give the holder of this Warrant fifteen (15) business days prior written notice of the proposed effective date of such transaction, and if this Warrant has not been exercised by or on the effective date of such transaction, it shall terminate. 11. Subdivision, Combination, Reclassification, Conversion, Etc. If the Corporation at any time shall, by subdivision, combination, reclassification of securities or otherwise, change the Warrant Stock into the same or a different number of securities of any class or classes, this Warrant shall thereafter entitle the holder to acquire such number and kind of securities as would have been issuable in respect of the Warrant Stock (or other securities which were subject to the purchase rights under this Warrant immediately prior to such subdivision, combination, reclassification or other change) as the result of such change if this Warrant had been exercised in full for cash immediately prior to such change. The Exercise Price hereunder shall be adjusted if and to the extent necessary to reflect such change. If the Warrant Stock or other securities issuable upon exercise hereof are subdivided or combined into a greater or smaller number of shares of such security, the number of shares issuable hereunder shall be proportionately increased or decreased, as the case may be, and the Exercise Price shall be proportionately reduced or increased, as the case may be, in both cases according to the ratio which the total number of shares of such security to be outstanding immediately after such even bears to the total number of shares of such security outstanding immediately prior to such event. The Corporation shall give the holder prompt written notice of any change in the type of securities issuable hereunder, any adjustment of the Exercise Price for the securities issuable hereunder, and any increase or decrease in the number of shares issuable hereunder. 12. Transferability; Compliance with Securities Laws (a) This Warrant may not be transferred or assigned in whole or in part without compliance with all applicable federal and state securities laws by the transferor and transferee (including the delivery of investment representation letters and legal opinions reasonably satisfactory to the Corporation, if requested by the Corporation). Subject such restrictions, prior to the Expiration Time, this Warrant and all rights hereunder are transferable by the holder hereof, in whole or in part, at the office or agency of the Corporation referred to in Section 1 hereof. Any such transfer shall be made in person or by the holder's duly authorized attorney, upon surrender of this Warrant together with the Assignment Form attached hereto properly endorsed. (b) The Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant and the Warrant Stock issuable upon exercise hereof are being acquired solely for the holder's own account and not as a nominee for any other party, and for investment, and that the holder will not offer, sell or otherwise dispose of this Warrant or any shares of Warrant Stock to be issued upon exercise hereof except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Upon exercise of this Warrant, the holder shall, if requested by the Corporation, confirm in writing, in a form satisfactory to the Corporation, that the shares of Warrant Stock so purchased are being acquired solely for holder's own account and not as a nominee for any other party, for investment, and not with a view toward distribution or resale. (c) Except as contemplated in the Registration Rights Agreement, the Warrant Stock has not been and will not be registered under the Securities Act of 1933, as amended, and this Warrant may not be exercised except by (i) the original purchaser of this Warrant from the Corporation or (ii) an "accredited investor" as defined in Rule 501(a) under the Securities Act of 1933, as amended. Each certificate representing the Warrant Stock or other securities issued in respect of the Warrant Stock upon any stock split, stock dividend, recapitalization, merger, consolidation or similar event, shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required under applicable securities laws): THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT THE OPTION OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF SHAREHOLDER'S COUNSEL, IN FORM ACCEPTABLE TO THE CORPORATION, THAT NO VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED TRANSFER OR ASSIGNMENT. 13. Representations and Warranties The Corporation hereby represents and warrants to the holder hereof that: (a) during the period this Warrant is outstanding, the Corporation will reserve from its authorized and unissued common stock a sufficient number of shares to provide for the issuance of Warrant Stock upon the exercise of this Warrant; (b) the issuance of this Warrant shall constitute full authority to the Corporation's officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the shares of Warrant Stock issuable upon exercise of this Warrant; (c) the Corporation has all requisite legal and corporate power to execute and deliver this Warrant, to sell and issue the Warrant Stock hereunder, to issue the common stock issuable upon exercise of the Warrant Stock and to carry out and perform its obligations under the terms of this Warrant; and (d) all corporate action on the part of the Corporation, its directors and shareholders necessary for the authorization, execution, delivery and performance of this Warrant by the Corporation, the authorization, sale, issuance and delivery of the Warrant Stock, the grant of registration rights as provided herein and the performance of the Corporation's obligations hereunder has been taken; (e) the Warrant Stock, when issued in compliance with the provisions of this Warrant and the Corporation's Articles of Incorporation (as they may be amended from time to time (the "Articles")), will be validly issued, fully paid and nonassessable, and free of all taxes, liens or encumbrances with respect to the issue thereof, and will be issued in compliance with all applicable federal and state securities laws; and (f) the issuance of the Warrant Stock will not be subject to any preemptive rights, rights of first refusal or similar rights. 14. Corporation The Corporation will not, by amendment of its Articles or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holder of the Warrant against impairment. 15. Governing Law This Warrant shall be governed by and construed in accordance with the laws of the State of Oregon. IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed by its duly authorized officers. Dated: _________________________, 1996 BIOJECT MEDICAL TECHNOLOGIES INC. By: ________________________________ Name: Peggy J. Miller Title: Vice President, Chief Financial Officer & Secretary NOTICE OF EXERCISE To: Bioject Medical Technologies Inc. (1) [Please check one] _____ The undersigned hereby elects to purchase ________ shares of common stock of Bioject Medical Technologies Inc. pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price in full, together with all applicable transfer taxes, if any. or _____ The undersigned hereby irrevocably commits to purchase _________ shares of common stock of Bioject Medical Technologies Inc. pursuant to the terms of the attached Warrant, and commits to tender payment of the purchase price in full, together with all applicable transfer taxes, if any, subject only to the conditions that (i) a Form S-3 registration statement pursuant to which the shares of common stock will be registered for resale is filed and becomes effective and (ii) the average of the bid and asked prices for shares of the common stock as quoted by the Nasdaq National Market for the day before the date of effectiveness is greater than $1.00. (2) In exercising this Warrant, the undersigned hereby confirms and acknowledges that the shares of common stock to be issued upon exercise hereof are being acquired solely for the account of the undersigned and not as a nominee for any other party, and for investment, and that the undersigned will not offer, sell or otherwise dispose of any such shares of common stock except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. (3) Please issue a certificate or certificates representing said shares of common stock in the name of the undersigned or in such other name as is specified below: _________________________ (Name) _________________________ (Address) (3) The undersigned represents that (a) he, she or it is the original purchaser from the Corporation of the attached Warrant or an "accredited investor" within the meaning of Rule 501(a) under the Securities Act of 1933, as amended and (b) the aforesaid shares of common stock are being acquired for the account of the undersigned for investment and not with a view to, or for resale in connection with, the distribution thereof and that the undersigned has no present intention of distributing or reselling such shares. _____________________________ _____________________________ (Date) (Signature) ASSIGNMENT FORM (To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.) FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the Assignee named below all of the rights of the undersigned under the within Warrant, with respect to the number of shares of common stock of Bioject Medical Technologies Inc. set forth below: Name of Assignee Address No. of Shares and does hereby irrevocably constitute and appoint Attorney ________________ to make such transfer on the books of Bioject Medical Technologies Inc., maintained for the purpose, with full power of substitution in the premises. The undersigned also represents that, by assignment hereof, the Assignee acknowledges that this Warrant and the shares of stock to be issued upon exercise hereof are being acquired for investment and that the Assignee will not offer, sell or otherwise dispose of this Warrant or any shares of stock to be issued upon exercise hereof except under circumstances which will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws. Further, the Assignee shall, if requested by the Corporation, confirm in writing, in a form satisfactory to the Corporation, that the shares of stock so purchased are being acquired for investment and not with a view toward distribution or resale. Dated: _____________________________________________ Holder's Signature: ________________________________ Holder's Address: _________________________________________________________ _________________________________________________________ Guaranteed Signature: NOTE: The signature to this Assignment Form must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever, and must be guaranteed by a bank or trust company. Officers of corporations and those action in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant. EX-4.8 5 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT This Agreement is made as of December 9, 1996 by and among BIOJECT MEDICAL TECHNOLOGIES INC., an Oregon corporation (the "Corporation"), and the investors listed on Schedule A hereto (the "Investors"). RECITALS A. Simultaneously herewith, the Corporation is selling to the Investors and the Investors are purchasing from the Corporation an aggregate of 3,120,000 shares of the Corporation's Common Stock and warrants to purchase up to an aggregate of 3,120,000 shares of the Corporation's Common Stock (the "Warrants") pursuant to the Stock Subscription Agreement dated December 9, 1996 (the "Subscription Agreement"). B. It is a condition precedent to the Subscription Agreement that the parties enter into this Agreement. AGREEMENT NOW, THEREFORE, it is hereby agreed as follows: 1. Certain Definitions As used in this Agreement, the following terms shall have the following respective meanings: "Binding Commitment" shall mean an executed Notice of Exercise of a Warrant by a Holder constituting an irrevocable and binding commitment to purchase the common stock issuable upon exercise of the Warrant, subject only to the conditions that (i) a Form S-3 registration statement pursuant to which the Warrant Shares will be registered for resale is filed and becomes effective and (ii) the average of the bid and asked prices for shares of the Corporation's common stock as quoted by the Nasdaq National Market for the day before the date of effectiveness is greater than $1.00. "Common Stock" shall mean shares of common stock, without par value, of the Corporation. "Commission" shall mean the Securities and Exchange Commission. "Holder" shall mean the holders of Registrable Securities and any person holding such securities to whom the rights under this Agreement have been transferred in accordance with Section 2.8 hereof. "Initiating Holders" shall mean any Holder or Holders of the Registrable Securities initiating a registration request pursuant to Sections 2.2(b) and 2.2(c). "Registrable Securities" means (i) all shares of the Corporation's Common Stock acquired pursuant to the Subscription Agreement ("Subscription Shares"), or acquired upon exercise of the Series "D" Warrants or Series "E" Warrants, ("Warrant Shares")(collectively, the "Shares"), (ii) any Common Stock or other securities of the Corporation issued or issuable with respect to, or in exchange for or in replacement of the Shares or such additional shares upon any stock split, stock dividend, recapitalization, or similar event; provided, however, that shares of Common Stock or other securities shall only be treated as Registrable Securities for the purposes of Section 2 hereof if and so long as they have not been sold pursuant to Rule 144 under the Securities Act or pursuant to an effective Registration Statement under the Securities Act, or otherwise to or through a broker or dealer or underwriter in a public distribution or a public securities transaction. The terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement. "Registration Expenses" shall mean all expenses, except as otherwise stated below, incurred by the Corporation in complying with Section 2 hereof, including, without limitation, all registration, qualification and filing fees, printing expenses, escrow fees, fees and disbursements of counsel for the Corporation and one special counsel to the selling Holders, blue sky fees and expenses, fees to Nasdaq to list the Shares or American Stock Transfer and Trust Company to issue the Shares, and the expense of any special audits incident to or required by any such registration. "Securities Act" shall mean the Securities Act of 1933, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Selling Expenses" shall mean all underwriting discounts, selling commissions and stock transfer taxes applicable to the securities registered by the selling Holders and any other expenses that are not Registration Expenses and that are incurred by the selling Holders. "Subscription Shares" are defined under "Registrable Securities." "Warrant Shares" are defined under "Registrable Securities." 2. Registration Rights 2.1 Company Registration (a) Notice of Registration. If at any time or from time to time the Corporation shall determine to register any of its securities, either for its own account or the account of a security holder or holders, other than a registration relating solely to employee benefit plans or a registration relating solely to a Commission Rule 145 transaction, the Corporation will: (i) promptly give to each Holder written notice thereof; and (ii) subject to Section 2.1(b), include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests made within 20 days after receipt of such written notice from the Corporation, by any Holder. (b) Underwriting. If the registration of which the Corporation gives notice is for a registered public offering involving an underwriting, the Corporation shall so advise the Holders as a part of the written notice given pursuant to Section 2.1(a) hereof. In such event the right of any Holder to registration pursuant to this Section 2.1 shall be conditioned upon such Holder's participation in such underwriting and the inclusion of Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their securities through such underwriting shall (together with the Corporation) enter into an underwriting agreement in customary form with the managing underwriter selected for such underwriting by the Corporation. Notwithstanding any other provision of this Section 2.1, if the managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the Registrable Securities and other securities to be distributed through such underwriting, for the account of the requesting Holders to 20% of the total number of shares to be distributed. The Corporation shall so advise all Holders distributing their securities through such underwriting of such limitations and, subject to the foregoing rights of the Investors, the number of shares of Registrable Securities, if any, that may be included in the registration (and underwriting, if any) shall be allocated among all Holders in proportion, as nearly as practicable, to the respective amounts of Registrable Securities requested by such Holders to be included in such Registration Statement. To facilitate the allocation of shares in accordance with the above provisions, the Corporation may round the number of shares allocated to any Holder or holder to the nearest 100 shares. (c) Right to Terminate Registration. The Corporation shall have the right to terminate or withdraw any registration initiated by it under this Section 2.1 prior to the effectiveness of such registration whether or not any Holder has elected to include securities in such registration. The Registration Expenses of such withdrawn registration shall be borne by the Corporation in accordance with Section 2.3 hereof. 2.2 Demand Registration (a) The Corporation shall use its best efforts to file within fourteen (14) days of the date of this Agreement a registration statement on Form S-3 for the resale of the Shares and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be obligated to prepare, file and cause to be effective only one registration statement pursuant to this Section 2.2(a). Further, the Corporation shall use its best efforts to cause such registration to be a non-underwritten shelf registration pursuant to Rule 415 under the Securities Act and to cause such shelf registration to be maintained effective until the earlier of the completion of the distribution contemplated thereby or such time as all the Shares may be freely transferred in accordance with Rule 144 of the Securities Act. (b) If the Commission will not allow the Corporation to register the Warrant Shares on Form S-3 for the resale of such Warrant Shares prior to the receipt of Binding Commitments from the Holders, any Initiating Holder or Holders of an aggregate of at least a majority of the Warrant Shares for which Binding Commitments have been received by the Corporation, may request registration of such Holder(s)' Warrant Shares when Binding Commitments to exercise 1,590,000 Warrants (representing approximately 51% of the original number of Warrants) have been received by the Corporation. Upon receipt of such request (specifying that it is being made pursuant to this Section 2.2(b)), the Corporation shall promptly prepare and file a registration statement on Form S-3 under the Securities Act covering the Warrant Shares that are the subject of such request and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. The Corporation shall be obligated to prepare, file and cause to be effective only four registration statements pursuant to this Section 2.2(b). Upon the receipt of such request, the Corporation shall: (i) promptly give to each remaining Holder written notice that a registration is to be effected; and (ii) include in such registration (and any related qualification under blue sky laws or other compliance) all the Warrant Shares specified in a written request or requests made within 10 days after such written notice was sent by the Corporation, by any Holder. However, no Warrant Shares shall be included in such registration if a Binding Commitment has not been received by the Corporation for such Warrant Shares. Further, the Corporation shall use all reasonable efforts to cause such registration to be a non-underwritten shelf registration pursuant to Rule 415 under the Securities Act and to cause such shelf registration to be maintained effective until the earlier of the completion of the distribution contemplated thereby or such time as all the Shares may be freely transferred in accordance with Rule 144 of the Securities Act. (c) If the Commission will not allow the Corporation to register the Warrant Shares on Form S-3 for the resale of such Warrant Shares prior to the receipt of Binding Commitments from the Holders, any Initiating Holder or Holders of an aggregate of at least a majority of the Warrant Shares, may request registration of such Holder(s)' Warrant Shares when the Corporation has called the Warrants for exercise, in whole or in part, in accordance with Section 1 of the Series "D" Warrants or Series "E" Warrants. Upon receipt of such request (specifying that it is being made pursuant to this Section 2.2(c)), the Corporation shall promptly prepare and file a registration statement on Form S-3 under the Securities Act covering the Warrant Shares that are the subject of such request and shall use its best efforts to cause such registration statement to become effective as expeditiously as reasonably practical. Upon the receipt of such request, the Corporation shall: (i) promptly give to each remaining Holder written notice that a registration is to be effected; and (ii) include in such registration (and any related qualification under blue sky laws or other compliance) all the Warrant Shares specified in a written request or requests made within 10 days after such written notice was sent by the Corporation, by any Holder. Further, the Corporation shall use all reasonable efforts to cause such registration to be a non-underwritten shelf registration pursuant to Rule 415 under the Securities Act and to cause such shelf registration to be maintained effective until the earlier of the completion of the distribution contemplated thereby or such time as all the Shares may be freely transferred in accordance with Rule 144 of the Securities Act. (d) Notwithstanding the foregoing, the Corporation shall not be obligated to take any action pursuant to this Section 2.2: (i) in any particular jurisdiction in which the Corporation would be required to execute a general consent to service of process in effecting such registration, qualification or compliance unless the Corporation is already subject to service in such jurisdiction and except as may be required by the Securities Act; or (ii) if the Corporation shall furnish to the Holders a certificate signed by the Chairman or President of the Corporation stating that the Corporation has reasonably determined that it should postpone for a specified period of time not to exceed 120 days in the case of clause (A) below, or 45 days in the case of clause (B) below (each, a "Blackout Period"), any action pursuant to this Section, including, without limitation, the preparation and/or filing of a registration statement or prospectus or any amendments or supplements to any registration statement or prospectus, because any such filing would (A) materially impede, delay or otherwise interfere with an offer or sale of securities, acquisition, corporate reorganization or other significant transaction involving the Corporation, or (B) require disclosure of material information (other than an event described in clause (A) above) which, if disclosed at that time, would be materially harmful to the interests of the Corporation and its shareholders. Upon delivery of such a certificate to the Holders by the Corporation, each of the Holders covenants that he shall (X) keep the fact of the notice strictly confidential, (Y) promptly halt any offer, sale, trading or transfer by him and his affiliates of any Common Stock for the duration of the Blackout Period set forth in the certificate or until the Blackout Period is earlier terminated by the Corporation and (Z) promptly halt any use or distribution of the registration statement and prospectus by him and his affiliates for the duration of the Blackout Period or until such Blackout Period is earlier terminated by the Corporation. The Corporation shall not be entitled to deliver a certificate and impose a Blackout Period pursuant to Clause A more than once in any twelve month period. 2.3 Expenses of Registration All Registration Expenses incurred in connection with registration pursuant to Sections 2.1 and 2.2 shall be borne by the Corporation, except that Registration Expenses incurred in connection with the third and fourth registrations pursuant to Section 2.2(b) shall be borne by the Holders of securities included in such registration pro rata. All Selling Expenses relating to securities registered on behalf of the Holders shall be borne by the Holders of securities included in such registration pro rata, severally and not jointly, among each other on the basis of the number of shares so registered. 2.4 Registration Procedures In the case of each registration effected by the Corporation pursuant to this Section 2, the Corporation will keep each Holder advised in writing as to the initiation of each registration and as to the completion thereof. At its expense the Corporation will: (a) Prepare and file with the Commission a registration statement with respect to such securities and use its best efforts to cause such registration statement to become and remain effective until the earlier of the completion of the distribution described in the registration statement or such time as all the Shares may be freely transferred in accordance with Rule 144 of Securities Act; (b) Prepare and file with the Commission during the period specified in Section 2.4(a) such amendments and supplements to such registration statement and the prospectus used in connection with such registration statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement. (c) Furnish to the Holders participating in such registration and to the underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as the Holders and such underwriters may reasonably request in order to facilitate the public offering of such securities; (d) Furnish, at the request of any Holder requesting registration of Registrable Securities at the time such securities are delivered to the underwriters (if any) for sale in connection with a registration pursuant to this Section 2, (i) an opinion, dated such date, of the counsel representing the Corporation for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters and to the Holders requesting registration of Registrable Securities and (ii) a letter dated the date of commencement of the offering and a "bring-down" letter dated as of the closing date of such offering, from the independent accountants of the Corporation, in form and substance as is customarily given by independent accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders requesting registration of Registrable Securities. 2.5 Indemnification (a) The Corporation will indemnify each Holder, each of its affiliates, officers, directors, partners, internal legal counsel, employees and agents and each person controlling such Holder within the meaning of Section 15 of the Securities Act, with respect to which registration has been effected pursuant to this Section 2, and each underwriter, if any, and each person who controls any underwriter within the meaning of Section 15 of the Securities Act, against all expenses, claims, losses, damages or liabilities (or actions in respect thereof), including any of the foregoing incurred in settlement of any litigation, commenced or threatened, arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, prospectus, offering circular or other document, or any amendment or supplement thereto, incident to any such registration, qualification or compliance, or based on any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading, or any violation by the Corporation of the Securities Act or any other applicable federal and state securities laws or any rules or regulations promulgated thereunder in connection with any such registration, qualification or compliance, and the Corporation will reimburse each such Holder, each of its affiliate officers, directors, partners, internal legal counsel, employees and agents and each person controlling such Holder, each such underwriter and each person who controls any such underwriter, for any legal and any other expenses reasonably incurred in connection with investigating, preparing or defending any such claim, loss, damage, liability or action, provided that the Corporation will not be liable in any such case to the extent that any such claim, loss, damage, liability or expense arises out of or is based on any untrue statement or omission or alleged untrue statement or omission, made in reliance upon and in conformity with written information furnished to the Corporation by such Holder, controlling person or underwriter and stated to be specifically for use therein. (b) Each Holder will, if Registrable Securities held by such Holder are included in the securities as to which such registration, qualification or compliance is being effected, indemnify the Corporation, each of its directors, officers, affiliates, employees and agents, each underwriter, if any, of the Corporation's securities covered by such a registration statement, each person who controls the Corporation or such underwriter within the meaning of Section 15 of the Securities Act, and each other Holder, each of its officers, directors, affiliates, partners, internal legal counsel, employees and agents and each person controlling such Holder within the meaning of Section 15 of the Securities Act, against all claims, losses, damages and liabilities (or actions in respect thereof) arising out of or based on any untrue statement (or alleged untrue statement) of a material fact contained in any such registration statement, prospectus, offering circular or other document, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse the Corporation, such Holders, and such directors, officers, affiliates, partners, internal legal counsel, employees and agents underwriters or control persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in each case to the extent, but only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, prospectus, offering circular or other document in reliance upon and in conformity with written information furnished to the Corporation by such Holder and stated to be specifically for use therein Notwithstanding the foregoing, the liability of each Holder under this subsection (b) shall be limited to the proportion of any such loss, claim, damage, liability or expense which is equal to the proportion that the public offering price of the shares sold by such Holder under such registration statement bears to the total public offering price of all securities sold thereunder, but not to exceed the proceeds received by such Holder from the sale of Registrable Securities covered by such registration statement. (c) Each party entitled to indemnification under this Section 2.5 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld), and the Indemnified Party may participate in such defense at such party's expense, and provided further that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2 unless the failure to give such notice is materially prejudicial to an Indemnifying Party's ability to defend such action and provided further, that the Indemnifying Party shall not assume the defense for matters as to which there is a conflict of interest or separate and different defenses but shall bear the expense of such defense nevertheless. Each Indemnified Party shall furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect to such claim or litigation. Notwithstanding the other provisions of this Agreement, no Indemnifying Party shall be obligated to indemnify any Indemnified Party for amounts paid by the Indemnified Party in settlement of any loss, claim, damage, liability or action if such settlement is effected without the consent of the Indemnifying Party (which consent has not been unreasonably withheld). (d) If the indemnification provided for paragraphs (a) through (c) of this Section 2.5 is unavailable or insufficient to hold harmless an Indemnified Party under such paragraphs in respect of any losses, claims, damages, liabilities, expenses or actions in respect thereof referred to therein, then each Indemnifying Party shall in lieu of indemnifying such Indemnified Party contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or actions in such proportion as appropriate to reflect the relative fault of the Corporation, the underwriters, and the Holder of such Registrable Securities, respectively, in connection with the statements or omissions which resulted in such losses, claims, damage, liabilities, expenses or actions in respect thereof as well as any other relevant equitable considerations, including the failure to give any notice under paragraph (c). The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact relates to information supplied by the Corporation, on the one hand, or the underwriters or the Holders of such Registrable Securities, on the other, and to the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Corporation and each of the Holders agrees that it would not be just and equitable if contributions pursuant to this paragraph were determined by pro rata allocation (even if all of the Holders of such Registrable Securities were treated as one entity for such purpose) or by any other method of allocation which did not take account of the equitable considerations referred to above in this paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or action in respect thereof, referred to above in this paragraph, shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this paragraph, no Holder shall be required to contribute any amount in excess of the lesser of (i) the proportion that the public offering price of shares sold by such Holder under such registration statement bears to the total public offering price of all securities sold thereunder, but not to exceed the proceeds received by such Holder for the sale of Registrable Securities covered by such registration statement and (ii) the amount of any damages which they would have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission. No person guilty of fraudulent misrepresentations (within the meaning of Section 11(f) of the Securities Act), shall be entitled to contribution from any person who is not guilty of such fraudulent misrepresentation (e) Notwithstanding the foregoing, to the extent that the provisions on indemnification and contribution contained in the underwriting agreement (if any) entered into in connection with an underwritten public offering of the Registrable Securities are in conflict with the foregoing provisions, the provisions in such underwriting agreement shall control. 2.6 Information by Holder The Holder or Holders of Registrable Securities included in any registration shall furnish to the Corporation such information regarding such Holder or Holders, the Registrable Securities held by them and the distribution proposed by such Holder or Holders as the Corporation may reasonably request in writing and as shall be required in connection with any registration, qualification or compliance referred to in this Section 2. 2.7 Rule 144 Reporting With a view to making available the benefits of certain rules and regulations of the Commission which may at any time permit the sale of the Registrable Securities to the public without registration, the Corporation agrees to use its best efforts to: (a) At all times make and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act; (b) File with the Commission in a timely manner all reports and other documents required of the Corporation under the Securities Act and the Securities Exchange Act of 1934, as amended; (c) So long as a Holder owns any Registrable Securities to furnish to the Holder forthwith upon request a written statement by the Corporation as to its compliance with the reporting requirements of said Rule 144, and of the Securities Act and the Securities Exchange Act of 1934, a copy of the most recent annual or quarterly report of the Corporation, and such other reports and documents of the Corporation and other information in the possession of or reasonably obtainable by the Corporation as a Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any such securities without registration. 2.8 Transfer of Registration Rights The rights to cause the Corporation to register securities granted Holders under this Section 2 may be assigned (a) to a transferee or assignee in connection with any transfer or assignment of Registrable Securities by a Holder of not less than 25,000 shares of Registrable Securities (as presently constituted and subject to subsequent adjustments for stock splits, stock dividends, reverse stock splits, and the like), or (b) to the estate of a Holder, provided in each case that such transfer may otherwise be effected in accordance with applicable securities laws and written notice of the transfer is given to the Corporation at the time of or within a reasonable time after such transfer or assignment, stating the name and address of the transferee or assignee and identifying the Registrable Securities with respect to which such registration rights are being transferred or assigned, and provided, further, that the transferee or assignee of such rights agrees in writing to be bound by the terms of this Agreement as if such transferee were a party hereto. 2.9 Standoff Agreement Each Holder agrees, in connection with registered public offerings of the Corporation's securities for the account of the Corporation, upon request of the Corporation or the underwriters managing any underwritten offering of the Corporation's securities, not to sell, make any short sale of or otherwise dispose of any Registrable Securities (other than those included in the registration) without the prior written consent of the Corporation or such underwriters, as the case may be, for such period of time (not to exceed 120 days in the case of other public offerings) from the effective date of such registration as may be requested by the underwriters, provided, that the officers and directors of the Corporation who own stock of the Corporation also agree to such restrictions. 2.10 Termination of Registration Rights The rights granted under this Section 2 shall terminate on the earlier of December 9, 2001 or such time as the aggregate number of Registrable Securities held by all Holders represents less than one percent of the outstanding shares of the Corporation's Common Stock. 2.11 Delay of Registration No Holder or Holders shall have any right to take any action to restrain, enjoin, or otherwise delay any registration as a result of any controversy that might arise with respect to the interpretation or implementation of this Section 2. 2.12 Use of Form S-3 With a view to maintaining its eligibility to use Form S-3, the Corporation agrees to use its best efforts to file with the Commission in a timely manner (i) all the material required to be filed pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii) all reports and other documents required to be filed by the Corporation under the Securities Act and the Securities Exchange Act of 1934, as amended; provided, however, that there can be no assurance that the Corporation will remain eligible for use of Form S-3 or that any Form S-3 filed by the Corporation with respect to the Registrable Securities will be declared effective. 3. Miscellaneous 3.1 Waivers and Amendments With the written consent of both the Corporation and Holders of a majority of outstanding Registrable Securities originally acquired by the Investors then held by Holders (voting together as a class), the obligations of the Corporation and the rights of such Holders of Registrable Securities under this Agreement may be waived (either generally or in a particular instance, and either for a specified period of time or indefinitely), and with the same consent the Corporation, when authorized by resolution of its Board of Directors, may enter into a supplementary agreement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement. Neither this Agreement nor any provisions hereof may be changed, waived, discharged or terminated orally, but only by a signed statement in writing. 3.2 Governing Law This Agreement shall be governed in all respects by the laws of the State of Oregon as such laws are applied to agreements between Oregon residents entered into and to be performed entirely within Oregon. 3.3 Successors and Assigns Except as otherwise expressly provided herein, the Provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. 3.4 Entire Agreement This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof. 3.5 Notices All notices and other communications required or permitted hereunder shall be effective upon receipt and shall be in writing and may be delivered in person, by telecopy, electronic mail, overnight delivery service or U.S. mail, in which event it may be mailed by first class, postage prepaid, addressed (a) if to one of the Investors, at the address set forth on the signature page(s) to the Subscription Agreement, or at such other address as the Holder shall have furnished to the Corporation, or (b) if to the Corporation, at 7620 SW Bridgeport Road, Portland, Oregon 97224, Attention: President, or at such other address as shall have furnished to the Holders in writing. Notwithstanding the foregoing, all notices and communications to addresses outside the United States shall be given by telecopier and confirmed in writing sent by overnight or two-day courier service. 3.6 Titles and Subtitles The titles of the paragraphs and subparagraphs of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. 3.7 Litigation; Prevailing Party In the event of any litigation between the Corporation and the Investors with regard to this Agreement, the prevailing party shall be entitled to reimbursement from the nonprevailing party for all reasonable fees and expenses of counsel for the prevailing party. 3.8 Nominees Securities registered in the name of a nominee for a Holder shall, for purposes of this Agreement, be treated as being owned by such Holder. 3.9 Counterparts This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. Delivery of a signed counterpart by and between telephone facsimile transmission shall between effective as delivery of a manually signed counterpart of this Agreement. IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date set forth above. BIOJECT MEDICAL TECHNOLOGIES INC. By: ___________________________________ Name: Peggy J. Miller Title: Vice President, Chief Financial Officer & Secretary INVESTOR: _____________________________ ________________________________________ Signature ________________________________________ Print Name ________________________________________ Print Title EX-4.9 6 LTR AGMT BETWEEN BIOJECT & PREFERRED TECHNOLOGY July 29, 1996 PRIVATE AND CONFIDENTIAL Ms. Peggy J. Miller Vice President and Chief Financial Officer Bioject Medical Technologies Inc. 7620 SW Bridgeport Road Portland, Oregon 97224 Dear Peggy, This letter ("Letter" or "Agreement") confirms the understanding and agreement between Bioject Medical Technologies Inc. (the "Company") and Preferred Technology, Inc. ("PTI"), as follows: 1. The Company hereby engages PTI, on an exclusive basis, as its agent for the purpose of arranging the private placement of up to 3,000,000 units consisting of shares of common stock and warrants (the "Units") (hereinafter referred to as the "Private Placement Transaction"). PTI's agency on behalf of the Company shall continue until the completion of the Private Placement Transaction, unless earlier terminated pursuant to paragraph 6 below. 2. PTI hereby accepts the engagement described in paragraph 1 and, in that connection, agrees to: (a) Keep and maintain all material non-public information which PTI receives or develops concerning the Company confidential and disclose that information only as contemplated by this Agreement or required by law. Notwithstanding the foregoing, PTI may disclose non-public information to its agents, employees, advisors, and to institutional financial investors and lenders whenever PTI determines that such disclosure is necessary to provide the services contemplated herein, provided that prior to such disclosure such parties either agree in writing to be bound by appropriate conditions regarding confidentiality or, if professional advisors, are otherwise bound by obligations or ethics of their professions to confidentiality. (b) Review the Company's operations and advise the Company regarding its capital structure, the valuation of its business, and the financing alternatives reasonably available to the Company in the marketplace. (c) Assist the Company, in compliance with applicable securities law, in preparing descriptive materials concerning the Company and the proposed Private Placement Transaction, which materials shall not be made available to or used in discussions with prospective parties to any such transaction until the materials and their use for that purpose and that party have been approved in advance by the Company and by PTI. (d) Structure and privately place, on a best efforts basis, all financing required to complete the Private Placement Transaction on such terms and conditions as are acceptable to the Company. 3. The Company shall treat PTI's advice as confidential except to the extent that disclosure is required by law. 4. The Company shall: (a) Furnish to PTI the names of all parties with which the Company has had discussions concerning a possible Private Placement Transaction within three months prior to this Agreement and promptly advise PTI of any contacts for same subsequent to the date of this letter, all of which shall be deemed to be "Covered Parties" as defined in Paragraph 6 below. The firm Dominick and Dominick shall be excluded as a Covered Party. (b) Make available to PTI all information concerning the business, assets, operations and financial condition of the Company which PTI reasonably requests in connection with the performance of its obligations hereunder. PTI may rely upon the accuracy and completeness of such information without independent verification. 5. The Company may refuse to discuss or negotiate the Private Placement Transaction with any party for any reason whatsoever and may terminate negotiations with any party at any time. During the period that PTI is engaged by the Company, the Company shall not directly or indirectly initiate any discussions or other contacts, or solicit any inquires or indications of interest, concerning a Private Placement Transaction or other financing involving the issuance of Company securities (other than in connection with employee or consultant stock purchase option or benefit plans) without giving notice to PTI. 6. Subject to the provisions of paragraphs 7 through 9, which shall survive any termination of this Agreement, the Company may terminate PTI's engagement hereunder at any time without cause by giving PTI at least 10 days prior written notice of termination. Within 10 days after the effective date of any such termination, PTI shall deliver to the Company a list of all parties with which to PTI's knowledge such parties, together with all other parties with which the Company, without giving notice to PTI, has had contacts or discussions concerning the Private Placement Transaction prior to receipt of the notice of termination ("Covered Parties") and shall return to the Company any and all copies of confidential information provided to PTI by the Company. 7. The Company agrees to compensate PTI as follows: If the Private Placement Transaction is completed during the term of this Agreement or with a Covered Party within 6 months following the termination of this Agreement pursuant to paragraph 6 above, then the Company shall pay PTI, as compensation for its services, a financial advisory and private placement fee, as follows: (i) 5% of the gross proceeds of the sale of the Units, payable in cash; and (ii) a warrant to purchase a number of common stock shares equal to 5% of the number of Units the Company issued as a result of PTI's efforts in the Private Placement Transaction. Such warrant shall be exercisable for five years at a price equal to the fair market value of the Company's common stock on the date of close. Any warrant issued pursuant to this paragraph 7 shall include provisions for such antidilution, and registration rights as may be customary in transactions of this nature. 8. The Company agrees to reimburse PTI for all reasonable out-of-pocket expenses incurred in connection with PTI's role hereunder. Expenditures exceeding $100 shall require the Company's approval which shall not be unreasonably withheld or delayed. Out-of-pocket expenses shall include all travel-related, telephone, tele-facsimile, duplication, printing, courier, database research and other similar expenses, but shall include only those third party professional fees that PTI is expressly authorized by the Company to incur. 9. PTI represents, warrants and agrees that: (a) PTI is and at the time of any offer or sale in connection with the Private Placement Transaction will be duly registered as a broker/dealer pursuant to the Securities Exchange Act of 1934 and under the laws of the State of California and is and will be similarly registered or exempt from registration in each other state in which it places Units and in which such registration is required. PTI is and at each such time will be a member in good standing of the National Association of Securities Dealers, Inc. ("NASD"), and (b) PTI's participation in the Private Placement Transaction will comply with all federal and applicable state laws regulating the conduct of business by brokers and dealers and, during the course of its services under this agreement PTI will not make any untrue statement of a material fact, or omit to state a material fact required to be stated by PTI or necessary to make any statement by PTI not misleading (it being understood that the statements (other than statements concerning PTI) made in the disclosure documents provided by the Company or in reliance on information provided by the Company are deemed to be made by the Company and not by PTI). PTI will offer Units only to "accredited investors" as defined in Regulation D under the Act and will not offer the Units by means of any general solicitation or advertising within the meaning of Regulation D under the act, and (c) PTI agrees not to offer or sell Units in any state without the prior consent of the Company, and (d) The parties hereby agree to be bound by the Indemnification Agreement attached hereto as Exhibit A. 10. If the Private Placement Transaction is completed pursuant to this Agreement, PTI may at its expense and with prior notice to and the Company's approval (which approval shall not be unreasonably withheld or delayed), place an announcement in such newspapers and periodicals as it may choose stating that PTI has acted as financial advisor and private placement agent for the Company in such transaction. 11. The Company represents that there are no brokers, representatives or other persons that have an interest in any compensation which may be due PTI from the transactions contemplated Hereunder. 12. This Agreement shall be binding upon and inure to the benefit of the parties and their lawful successors in interest. This Agreement represents the entire understanding between the parties, and all prior discussions and negotiations are superseded, merged into, and voided by it. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon without reference to that state's conflict of law principles. If the foregoing correctly sets forth the understanding and agreement between PTI and the Company, please so indicate in the space provided below. Sincerely, PREFERRED TECHNOLOGY, INC. By: /s/ Edward M. Elliott -------------------------- AGREED: By: /s/ Peggy J. Miller ----------------------- Date: July 29, 1996 ----------------------- EXHIBIT A In consideration of the agreement of Preferred Technology, Inc. ("PTI") to act on behalf of Bioject Medical Technologies Inc. (the "Company") pursuant to the attached Engagement Letter, dated July 25, 1996 (the "Engagement Letter"), the Company agrees to indemnify and hold harmless PTI, its affiliates, and each of their respective partners, directors, officers, agents, consultants, employees and controlling persons (within the meaning of Section 20 of the Securities Exchange Act of 1934 (the "Act")) (PTI and each such other person or entity are hereinafter referred to as a "PTI Indemnity"), from and against any losses, claims, damages, expenses and liabilities or actions in respect thereof (collectively, "Losses") as they may be incurred (including all legal fees and other expenses incurred in connection with investigating, preparing, defending, paying settling or compromising any Losses, whether or not in connection with any pending or threatened litigation in which any PTI Indemnitee is a named party) to which any of them may become subject (including in any settlement effected with the Company's consent) as a result of any misstatement of a material fact by the Company or any of its representatives (other than PTI), or an omission to state any fact necessary to make the statements made by the Company or any such person not misleading, except to the extent such Losses arise out of any misstatement of a material fact in disclosure documents concerning PTI or a misstatement of a material fact by PTI in soliciting investors, in the Private Placement Transaction, which misstatement was not contained in the disclosure documents furnished by the Company or any of its representatives to PTI, or an omission by PTI in such solicitation to state a fact concerning PTI or a fact of which PTI has been made aware by the Company and that is necessary to make the statements by PTI not misleading. PTI agrees to indemnify and hold harmless the Company and each of its directors, officers, employees and controlling person (within the meaning of Section 20 of the Act) (each, a "Company Indemnitee") from and against any Losses as they may be incurred (including all legal fees and other expenses in connection with investigating, preparing, defending, paying, settling or compromising any Losses) to which any of them may become subject (including any settlement effected with PTI's consent), to the extent and only to the extent such Losses arise out of a misrepresentation of a material fact in disclosure documents concerning PTI or a misstatement of material fact by PTI in soliciting investors for the Units, which misstatement was not contained in the disclosure documents furnished by the Company or made by the Company or any of its representatives to PTI, or an omission by PTI in such solicitation to state a fact concerning PTI or a fact of which PTI has been made aware by the Company or its representatives and that is necessary to make the statements by PTI not misleading. If the indemnity referred to in this Exhibit A should be, for any reason whatsoever, unenforceable, unavailable or otherwise insufficient to hold each person otherwise entitled to indemnity (an "Indemnified Person") harmless then each person who would otherwise be required to make such indemnity (an "Indemnifying Person") shall in lieu of indemnifying such Indemnified Person contribute to the amount paid or payable by such Indemnified Person as a result of the Losses for which indemnification would otherwise be made, so that each Indemnified Person ultimately bears only a portion of such Losses as is appropriate (i) to reflect the relative benefits received by each such Indemnified Person, respectively, on the one hand and the Indemnifying Person on the other hand in connection with the transaction or (ii) if the allocation on that basis is not permitted by applicable law, to reflect not only the relative benefits referred to in clause (i) of this paragraph but also the relative fault of each such Indemnified Person, respectively, and the Indemnifying Person as well as any other relevant equitable considerations: provided, however, that in no event shall the aggregate contribution of PTI to all Losses in connection with any transaction exceed the amount of the fee actually received by PTI pursuant to the Engagement Letter. The respective relative benefits received by PTI and the Company in connection with any transaction shall be deemed to be in the same proportion as the aggregate fee paid to PTI in connection with the transaction bears to the total consideration of the transaction. The relative fault of each Indemnified Person and each Indemnifying Person shall be determined by reference to, among other things, whether the actions or omissions to act were by such Indemnified Person or the each Indemnifying Person and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action or omission to act. The Company agrees that without the others prior written consent it shall not settle, compromise or consent to the entry of any judgment in pending or threatened claim, action, suit or proceeding related to the Engagement Letter unless the settlement, compromise or consent also includes an express unconditional release of all Indemnified Persons from all liability and obligations arising therefrom. The obligations of the Company referred to above shall be in addition to any rights that any PTI Indemnitee may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of any PTI Indemnitee and the Company. All capitalized terms not otherwise defined in this Exhibit shall have the meanings given them in the Engagement Letter. -----END PRIVACY-ENHANCED MESSAGE-----