Exhibit 10.36
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 "F" COMMON STOCK PURCHASE WARRANT
Bioject Medical Technologies Inc.
THIS CERTIFIES that for good and valuable consideration received, _________,
a(n) individual 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 $0.50.
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 May 15,
2002 (the "Expiration Time"). Notwithstanding the foregoing, at any time 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 $5.00 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
The Warrant Stock purchasable upon exercise of this Warrant has not been
registered under the Securities Act of 1933 or any state securities law. The
Corporation shall have no obligation to register such Warrant Stock for resale
unless the Offering as contemplated by the Agreement between , (" "), and
the Corporation dated May 15, 1997 is completed and only on the same terms as
any registration rights for shares issuable upon exercise of warrants are
included in such Offering. The foregoing notwithstanding, any obligation
undertaken by the Corporation to register the Warrant Stock shall be limited
to the Corporation's use of its best efforts to do so, and in no event shall
the Corporation be required to file or maintain the effectiveness of a
registration statement on Form S-1 unless a Form S-1 is filed and maintained
effective with respect to shares issuable upon exercise of warrants issued in
such Offering.
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:_____________, 1997
BIOJECT MEDICAL TECHNOLOGIES INC.
By:
Name: Peggy J. Miller
Title: Vice President, Chief Financial Officer & Secretary
NOTICE OF EXERCISE
To: Bioject Medical Technologies Inc.
(1) 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
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon exercise hereof
are being acquired solely for the account of the undersigned and not as a
nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws.
(3) Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:
(Name)_______________________________________
(Address)______________________________________
(3) The undersigned represents that (a) he, she or it is the original
purchaser from the Corporation of the attached Warrant or an "accredited
investor" within the meaning of Rule 501(a) under the Securities Act of 1933,
as amended and (b) the aforesaid shares of common stock are being acquired for
the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned
has no present intention of distributing or reselling such shares.
(Date)_________________ (Signature)________________________
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights
of the undersigned under the within Warrant, with respect to the number of
shares of common stock of Bioject Medical Technologies Inc. set forth below:
Name of Assignee Address No. of Shares
_______________ ______________ _________________
and does hereby irrevocably constitute and appoint Attorney ____________ to
make such transfer on the books of Bioject Medical Technologies Inc.,
maintained for the purpose, with full power of substitution in the premises.
The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will
not offer, sell or otherwise dispose of this Warrant or any shares of stock to
be issued upon exercise hereof except under circumstances which will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws. Further, the Assignee shall, if requested by the
Corporation, confirm in writing, in a form satisfactory to the Corporation,
that the shares of stock so purchased are being acquired for investment and
not with a view toward distribution or resale.
Dated: ___________________________
Holder's Signature: _______________________
Holder's Address: ___________________________
Guaranteed Signature:________________________
NOTE: The signature to this Assignment Form must correspond with the name as
it appears on the face of the Warrant, without alteration or enlargement or
any change whatever, and must be guaranteed by a bank or trust company.
Officers of corporations and those action in a fiduciary or other
representative capacity should file proper evidence of authority to assign the
foregoing Warrant.