EXHIBIT 10.3
THIS NOTE, AND THE
SECURITIES ISSUABLE PURSUANT TO A CONVERSION OF THIS NOTE, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”). THIS NOTE, AND THE SECURITIES ISSUABLE
PURSUANT TO A CONVERSION OF THIS NOTE, HAVE BEEN ACQUIRED WITHOUT A
VIEW TO DISTRIBUTION AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THIS NOTE, OR FOR THE SECURITIES
ISSUABLE PURSUANT TO A CONVERSION OF THIS NOTE, AS THE CASE
MAY BE, UNDER THE ACT AND UNDER ANY APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE HOLDER (CONCURRED
IN BY LEGAL COUNSEL FOR THE CORPORATION) THAT SUCH REGISTRATION IS
NOT REQUIRED AS TO SUCH SALE OR OFFER
Form of Convertible
Subordinated Promissory Note
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$
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Tualatin, Oregon
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As
of December 5, 2007
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For
value received, Bioject Medical Technologies Inc., an Oregon
corporation (the “Company”), promises to pay to
(the “Holder”) the principal sum of
dollars
($ ),
together with interest thereon as set forth herein (this
“Note”).
The following is a
statement of the rights of the Holder and the conditions to which
this Note is subject, and to which the Holder, by the acceptance of
this Note, agrees:
1.
Payment Terms.
The unpaid
principal balance from time to time outstanding under this Note
shall bear interest at the rate of 8% per annum. The
outstanding principal balance of and accrued but unpaid interest
under this Note shall be repaid by the Company on or before
May 15, 2009 (the “Maturity Date”) unless prepaid
pursuant to the terms hereof. Except as otherwise provided
herein, both principal and interest shall be payable on the
Maturity Date in lawful money of the United States of America to
the Holder at its offices in 20245 S.W. 95 th Ave.,
Tualatin, OR 97062 (or at such other location as shall be
designated by the Holder in a written notice to the Company), in
same day funds.
2.
Events
of Default. If any of the events specified in this
Section 2 shall occur (herein individually referred to as an
“Event of Default”), the Holder of the Note may, so
long as such condition exists, declare the entire principal and
unpaid accrued interest hereon immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived:
(a)
Default in the payment of
the principal and unpaid accrued interest of this Note when due and
payable if such default is not cured by the Company within ten
(10) business days after the Holder has given the Company
written notice of such default; or
(b)
Any breach by the Company
of any representation, warranty, or covenant in this Note;
provided, that, in the event of any such breach, to the extent such
breach is susceptible to cure, such breach shall not have been
cured by the Company within ten (10) business days after
written notice to the Company of such breach; or
(c)
The Company shall
(i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) make a general
assignment for the benefit of its or any of its creditors,
(iii) be dissolved or liquidated in full or in part,
(iv) commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself
or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or consent to any such relief or to
the
appointment of or
taking possession of its property by any official in an involuntary
case or other proceeding commenced against it or (v) take any
action for the purpose of effecting any of the foregoing;
or
(d)
Proceedings for the
appointment of a receiver, trustee, liquidator or custodian of the
Company or of all or a substantial part of the property thereof, or
an involuntary case or other proceedings seeking liquidation,
reorganization or other relief with respect to the Company or the
debts thereof under any bankruptcy, insolvency or other similar law
now or hereafter in effect shall be commenced and an order for
relief entered, or such case or proceeding shall not be dismissed,
discharged or stayed within 60 days of commencement.
Notwithstanding
anything to the contrary contained herein, if any of the events
described in Sections 2(c) or (d) occur, this Note shall
be automatically accelerated and the entire principal and unpaid
accrued interest thereon shall immediately become due and payable
without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived.
3.
Prepayment.
Prior to the
Maturity Date, this Note may not be prepaid except with the written
consent of Holder.
4.
Conversion
.
4.1
Voluntary and Automatic
Conversion .
4.1.1
Holder, at his sole option
and upon giving written notice to the Company, may at any time
prior to the payment of this Note in full, convert the outstanding
principal and unpaid interest under this Note into the number of
shares of the Company’s Common Stock equal to the sum of the
outstanding principal balance of this Bridge Note plus all accrued
and unpaid interest owing under this Bridge Note, divided by $0.75
(as adjusted for stock splits, stock dividends and the like in the
same manner as the Exercise Price (as defined in the Warrant, dated
the date hereof and issued to Holder) is adjusted pursuant to such
Warrant)).
4.1.2
If a Qualified Financing
is completed on or before the Maturity Date, the outstanding
principal amount of this Note plus accrued and unpaid interest
hereunder shall automatically convert into the securities issued in
the Qualified Financing concurrently with the closing of the
transaction on the Financing Date at a conversion price per share
equal the Financing Price without any other action by
Holder.
4.1.3
For purposes of this
Section&n
