Exhibit 10.38
REGISTRATION RIGHTS AGREEMENT
This Agreement is made as of June ___ , 1997 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 _________
shares of the Corporation's Common Stock and warrants to purchase up to an
aggregate of _____ shares of the Corporation's Common Stock (the "Warrants")
pursuant to the Stock Subscription Agreement dated June___ , 1997 (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 $0.71.
"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 "G" 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 thirty (30) days
of the date of this Agreement a registration statement on Form S-3 for the
resale of the Subscription 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 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 for at least two (2) years.
(b) 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 _____ 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 one registration statement
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 for at least two (2) years.
(c) 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 "G" 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 for at least two (2) years.
(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. 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 for at least two (2) years or, if
earlier, until the distribution described in the registration statement has
been completed;
(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 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 officers, directors, partners, and legal counsel 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
and officers, 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 and directors, 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, 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 June
___, 2002 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____________________________