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 “EE-1” 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
39,216 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
$1.53.
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
June 19, 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:
Where
X =
the number of shares of Warrant
Stock to be issued to registered holder hereof.
Y =
the number of shares of Warrant
Stock to be exercised under this
Warrant
A =
the Fair Market Value of one share
of Warrant Stock.
B =
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
cor
