EXHIBIT 10.2
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 "P" COMMON STOCK PURCHASE WARRANT
BIOJECT MEDICAL TECHNOLOGIES INC.
THIS CERTIFIES that for good and valuable consideration received, Elan
International Services, Ltd., 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
3,790,000 fully paid and nonassessable shares of common stock, without par
value, of the Corporation ("Warrant Stock") at a purchase price per share (the
"Exercise Price") of $1.50.
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 June 30,
2006 (the "Expiration Time"). Notwithstanding the foregoing, the holder hereof
shall exercise this Warrant (by payment of the applicable Exercise Price (in
cash or by cancellation of indebtedness of the Corporation to the holder hereof
as provided in Section 2 of this Warrant)), (i) on the Effective Date (as
defined in the Agreement among the Company and Elan Pharmaceutical Investments,
Ltd. and Elan International Services, Ltd. dated December 12, 2001 (the
"Agreement")) for 252,666 shares of the Warrant Stock, (ii) within 30 days of
the holder's receipt of written notice from the Corporation that on the first
anniversary of the Effective Date the Market Price (as defined below) of common
stock of the Corporation (the "Common Stock") was at least $12.50 per share
(such notice to include evidence reasonably satisfactory to the holder hereof as
to the basis for the calculation of such price and to be given no later than the
fifth business day following such anniversary and in such manner as is specified
in Section 9 of the Agreement), for 252,667 shares of the Warrant Stock and
(iii) within 30 days of the holder's receipt of written notice from the
Corporation that on the second anniversary of the Effective Date the Market
Price of the Common Stock was at least $15.00 per share (such notice to include
evidence reasonably satisfactory to the holder hereof as to the basis for the
calculation of such price and to be given no later than the fifth business day
following such anniversary and in such manner as is specified in Section 9 of
the Agreement), for the remaining Warrant Stock not previously purchased
pursuant to an exercise of this Warrant; provided, however, the holder hereof is
not obligated to make any such exercise unless at such time at least one or more
registration statements is then effective pursuant to which all the Warrant
Stock issued or issuable upon exercise hereof may be publicly sold by such
holder under the Securities Act of 1933, as amended; provided, further, however,
that notwithstanding the foregoing provisions of this sentence, the holder of
this Warrant retains the right to exercise this Warrant at any time pursuant to
the first sentence of this Section 1. In the event that the holder hereof has
not exercised this Warrant for all Warrant Stock as of the close of business on
the later of (x) the fifth business day after the second anniversary of the
Effective Date if no notice pursuant to clause (iii) above has been delivered to
the holder hereof on or before such date or (y) the 30th day following receipt
by the holder hereof of any notice pursuant to clause (iii) above, as a result
of the failure of the conditions set forth in the immediately preceding
sentence, then thereafter the provisions of such sentence shall terminate and
have no further force or effect. All share amounts and prices per share in this
Section 1 shall be subject to appropriate adjustment from time to time pursuant
to Section 11 of this Warrant.
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"Market Price" means, with respect to each anniversary of the Effective
Date requiring a calculation thereof as provided above, the average of the daily
Closing Prices (as defined below) per share of the Common Stock for the 10
consecutive trading days ending on the trading day immediately preceding such
anniversary; provided, however, that in the event that the Market Price is
determined during a period following the announcement by the Corporation of (A)
a dividend or distribution of Common Stock, or (B) any subdivision, combination
or reclassification of Common Stock and prior to the expiration of 20 business
days after the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in each
such case, the Market Price shall be appropriately adjusted to reflect the
current market price per share equivalent of the Common Stock. "Closing Price"
means the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as re-ported by NASDAQ or such other principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Common Stock is listed
or admitted to trading, or any comparable system then in use or, if not so
re-ported, as reported by any New York Stock Exchange member firm reasonably
selected by the holder of this Warrant for purposes of establishing whether this
Warrant must be exercised pursuant to the second sentence of this Section 1.
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
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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. 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.
7. 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.
8. 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.
9. 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 ten (10) 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.
10. 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
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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.
11. 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) 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.
12. 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;
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(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 teens of this Warrant;
(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.
13. 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.
14. 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: _________________________, 2002
BIOJECT MEDICAL TECHNOLOGIES INC.
By:
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Name:
Title:
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