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