EXHIBIT 10.1
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 “DD-1” COMMON
STOCK PURCHASE WARRANT
Bioject Medical Technologies
Inc.
THIS CERTIFIES that for good and
valuable consideration received, Maxim Group, 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
100,000 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
$1.92.
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 19, 2010 (the “Expiration Time”).
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 Bedminster Professional Center, 211 Somerville Road
(Route 202 North), Bedminster, NJ 07921 (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
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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.
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.
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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, up
