EXHIBIT
10.15
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 “EE-2” COMMON
STOCK PURCHASE WARRANT
Bioject Medical Technologies
Inc.
THIS CERTIFIES that for good and
valuable consideration received, RCC Ventures, LLC, 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
19,299 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
$1.14.
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., Eastern Standard Time, on July 25, 2010
(the “Expiration Time”).
2.
Exercise of
Warrant
(a) This Warrant may be
exercised or converted, in whole or in part, upon surrender to the
Corporation at its then principal offices in the United States of
this Warrant to be exercised, together with the form of election to
exercise attached hereto duly completed and executed, and upon
payment to the Corporation of the Exercise Price for the number of
shares of Warrant Stock in respect of which this Warrant is then
being exercised.
(b) Payment of the aggregate
Exercise Price may be made (i) in cash or by cashier’s or
bank check or (ii) by converting this Warrant through a Cashless
Exercise (as defined herein). Upon a “Cashless
Exercise” the holder shall receive Warrant Stock on a net
basis such that, without the payment of any funds, the holder shall
surrender this Warrant in exchange for the number of shares of
Warrant Stock equal to “X” (as defined below), computed
using the following formula:
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Y * (A-B)
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X
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=
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A
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Where
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X
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=
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the number of shares of Warrant Stock to be
issued to registered holder hereof.
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Y
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=
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the number of shares of Warrant Stock to be
exercised under this Warrant
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A
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=
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the Fair Market Value of one share of Warrant
Stock.
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B
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=
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the Exercise Price (as adjusted to the date of
such calculations).
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(c) For purposes of this
Warrant, the “Fair Market Value” of one share of
Warrant Stock shall be (i) if the Corporation’s common stock
(the “Common Stock”) is or becomes listed on a national
stock exchange or the Nasdaq SmallCap Market, the product of (A)
the average closing sale price reported on such exchange or market
for the 10-day period prior to the earlier of the day holder
delivers its Election of Exercise to the Corporation or the date of
determination of Fair Market Value and (B) the number of shares of
Common Stock into which a share of Warrant Stock is convertible at
the time of such exercise, or (ii) if the Common Stock is traded
over-the-counter, the product of (A) the average closing bid price
for the Common Stock over the 10-day period immediately prior to
the earlier of the day holder delivers its Election of Exercise to
the Corporation or the date of determination of Fair Market Value
and (B) the number of shares of Common Stock into which one share
of Warrant Stock is convertible at the time of such exercise.
If the Common Stock is not traded as contemplated in clauses (i) or
(ii), above, the Fair Market Value of the Corporation’s
Warrant Stock shall be the price per share which the Corporation
could obtain from a willing buyer for shares of Warrant Stock sold
by the Corporation from its authorized but unissued shares, as the
Board of Directors of the Corporation shall determine in its
reasonable good faith judgment. In the event that holder
elects to convert the Warrant Stock through Cashless Exercise in
connection with a transaction in which the Warrant Stock is
converted into or exchanged for another security, holder may effect
a Cashless Exercise directly into such other security.
Notwithstanding the right of the holder to effect a Cashless
Exercise, the Corporation may require holder to exercise this
Warrant for cash if the Warrant Stock is registered under the
Securities Act of 1933, may be traded by holder without restriction
under SEC rules and regulations and applicable law and such
freely-tradable Common Stock issuable upon exercise of this Warrant
is delivered within three (3) Business Days of holder’s
exercise.
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.
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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