EXHIBIT 10.1
BIOJECT MEDICAL TECHNOLOGIES
INC.
FORM OF CONVERTIBLE NOTE
PURCHASE AND WARRANT AGREEMENT
This Convertible Note
Purchase and Warrant Agreement (the “ Agreement
”) is made as of December 5, 2007, by and between
Bioject Medical Technologies Inc. , an Oregon corporation
(the “ Company ”), and
, (“ Purchaser ”).
RECITALS
The
Company desires to issue and sell and the Purchaser desires to
purchase a convertible subordinated promissory note in
substantially the form attached to this Agreement as
Exhibit A (the “ Notes ”), which
shall be convertible on the terms stated therein into stock of the
Company. Purchasers shall also receive a warrant to purchase
additional shares of the Company pursuant to the form of warrant
attached hereto as Exhibit B . The Note, the
equity securities issuable upon conversion thereof (and any
securities issuable upon conversion of such equity securities), the
warrant and the equity securities issued upon the Purchaser’s
exercise of the warrant are collectively referred to herein as the
“ Securities .” Terms not otherwise
defined in this Agreement shall have the meaning given to them in
the Note attached hereto as Exhibit A .
AGREEMENT
In
consideration of the mutual promises contained herein and other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties to this Agreement agree as
follows:
1.
Purchase and Sale of Notes and Warrants.
(a)
Sale and Issuance of Notes. Subject to the terms and
conditions of this Agreement, each Purchaser agrees to purchase at
the Closing and the Company agrees to sell and issue to Purchaser a
Note in the principal amount of
.
The purchase price of each Note shall be equal to 100% of the
principal amount of such Note. The Note shall be convertible
into equity securities of the Company as provided for under the
Note, and the Warrant shall be exercisable for equity securities of
the Company as provided for under the Warrant.
(b)
Warrants. Upon the Closing (as defined in
Section 1(c) below), Purchaser shall receive a warrant to
purchase
shares of the Company’s common stock in the form attached
hereto as Exhibit B (the “ Warrant
”). The exercise price of the Warrant
(“ Exercise Price ”) shall be the $0.75 per
share price, subject to adjustment as set forth in the Warrant.
(c)
Closing; Delivery.
(i)
The initial purchase and sale of the Notes shall take place at the
offices of the Company, 20245 S.W. 95 th Ave., Tualatin,
OR 97062, at 1:00 p.m., on December 5, 2007 (the “
Closing ”). At Closing, the Company shall
deliver to Purchaser the Note to be purchased by Purchaser against
payment of the purchase price therefor by personal check
(acceptance by the Company is subject to receipt of readily
available funds) cashier’s check or by wire transfer to the
Company’s bank account and the duly executed Warrant and the
parties shall execute and deliver the Registration Rights Agreement
in the form attached hereto as Exhibit C (the “
Registration Rights Agreement ”).
2.
Stock Purchase Agreement.
(a)
Purchaser understands and agrees that the conversion of the Note
into equity securities of the Company may require such
Purchaser’s execution of certain agreements (in form
reasonably agreeable to a majority in interest of the Purchasers)
relating to the purchase and sale of such securities as well as
registration, information and voting rights, if any, relating to
such equity securities.
(b)
Purchaser agrees to be bound by the agreements described in
Section 2(a).
3.
Representations and Warranties of the Company. The
Company hereby represents and warrants to each Purchaser that:
(a)
Organization. The Company is a corporation duly
organized and validly existing under the laws of the State of
Oregon and has all requisite corporate power and authority to carry
on its business as now conducted and as proposed to be
conducted.
(b)
Authorization. All corporate action on the part of
the Company, its officers, directors and shareholders necessary for
the authorization, execution and delivery of this Agreement and the
authorization, sale, issuance and delivery of the Note, the
Warrant, the Registration Rights Agreement, the shares of the
Company’s capital stock issuable on conversion or exercise
thereunder, and the performance of all obligations of the Company
hereunder and thereunder, has been taken or will be taken prior to
the Closing. The shares of Common Stock issuable upon
exercise of the Warrant and pursuant to Section 4.1.1 of the
Note, upon issuance in accordance with the terms of the Warrant or
Note, as applicable, will be duly and validly issued, fully paid,
and nonassessable. The Agreement, the Registration Rights
Agreement, the Note and the Warrant, when executed and delivered by
the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with
their terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, and other laws
of general application affecting enforcement of creditors’
rights generally, as limited by laws relating to the availability
of specific performance, injunctive relief, or other equitable
remedies.
(c)
Governmental Consents. All consents, approvals,
orders or authorizations of, or registrations, qualifications,
designations, declarations or filings with, any governmental
authority, required on the part of the Company in connection with
the valid execution and delivery of this Agreement, the
Registration Rights Agreement, the offer, sale or issuance of the
Note, the Warrant, conversion of the Note, exercise of the Warrant
or the consummation of any other transaction contemplated hereby
shall have been obtained and will be effective at the Closing,
except for notices required or permitted to be filed with certain
state and federal securities commissions, which notices will be
filed on a timely basis.
(d)
Offering. Assuming the accuracy of the
representations and warranties of the Purchasers contained in
Section 4 hereof, the offer, issue and sale of the Notes and
the Warrant are and will be exempt from the registration and
prospectus delivery requirements of the Securities Act of 1933, as
amended (the “ Securities Act ”), and have been
registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification
requirements of all applicable state securities laws.
(e)
SEC Documents; Financial Statements . As of the
Closing, the Company shall have filed all reports, schedules,
forms, statements and other documents required to be filed by it
with the Securities and Exchange Commission (“ SEC
”) pursuant to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the “ 1934 Act
”) (all of the foregoing filed prior to the date hereof and
all exhibits included therein and financial statements and
schedules thereto and documents incorporated by reference therein
being hereinafter referred to as the “ SEC Documents
”). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated
thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading. As of their respective dates,
the financial statements of the Company included in the SEC
Documents complied as to form in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, during the periods
involved (except in the case of unaudited interim statements, to
the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material
