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)
<PAGE>
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
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 ______________________________________
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
<PAGE>
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)
<PAGE>
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.
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
<PAGE>
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)
<PAGE>
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.
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
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.
