EXHIBIT
10.1


 


BIOJECT
MEDICAL TECHNOLOGIES INC.



SERIES F CONVERTIBLE PREFERRED STOCK



PURCHASE AGREEMENT



January 22, 2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
  Agreement To Sell And Purchase

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1.

  	
  Authorization of Shares

  	
  1

  
	
   

  	
  1.2.

  	
  Sale and Purchase

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Closings,
  Delivery And Payment

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1.

  	
  Closing

  	
  1

  
	
   

  	
  2.2.

  	
  Delivery at Closing

  	
  1

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Representations And
  Warranties Of The Company

  	
  2

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Organization and Qualification

  	
  2

  
	
   

  	
  3.2.

  	
  Subsidiaries

  	
  2

  
	
   

  	
  3.3.

  	
  Capitalization

  	
  2

  
	
   

  	
  3.4.

  	
  Authorization; Binding
  Obligations

  	
  3

  
	
   

  	
  3.5.

  	
  Exchange Act Filings; Listing

  	
  4

  
	
   

  	
  3.6.

  	
  Additional Information

  	
  4

  
	
   

  	
  3.7.

  	
  Financial Statements

  	
  4

  
	
   

  	
  3.8.

  	
  Liabilities

  	
  5

  
	
   

  	
  3.9.

  	
  Agreements; Action

  	
  5

  
	
   

  	
  3.10.

  	
  Obligations to Related Parties

  	
  5

  
	
   

  	
  3.11.

  	
  Changes

  	
  5

  
	
   

  	
  3.12.

  	
  Title to Properties and
  Assets; Liens, Etc

  	
  6

  
	
   

  	
  3.13.

  	
  Intellectual Property

  	
  7

  
	
   

  	
  3.14.

  	
  Compliance with Other Instruments

  	
  7

  
	
   

  	
  3.15.

  	
  Litigation

  	
  7

  
	
   

  	
  3.16.

  	
  Tax Returns and Payments

  	
  8

  
	
   

  	
  3.17.

  	
  Employees

  	
  8

  
	
   

  	
  3.18.

  	
  Employee Benefit Plans; ERISA

  	
  8

  
	
   

  	
  3.19.

  	
  Obligations of Management

  	
  9

  
	
   

  	
  3.20.

  	
  Voting Rights

  	
  9

  
	
   

  	
  3.21.

  	
  Compliance with Laws; Permits

  	
  9

  
	
   

  	
  3.22.

  	
  Environmental and Safety Laws

  	
  9

  
	
   

  	
  3.23.

  	
  Offering Valid

  	
  9

  
	
   

  	
  3.24.

  	
  Full Disclosure

  	
  9

  
	
   

  	
  3.25.

  	
  Insurance

  	
  10

  
	
   

  	
  3.26.

  	
  Internal Accounting Controls

  	
  10

  
	
   

  	
  3.27.

  	
  Investment Company

  	
  10

  
	
   

  	
  3.28.

  	
  Integration, Etc

  	
  10

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Representations And
  Warranties Of The Purchasers

  	
  10

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Requisite Power and Authority

  	
  10

  
	
   

  	
  4.2.

  	
  Investment Representations

  	
  10

  
	
   

  	
  4.3.

  	
  Transfer Restrictions

  	
  12

  
	
   

  	
  4.4.

  	
  Short Sales

  	
  12

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Covenants

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Corporate Existence

  	
  12

  
	
   

  	
  5.2.

  	
  Reservation of Common Stock

  	
  12

  
	
   

  	
  5.3.

  	
  Exchange Act Registration

  	
  12

  
	
   

  	
  5.4.

  	
  Listing of Common Stock

  	
  12

  
	
   

  	
  5.5.

  	
  Increase in Authorized Shares

  	
  12

  



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Conditions To Closing

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Conditions to Purchasers’
  Obligations at the Closing

  	
  13

  
	
   

  	
  6.2.

  	
  Conditions to Obligations of
  the Company at the Closing

  	
  14

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Miscellaneous

  	
  14

  
	
   

  	
  7.1.

  	
  Governing Law

  	
  14

  
	
   

  	
  7.2.

  	
  Survival

  	
  14

  
	
   

  	
  7.3.

  	
  Attorneys’ Fees

  	
  14

  
	
   

  	
  7.4.

  	
  Successors and Assigns

  	
  14

  
	
   

  	
  7.5.

  	
  Entire Agreement

  	
  14

  
	
   

  	
  7.6.

  	
  Severability

  	
  14

  
	
   

  	
  7.7.

  	
  Amendment and Waiver

  	
  15

  
	
   

  	
  7.8.

  	
  Delays or Omissions

  	
  15

  
	
   

  	
  7.9.

  	
  Notices

  	
  15

  
	
   

  	
  7.10.

  	
  Titles and Subtitles

  	
  15

  
	
   

  	
  7.11.

  	
  Counterparts

  	
  15

  
	
   

  	
  7.12.

  	
  Broker’s Fees

  	
  15

  
	
   

  	
  7.13.

  	
  Public Announcements and
  Confidentiality

  	
  15

  
	
   

  	
  7.14.

  	
  Purchasers Business Activities

  	
  16

  
	
   

  	
  7.15.

  	
  Exculpation Among Purchasers

  	
  16

  
	
   

  	
  7.16.

  	
  Pronouns

  	
  16

  



 


	
  List of Exhibits:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule of Exceptions

  	
   

  	
   

  
	
  Schedule of Purchasers

  	
   

  	
  Exhibit A

  
	
  Articles of Amendment

  	
   

  	
  Exhibit B

  
	
  Registration Rights Agreement

  	
   

  	
  Exhibit C

  
	
  Form of Legal Opinion

  	
   

  	
  Exhibit D

  



 


ii

















 


BIOJECT
MEDICAL TECHNOLOGIES INC.



SERIES F CONVERTIBLE PREFERRED STOCK



PURCHASE AGREEMENT


 


This Purchase Agreement
(this “Agreement”) is made and entered into as of January 22, 2008, by and
among Bioject Medical Technologies Inc.,
an Oregon corporation (the “Company”), and the investors whose names and
addresses are set forth on the Schedule of Purchasers attached hereto as Exhibit A (individually, a “Purchaser”
and, collectively, the “Purchasers”).


 


RECITALS


 


The Company has authorized the sale and issuance of an
aggregate of 8,314 shares of its Series F Convertible Preferred Stock
pursuant to this Agreement (the “Shares”).


 


The Purchasers desire to purchase the Shares in
exchange for the cancellation of the outstanding principle amount of and
accrued interest through the date hereof on each Purchaser’s promissory note
issued by the Company (each a “Note” and together the “Notes”)
listed on Exhibit A hereto on
the terms and conditions set forth herein.


 


The Company desires to issue and sell the Shares to
the Purchasers on the terms and conditions set forth herein.


 


AGREEMENT


 


In consideration of the foregoing recitals and the
mutual promises, representations, warranties and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound
hereby, the parties hereto agree as follows:


 


1.                                      AGREEMENT
TO SELL AND PURCHASE.


 


1.1.         Authorization of Shares.  On or prior to the Closing (as hereinafter
defined), the Company shall have authorized (a) the sale and issuance to
the Purchasers of the Shares and (b) the issuance of such shares of common
stock, no par value, of the Company (“Common Stock”) to be issued upon
conversion of the Shares (the “Conversion Shares”).  The Shares shall have the rights,
preferences, privileges and restrictions set forth in the Articles of Amendment
to the Company’s 2002 Restated Articles of Incorporation, in the form attached
hereto as Exhibit B (the “Articles
of Amendment”).


 


1.2.         Sale and Purchase.  Subject to the terms and conditions hereof,
at the Closing the Company hereby agrees to issue and sell to each Purchaser,
severally and not jointly, and each Purchaser agrees to purchase from the Company,
severally and not jointly, the number of Shares set forth opposite each
Purchaser’s name on Exhibit A
at a price of $75.00 per share payable by cancellation of the outstanding
principle amount of and accrued interest on each Purchaser’s Note through the
date hereof.


 


2.                                      CLOSINGS,
DELIVERY AND PAYMENT.


 


2.1.         Closing.   The closing of the sale and purchase of the
Shares under this Agreement (the “Closing”) shall take place at
10:00 a.m. on January 22, 2008, at the offices of the Company in
Tualatin, Oregon, or at such other time or place as the Company and the
Purchasers may mutually agree (such date is hereinafter referred to as the “Closing
Date”).


 


2.2.         Delivery at Closing.  At
the Closing, subject to the terms and conditions hereof, the Company will deliver
to each Purchaser one or more certificates registered in the name of the
Purchaser, or in such nominee name(s) as designated by each Purchaser in
writing, representing the number of Shares to be purchased at the Closing by
such Purchaser. The name(s) in which certificates are to be registered are
as set forth on Exhibit A.
The Company’s obligation to complete the purchase and sale of the Shares being
purchased hereunder and deliver such certificates to the Purchasers at the
Closing shall be subject to the following conditions: (a) receipt by the 


 

















 


Company of the original Notes for cancellation and
(b) the accuracy in all material respects of the representations and
warranties made by the Purchasers and the fulfillment of those undertakings of
the Purchasers to be fulfilled prior to or at the Closing.  The Purchasers’ obligation to accept delivery
of such certificates and to deliver the Notes for cancellation shall be subject
to the accuracy in all material respects of the representations and warranties
made by the Company herein and the fulfillment of those undertakings of the
Company to be fulfilled prior to or at the Closing.


 


3.                                      REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


Except as set forth on a Schedule of Exceptions
delivered by the Company to the Purchasers at the Closing (the “Schedule of
Exceptions”) specifically identifying the relevant Section or Sections
hereof and except as disclosed in the Company’s publicly available filings made
with the Securities and Exchange Commission, the Company hereby represents and
warrants to each Purchaser as of the date of this Agreement as set forth below.


 


3.1.         Organization and Qualification.  The Company is a corporation duly organized
and validly existing under the laws of the State of Oregon.  The Company has all requisite corporate power
and authority to own and operate its properties and assets, to execute and
deliver the Articles of Amendment, this Agreement, the Registration Rights
Agreement in the form attached hereto as Exhibit C
(the “Registration Rights Agreement”),  and any other agreements contemplated
hereby (collectively, the “Transaction Documents”), to issue and sell
the Shares and the Conversion Shares, and to carry out the provisions of the
Transactions Documents and to carry on its business as presently
conducted.  The Company is duly qualified
and is authorized to do business and is in good standing as a foreign
corporation in all jurisdictions in which the nature of its activities and of
its properties (both owned and leased) makes such qualification necessary,
except for those jurisdictions in which failure to do so would not have a
Material Adverse Effect (as hereinafter defined).


 


3.2.         Subsidiaries.  The
Company does not own or control any equity security or other interest of any other
corporation, limited partnership or other business entity other than
Bioject, Inc. and Marathon Medical Technologies, Inc.  The Company is not a participant in any joint
venture, partnership, or similar arrangement.


 


Each of the Company’s subsidiaries has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as conducted and
as proposed to be conducted, and is duly qualified and is in good standing as a
foreign corporation in each jurisdiction in which such qualification is
required, except where the failure to be so qualified will not have a Material
Adverse Effect.  All of the issued and outstanding
capital stock of each such subsidiary has been duly authorized and validly
issued, is duly paid and nonassessable and is owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and none of the outstanding shares of capital stock of each such
subsidiary was issued in violation of any preemptive or similar rights of any
third party.


 


3.3.         Capitalization.


 


(a)           The authorized
capital stock of the Company, immediately prior to the Closing, consists of
(i) 100,000,000 shares of common stock, no par value per share (“Common
Stock”), 15,321,121 shares of which are issued and outstanding and
(ii) 10,000,000 shares of preferred stock, no par value per share (“Preferred
Stock”), (A) 1,235,000 shares of which are designated Series A
Preferred Stock (the “Series A Preferred”), of which no shares are
issued and outstanding, (B) 200,000 shares of which are designated
Series B Preferred Stock (the “Series B Preferred”), of which
no shares are issued and outstanding, (C) 500,000 shares of which are
designated Series C Preferred Stock (the “Series C Preferred”),
of which no shares are issued and outstanding, (D) 2,086,957 shares of
which are designated Series D Preferred Stock (the “Series D
Preferred”), all of which are outstanding, (E) 4,000,000 shares which
are designated Series E Preferred Stock (the “Series E Preferred”),
3,308,394 of which are issued and outstanding, (F) 9,644 shares of
which are designated Series F Preferred Stock (the “Series F Preferred”),
of which no shares are issued and outstanding, and (G) 12,500 shares
of which are designated Series R Participating Preferred Stock (the “Series R
Preferred”), of which no shares are issued and outstanding.


 


(b)           (i) No shares
have been issued pursuant to restricted stock purchase agreements, the
restrictions under which have not expired, (ii) options and restricted
stock units to acquire 1,855,305 shares of 


 


2

















 


Common Stock have been granted or are currently
outstanding, (iii) the Company has reserved 513,598 shares of Common Stock
for future issuance to officers, directors, employees and consultants of the
Company, including at the discretion of the Company’s Board of Directors, as
part of a stock incentive option plan.


 


(c)           Other than
(i) as set forth in Section 3.3 of the Schedule of Exceptions,
(ii) the shares reserved for issuance under Section 3.3(b)(iii),
and (iii) except as may be granted pursuant to this Agreement and the
Registration Rights Agreement, there are no outstanding options, warrants,
rights (including conversion or preemptive rights and rights of first refusal,
whether in favor of the Company or any other person), proxy or stockholder
agreements, or agreements of any kind for the purchase or acquisition from the
Company of any of its securities.


 


(d)           All issued and
outstanding shares of the Common Stock and Preferred Stock (i) have been
duly authorized and validly issued, are fully paid and nonassessable,
(ii) were issued in compliance with all applicable state and federal laws
concerning the issuance of securities, and (iii) were not issued in
violation or subject to any preemptive rights or other rights to subscribe for
or purchase securities.


 


(e)           The rights,
preferences, privileges, and restrictions of the Shares are as stated in the
Articles of Amendment.  The Conversion
Shares have been duly and validly reserved for issuance. When issued in
compliance with the provisions of this Agreement and the Articles of Amendment,
as the case may be, the Shares and the Conversion Shares will be validly
issued, fully paid and nonassessable, and, except as provided in the
Registration Rights Agreement, will be free of any liens or encumbrances; provided, however, that the Shares and the
Conversion Shares may be subject to restrictions on transfer under state and/or
federal securities laws as set forth herein or as otherwise required by such
laws at the time a transfer is proposed.


 


(f)            No stock plan,
stock purchase, stock option, or other agreement or understanding between the
Company and any holder of any equity securities or rights to purchase equity
securities provides for acceleration or other changes in the vesting provisions
or other terms of such agreement or understanding as the result of
(i) termination of employment (whether actual or constructive); or
(ii) the occurrence of any other event or combination of events.


 


(g)           The sale of the
Shares and the subsequent conversion of the Shares into Conversion Shares are
not and will not be subject to any preemptive rights or rights of first refusal
that have not been properly waived or complied with.


 


(h)           No further approval
or authority of the stockholders or the Board of Directors of the Company will
be required for the issuance and sale of the Shares to be sold by the Company
as contemplated herein or for the issuance and delivery of the Conversion
Shares.


 


3.4.         Authorization; Binding Obligations.  All corporate action on the part of the
Company, its officers, directors, and stockholders necessary for the
authorization of this Agreement and the other the Transaction Documents, the
performance of all obligations of the Company hereunder and thereunder at the
Closing and the authorization, sale, issuance, and delivery of the Shares
pursuant hereto and the Conversion Shares pursuant to the Articles of
Amendment, as the case may be, has been taken or will be taken prior to the
Closing.


 


The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions therein contemplated will not result in the creation of any lien,
charge, security interest or encumbrance upon any assets of the Company
pursuant to the terms or provisions of, or conflict with, result in the breach
or violation of, or constitute, either by itself or upon notice or the passage
of time or both, a default under any material agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to
which the Company is a party or by which the Company or any of its properties
may be bound or affected and in each case which individually or in the
aggregate would have a material adverse effect on the condition (financial or
otherwise), properties, business, or results of operations of the Company and
its subsidiaries, taken as a whole (a “Material Adverse Effect”), or any
statute or any authorization, judgment, decree, order, rule or regulation
of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its respective
properties.  No consent, approval,
authorization or other order of, or filing with, any court, regulatory body,
administrative agency, or other governmental body is required for the execution
and 


 


3

















 


delivery of the Transaction Documents or the
consummation of the transactions contemplated by the Transaction Documents,
except for (a) the filing of the Articles of Incorporation, which will be
filed on the Closing Date, (b) filings pursuant to Regulation D of the
Securities Act, and applicable state securities laws, which have been made or
will be made in a timely manner, and (c) the filing of the required notice
to the NASDAQ Capital Market.


 


The Transaction Documents when executed and delivered,
will be valid and binding obligations of the Company enforceable in accordance
with their terms, except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application affecting
enforcement of creditors’ rights, (b) as limited by general principles of
equity that restrict the availability of equitable remedies, and (c) to
the extent that the enforceability of the indemnification provisions in
Section 9 of the Registration Rights Agreement may be limited by
applicable laws.


 


3.5.         Exchange Act Filings; Listing.  During the twelve (12) calendar months
immediately preceding the date of this Agreement, all reports and statements
required to be filed by the Company with the Securities and Exchange Commission
(“SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), and the rules and regulations thereunder, have been timely
filed. Such filings, together with all documents incorporated by reference
therein, are referred to as “Exchange Act Documents.” The Company’s
Common Stock is quoted on the NASDAQ Capital Market.


 


3.6.         Additional Information. 
A true and complete copy of each report, schedule, registration
statement, and definitive proxy statement filed by the Company with the SEC
under the Exchange Act during the twelve (12) months preceding the Closing Date
(as such documents have since the time of their filing been amended, the “Information
Documents”), which are all the documents (other than preliminary material)
that the Company was required to file with the SEC since such date, has been
made available to the Purchasers.  As of
their respective dates, the Information Documents and any forms, reports and
other documents filed by the Company during the period commencing on the date
of this Agreement and ending on the last date on which the Company is required
to maintain the effectiveness of the registration statement referred to in the
Registration Rights Agreement (the “Registration Statement”), complied
or will comply in all material respects with the requirements of the Securities
Act of 1933 (the “Securities Act”) or the Exchange Act, as the case may
be, and the rules and regulations of the Commission thereunder applicable
to the Information Documents or such other forms, reports or other documents,
and none of the Information Documents contained, or will contain at the time
they are filed, any untrue statement of a material fact or omitted, or will
omit at the time they are filed, to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.


 


3.7.         Financial Statements.  The Company has made available to the
Purchaser its (or to the extent applicable, those of any predecessor in
interest) (a) The audited financial statements, together with the related
notes of the Company at December 31, 2006 and December 31, 2005, and
for the years then ended included in the Company’s Annual Report on
Form 10-K for the year ended December 31, 2006 (the “2006
Statements”), and (b) the unaudited financial statements of the
Company at September 30, 2007 (the “Statement Date”), and for the
nine months then ended, (the “Year to Date Statements” and together with
the 2006 Statements, “Financial Statements”) included in the Company’s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2007.  The Financial Statements
(a) represent actual bona fide transactions, (b) have been prepared from
the books and records of the Company in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated, except as disclosed therein or in the Schedule of Exceptions, and
(c) fairly present, on the basis stated therein and on the date thereof,
the financial condition and position of the Company as of December 31,
2006, and the Statement Date and its results of operations and cash flows for
the periods then ended; provided, however,
that the Year-to-Date Statements are subject to normal recurring year-end
adjustments (which are not expected to be material either individually or in
the aggregate), and omit all footnotes required under generally accepted
accounting principles.


 


The books of account and other records of the Company
are complete and correct and have been maintained in accordance with sound
business practices, including the maintenance of an adequate system of internal
controls.


 


4

















 


3.8.         Liabilities.  The Company has no material liabilities and,
to the best of its knowledge, knows of no material contingent liabilities, in
each case except as disclosed in the Financial Statements or in Forms 8-K filed
since September 30, 2007 and except for current liabilities incurred in
the ordinary course of business subsequent to the Statement Date that are not
material, either in any individual case or in the aggregate.


 


3.9.         Agreements;
Action.


 


(a)           Except for the
Registration Rights Agreement, the Registration Rights Agreement dated
November 15, 2004 between the Company and certain investors, the
Securities Purchase Agreement dated March 8, 2006 between the Company and
certain investors, or other contracts or agreements referred to or contemplated
herein or therein, there are no material agreements, understandings or proposed
transactions between the Company and any of its officers, directors, affiliates
or any affiliate thereof.


 


(b)           Since the Statement
Date, the Company has not (i) declared or paid any dividends, or
authorized or made any distribution upon or with respect to any class or series
of its capital stock, (ii) except for $500,000 borrowed from Edward Flynn,
$508,896 borrowed from Life Sciences Opportunities Fund II (Institutional)
L.P., $91,104 borrowed from Life Science Opportunities Fund II, L.P., and an
aggregate of $115,000 borrowed from Ralph Makar, David Tierney, Richard Stout
and Christine Farrell, incurred any indebtedness for money borrowed or any
other liabilities (other than with respect to dividend obligations, distributions,
indebtedness and other obligations incurred in the ordinary course of business
or as disclosed in the Financial Statements) individually in excess of $50,000
or, in the case of indebtedness and/or liabilities individually less than
$50,000, in excess of $200,000 in the aggregate, (iii) made any loans or
advances to any person, other than ordinary advances for travel expenses, or
(iv) sold, exchanged or otherwise disposed of any of its assets or rights,
other than the sale of its inventory in the ordinary course of business.  For the purposes of this subsection, all
indebtedness, liabilities, agreements, understandings, instruments, contracts
and proposed transactions involving the same person or entity (including
persons or entities the Company has reason to believe are affiliated therewith)
shall be aggregated for the purpose of meeting the individual minimum dollar
amounts of such subsections.


 


(c)           Other than as
described in the Schedule of Exceptions, the Company is not under any binding
obligation to any third party (other than obligations to keep information or
discussions confidential) as a result of any discussion or negotiation
undertaken in the past twelve months relating to (i) the consolidation or
merger of the Company with or into any such corporation or corporations,
(ii) the sale, conveyance, or disposition of all or substantially all of
the assets of the Company, or a transaction or series of related transactions
in which more than 50% of the voting power of the Company is disposed of, or
(iii)  any other form of acquisition, liquidation, dissolution, or winding
up, of the Company.


 


3.10.       Obligations to Related Parties.  Except as set forth on the Schedule of
Exceptions, there are no obligations of the Company to officers, directors or
employees of the Company other than (a) for payment of salary for services
rendered, (b) reimbursement for reasonable expenses incurred on behalf of
the Company, (c) for other standard employee benefits made generally
available to all employees (including stock option agreements and restricted
stock unit agreements outstanding under any stock option plan approved by the
Board of Directors of the Company), (d) relocation and stock award
obligations to the Chief Executive Officer pursuant to his employment
agreement, and (e) obligations for indemnification under the Company’s
organizational documents and applicable law. 
Except as set forth on the Schedule of Exceptions, none of the officers,
directors or key employees of the Company, or any members of their immediate
families, are indebted to the Company or, to the Company’s knowledge, have any
direct or, to the best of the Company’s knowledge, indirect ownership interest
in any firm or corporation with which the Company is affiliated or with which
the Company has a business relationship, or any firm or corporation which
competes with the Company, other than passive investments in publicly traded
companies (representing less than 1% of such company) which may compete with
the Company.  No officer or director, or
any member of their immediate families, is, directly or, to the best of the
Company’s knowledge, indirectly, interested in any contract with the Company
(other than such contracts as relate to any such person’s ownership of capital
stock or other securities of the Company). 
Except as may be disclosed in the Financial Statements, the Company is
not a guarantor or indemnitor of any indebtedness of any other person, firm or
corporation, other than Bioject, Inc.


 


3.11.       Changes.  Since the Statement Date and except as
disclosed on any Form 8-K filed since September 30, 2007, there has
not been:


 


5

















 


(a)           Any change in the
assets, liabilities, financial condition,  or
operations of the Company from that reflected in the Financial Statements,
other than changes in the ordinary course of business, none of which
individually or in the aggregate has had or is reasonably expected to have a
Material Adverse Effect;


 


(b)           Any resignation or
termination of any officer, key employee or group of employees of the Company;
and the Company, to the best of its knowledge, does not know of the impending
resignation or termination of employment of any such officer, key employee or
group of employees;


 


(c)           Any material
change, except in the ordinary course of business, in the contingent
obligations of the Company by way of guaranty, endorsement, indemnity, warranty
or otherwise;


 


(d)           Any damage,
destruction or loss, whether or not covered by insurance, which is reasonably
expected to have a Material Adverse Effect;


 


(e)           Any waiver by the
Company of a valuable right or of a material debt owed to it;


 


(f)            Any direct or
indirect loans made by the Company to any employee, officer or director of the
Company, other than advances made in the ordinary course of business;


 


(g)           Any material change
in any compensation arrangement or agreement with any employee, officer or
director;


 


(h)           To the knowledge of
the Company, any labor organization activity related to the Company;


 


(i)            Any debt, obligation
or liability incurred, assumed or guaranteed by the Company, except those for
immaterial amounts and for current liabilities incurred in the ordinary course
of business;


 


(j)            Any sale,
assignment or transfer of any patents, trademarks, copyrights, trade secrets or
other intangible assets, other than the granting of licenses to strategic
partners in the ordinary course of the Company’s business;


 


(k)           Any change in any
material agreement to which the Company is a party or by which it is bound
which is reasonably expected to have a Material Adverse Effect;


 


(l)            Any other event or
condition of any character that, either individually or cumulatively, has or is
reasonably expected to have a Material Adverse Effect; or


 


(m)          Any arrangement or
commitment by the Company to do any of the acts described in subsection
(a) through (l) above.


 


3.12.       Title to Properties and Assets; Liens,
Etc.  The Company has
good and marketable title to its material tangible properties and assets,
including the tangible properties and assets reflected in the most recent
balance sheet included in the Financial Statements, and good title to its
leasehold estates, in each case subject to no mortgage, pledge, lien, lease,
encumbrance or charge, other than (a) those resulting from taxes which
have not yet become delinquent, (b) minor liens and encumbrances which do
not materially detract from the value of the property subject thereto or
materially impair the operations of the Company, and (c) those that have
otherwise arisen in the ordinary course of business.  All material facilities, machinery,
equipment, fixtures, vehicles and other tangible assets owned, leased or used
by the Company are in good operating condition and repair and are reasonably
fit and usable for the purposes for which they are being used.  The Company is in compliance with all
material terms of each lease to which it is a party or is otherwise bound.


 


6

















 


3.13.       Intellectual
Property


 


(a)           Set forth in the
Schedule of Exceptions is a true and complete list of all patents, patent
applications, trademarks, service marks, trademark and service mark
applications, trade names, copyright registrations and licenses presently used
by the Company (with the exception of licenses and rights in “off the shelf”
software publications and sold as such). To the Company’s best knowledge, the
Company has full title and ownership of, or is duly licensed or otherwise
authorized to use, all patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, know-how, information and other
proprietary rights and processes and formulae, and applications for patents,
trademarks, service marks, and copyrights (collectively, “Intellectual
Property Rights”) necessary for its business as now conducted or as
presently proposed to be conducted, without any infringement of the rights of
others.  There are no outstanding
options, licenses, or agreements of any kind relating to any of the
Intellectual Property Rights that are owned by the Company, or to the Company’s
knowledge, relating to rights that are licensed to the Company by other
parties.  The Company is not bound by nor
is it a party to any options, licenses or agreements of any kind with respect
to the Intellectual Property Rights of any other person or entity other than
such licenses or agreements arising from the purchase of “off the shelf”
software or standard products, and other than licenses granted by sponsors of
the Company in order to enable the Company to perform its production services
for such sponsors.


 


(b)           Neither the Company
nor any of its subsidiaries is in default of its obligations to pay royalties
or other amounts to other persons by reason of the ownership or use of any
Intellectual Property Rights used by the Company and its subsidiaries for the
conduct of their respective businesses.


 


(c)           To the best of the
Company’s knowledge, no Intellectual Property Right owned by the Company or any
of its subsidiaries violates or will violate any license or infringes or will
infringe any Intellectual Property Rights of another.  To the best of the Company’s knowledge, no
Intellectual Property Right, product or service marketed, sold or licensed (as
licensor or as licensee) by the Company or any of its subsidiaries, violates or
will violate any license or infringes or will infringe any Intellectual
Property Rights of another, nor has the Company or any of its subsidiaries
received any notice that any of the Intellectual Property Rights used by the
Company or any of its subsidiaries for the conduct of their respective
businesses, conflicts or will conflict with the rights of others.


 


(d)           There are no claims
pending or, to the best of the Company’s knowledge, threatened with respect to
any Intellectual Property Rights necessary or required for the conduct of the
business of the Company or any of its subsidiaries as currently conducted, nor,
to the best of the Company’s knowledge, does there exist any basis therefor.


 


3.14.       Compliance with Other Instruments.  The Company is not in violation or default of
any provision of its articles of incorporation or bylaws. The Company and to
the best of the Company’s knowledge, each other party thereto, is not in breach
of or default with respect to any provision of any mortgage, indenture,
contract, agreement, instrument, contract, decree, order, lease, franchise,
license, permit, or other instrument to which it is party or by which it or any
of its properties are bound; and there does not exist any state of facts which,
with notice or lapse of time or both, would constitute an event of default as
defined in such documents on the part of the Company, except for such breaches
and defaults which individually or in the aggregate would not have a Material
Adverse Effect. The execution, delivery, and performance of and compliance with
this Agreement, the Articles of Amendment, and the Registration Rights
Agreement, and the issuance and sale of the Shares pursuant hereto, and of the
Conversion Shares pursuant to the Articles of Amendment, will not, with or without
the passage of time or giving of notice or both, result in any such material
violation, or be in conflict with or constitute a material default under any
such term or provision, or result in the creation of any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of the Company
or the suspension, revocation, impairment, forfeiture or nonrenewal of any
permit, license, authorization or approval applicable to the Company, its
business or operations or any of its assets or properties.  The Company has avoided every condition, and
has not performed any act, the occurrence of which would result in the
Company’s loss of any right granted under any license, distribution agreement,
or other agreement required to be disclosed on the Schedule of Exceptions.


 


3.15.       Litigation.   There is
no action, suit, proceeding, or investigation pending or, to the Company’s
knowledge, currently threatened against the Company that questions the validity
of this Agreement, the 


 


7

















 


Articles of Amendment, or the Registration Rights
Agreement or the right of the Company to enter into any of such agreements, or
to consummate the transactions contemplated hereby or thereby, or which might  result, either individually or in the
aggregate, in any Material Adverse Effect, nor is the Company aware that there
is any basis for any of the foregoing. The foregoing includes, without
limitation, actions pending or, to the Company’s knowledge, threatened or any
basis therefor known by the Company involving the prior employment of any of
the Company’s employees, their use in connection with the Company’s business of
any information or techniques allegedly proprietary to any of their former
employers, or their obligations under any agreements with prior employers.  The Company is not a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. 
There is no action, suit, proceeding or investigation by the Company
currently pending or which the Company intends to initiate.


 


3.16.       Tax Returns and Payments.
 The Company has timely filed all material tax
returns (federal, state, and local) required to be filed by it.  All taxes shown to be due and payable on such
returns and to the Company’s knowledge all other material taxes due and payable
by the Company on or before the Closing, have been paid or will be paid prior
to the time they become delinquent.  The Company has not been notified
in writing (a) that any of its federal, state, or local tax returns have
been or are being audited as of the date hereof, or (b) of any proposed
deficiency in or adjustment to its federal, state or local taxes.  The Company has no knowledge of any liability
for any material tax to be imposed upon its properties or assets as of the date
of this Agreement that is not adequately provided for. The Company has withheld
and paid all taxes required to be withheld and paid in connection with amounts
paid or owing to any employee, creditor, shareholder, or other third party.
There are no agreements, waivers, or other arrangements providing for an
extension of time with respect to the assessment of any taxes or deficiency
against the Company. To the Company’s knowledge, there is no pending or
threatened investigation of the Company by any federal, state, foreign, or
local authority relating to any taxes or assessments, or any claims for
additional taxes or assessments asserted by any such authority.


 


3.17.       Employees.  The Company
has no collective bargaining agreements with any of its employees.  There is no labor union organizing activity
pending or, to the Company’s knowledge, threatened with respect to the Company.
To the Company’s knowledge, no employee of the Company, nor any consultant with
whom the Company has contracted, is in material violation of any term of any
employment contract, proprietary information agreement, or any other agreement
relating to the right of any such individual to be employed by, or to contract
with, the Company because of the nature of the business to be conducted by the
Company; and to the Company’s knowledge the continued employment by the Company
of its present employees, and the performance of the Company’s contracts with
its independent contractors, will not result in any such material
violation.  The Company has not received
any written notice alleging that any such material violation has occurred.  No employee of the Company has been granted
the right to continued employment by the Company or to any material
compensation following termination of employment with the Company (other than
to Ralph Makar, Richard Stout and Christine Farrell pursuant to their
respective employment agreements).  The
Company is not aware that any officer, key employee, or group of employees
intends to terminate his, her, or their employment with the Company, nor does
the Company have a present intention to terminate the employment of any
officer, key employee, or group of employees. The Company is not aware of any
claims, actions, proceedings, or threats relating to sexual harassment,
wrongful termination, discrimination, or any other employment matter. To the
Company’s knowledge there is no fact or circumstance that is reasonably
expected to, with the passage of time or otherwise, cause this representation
to be no longer true and correct. To the Company’s knowledge, the Company is in
compliance in all material respects with all provisions of the Fair Labor
Standards Act, all applicable state wage and hour laws, and all applicable
workers’ compensation laws.


 


3.18.       Employee Benefit Plans; ERISA.  All pension, retirement, bonus, profit
sharing, stock option, employee, and other benefit or welfare plans or
arrangements maintained by the Company, or to which the Company contributes or
is required to contribute, to the extent required, materially comply with the
provisions of and have been administered and maintained in material compliance
with the provisions of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”) and all other applicable laws.  The Company is not a party to or bound by any
currently effective employment contract, deferred compensation arrangement,
bonus plan, incentive plan, profit sharing plan, retirement agreement, or other
employee compensation plan or agreement, including, but not limited to, any
“employee pension benefit plan” as defined in Section 3 of ERISA. All
unpaid liabilities of the Company with respect to, and all unfunded benefits
(whether vested or not) under, each employee welfare benefit plan as defined in
Section 3(1) of ERISA maintained by the Company have been calculated
and are reflected in the 


 


8

















 


Company’s financial statement in accordance with
generally accepted accounting principles, and any such liabilities incurred
after the date of such financial statements will be incurred in the ordinary
course of business, determined in a manner substantially similar to that used
in such financial statements.


 


3.19.       Obligations of Management.
 Each officer and key employee of the Company
is currently devoting substantially all of his or her business time to the
conduct of the business of the Company. 
The Company is not aware that any officer or key employee of the Company
is planning to work less than full time at the Company in the future.  No officer or key employee is currently
working or, to the Company’s knowledge, plans to work for a competing
enterprise, whether or not such officer or key employee is or will be
compensated by such enterprise.


 


3.20.       Voting Rights.  To the Company’s knowledge, no stockholder of
the Company has entered into any agreement with respect to the voting of equity
securities of the Company.


 


3.21.       Compliance with Laws; Permits. 
The Company is not in violation of any applicable statute, rule,
regulation, order or restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct of its business or
the ownership of its properties which violation would have a Material Adverse
Effect.  No governmental orders,
permissions, consents, approvals, or authorizations are required to be obtained
and no registrations or declarations are required to be filed in connection
with the execution and delivery of this Agreement and the issuance of the
Shares and the Conversion Shares, except such as has been duly and validly
obtained or filed, or with respect to any filings that must be made after the
Closing (including the filing of relevant notices under applicable state law and
a Form D pursuant to the Securities Act), as will be filed in a timely
manner.  The Company has all franchises,
permits, licenses, and any similar authority necessary for the conduct of its
business as now being conducted by it, the lack of which could have a Material
Adverse Effect and believes it can obtain, without undue burden or expense, any
similar authority for the conduct of its business as planned to be conducted.


 


3.22.       Environmental and Safety Laws.  The Company is not in violation in any material
respect of any applicable statute, law or regulation relating to the
environment or occupational health and safety, and to its knowledge, no
material expenditures are or will be required in order to comply with any such
existing statute, law, or regulation. Hazardous Materials (as defined below)
are used or have been used, stored, or disposed of by the Company in material
compliance with all applicable statutes, laws and regulations. Except as set
forth on the Schedule of Exceptions, the Company has not, and to the Company’s
knowledge, no other person has caused any release, threatened release, or
disposal of any Hazardous Material on any property owned, leased, or used by
the Company. For the purposes of the preceding sentences, “Hazardous
Material” means any substance, chemical, compound, product, solid,
gas, liquid, waste, byproduct, pollutant, compound, or material that is listed
or otherwise regulated as “hazardous” or “toxic” under any applicable local,
state and federal laws and regulations that govern the existence and/or remedy
of contamination on property, the protection of the environment from
contamination, the control of hazardous wastes, or other activities involving
medical waste, biological waste, or hazardous substances (“Applicable
Environmental Law”), and includes asbestos, polychlorinated biphenyls
(PCBs), petroleum products, or nuclear materials.  To the Company’s knowledge, the Company has
no material liability for response or corrective action, natural resource
damage, or other harm pursuant to Applicable Environmental Law.


 


3.23.       Offering Valid.  Assuming the accuracy of the representations
and warranties of each Purchaser contained in Section 4.2 hereof,
the offer, sale, and issuance of the Shares and the Conversion Shares will be
exempt from the registration requirements of the Securities Act, and will 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. 
Neither the Company nor any agent on its behalf has solicited or will
solicit any offers to sell or has offered to sell or will offer to sell all or
any part of the Shares to any person or persons so as to bring the sale of such
Shares by the Company within the registration provisions of the Securities Act
or any state securities laws.


 


3.24.       Full Disclosure.  None of this Agreement, the Registration
Rights Agreement, the Articles of Amendment, nor any other certificate
delivered by the Company to the Purchaser in connection herewith or therewith
or with the transactions contemplated hereby or thereby, contains any untrue
statement of a material 


 


9

















 


fact nor omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading in
light of the circumstances in which such statements were made.


 


3.25.       Insurance.  The
Company has general commercial, product liability, fire and casualty insurance
policies and, to the best of its knowledge, such policies provide coverage
customary for companies similarly situated to the Company.


 


3.26.       Internal Accounting Controls. 
The Company has established disclosure controls and procedures (as
defined in Exchange Act rules 13a-15 and 15d-15) for the Company and
designed such disclosure controls and procedures to ensure that material
information relating to the Company is made known to the certifying officers by
others within those entities, particularly during the period in which the
Company’s Form 10-K or 10-Q, as the case may be, is being prepared.  The Company’s certifying officers have
evaluated the effectiveness of the Company’s controls and procedures as of a
date within 90 days prior to the filing date of the Form 10-Q for the
Company’s most recently ended fiscal quarter (such date, the “Evaluation
Date”).  The Company presented in its
most recently filed Form 10-K or Form 10-Q the conclusions of the
certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date.  Since the Evaluation Date, there have been no
significant changes in the Company’s internal control over financial reporting
(as such term is defined in Exchange Act rules 13a-15(f) and 15d-15(f))
or, to the Company’s knowledge, in other factors that could significantly
affect the Company’s internal controls.


 


3.27.       Investment Company. 
The Company is not regulated or required to be registered as an
“investment company” within the meaning of the Investment Company Act of 1940,
as amended.


 


3.28.       Integration, Etc.  The
Company has not in the past nor will it hereafter take any action to sell,
offer for sale or solicit offers to buy any securities of the Company which
would bring the offer, issuance or sale of the Shares, as contemplated by this
Agreement, within the provisions of Section 5 of the Securities Act.  Neither the Company nor any of its Affiliates
(as defined in Rule 501(b) of Regulation D under the Securities Act)
has directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any “security” (as defined
in the Securities Act) which is or could be integrated with the sale of the
Shares in a manner that would require the registration under the Securities Act
of the Shares or (ii) engaged in any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) in connection with the offering of the Shares or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.


 


4.                                      REPRESENTATIONS
AND WARRANTIES OF THE PURCHASERS.


 


Each Purchaser hereby represents and warrants to the
Company as follows:


 


4.1.         Requisite Power and Authority.   Such Purchaser that is not a natural person is
an entity duly organized, validly existing and in good standing under the laws
of its state of formation.  Such
Purchaser has all necessary power and authority to execute and deliver this
Agreement and the Registration Rights Agreement and to carry out their
provisions.  All action on such
Purchaser’s part required for the lawful execution and delivery of this
Agreement and the Registration Rights Agreement has been or will be effectively
taken prior to the Closing.  Upon their
execution and delivery, this Agreement and the Registration Rights Agreement to
which it is a party will be valid and binding obligations of such Purchaser,
enforceable in accordance with their terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’ rights, (b) as
limited by general principles of equity that restrict the availability of
equitable remedies, and (c) to the extent that the enforceability of the
indemnification provisions of Section 9 of the Registration Rights
Agreement may be limited by applicable laws.


 


4.2.         Investment Representations. 
Such Purchaser understands that none of the Shares or the Conversion
Shares has been registered under the Securities Act.  Such Purchaser also understands that the
Shares are being offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Purchaser’s representations
contained in the Agreement.  Purchaser
hereby represents and warrants as follows:


 


10

















 


(a)           Purchaser Bears Economic Risk.  Such Purchaser has substantial experience in
evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests.  Such Purchaser must bear
the economic risk of this investment indefinitely unless the Shares (or the
Conversion Shares) are registered pursuant to the Securities Act, or an
exemption from registration is available. 
Such Purchaser has requested, received, reviewed, and understood all
information it deems relevant in making an informed decision to purchase the
Shares, including without limitation, the information contained in the
Information Documents.


 


(b)           Acquisition for Own Account.  Such Purchaser is acquiring the Shares and
the Conversion Shares for such Purchaser’s own account for investment only, and
not with a view towards their distribution.


 


(c)           Purchaser Can Protect Its Interest.  Such Purchaser represents that by reason of
its, or of its management’s, business or financial experience or relationship
with the Company, such Purchaser has the capacity to protect its own interests
in connection with the transactions contemplated in this Agreement and the
Registration Rights Agreement.


 


(d)           Accredited Purchaser.  Such purchaser acknowledges that the offering
of the Shares pursuant to this Agreement has not been reviewed by the SEC or
any state regulatory authority. Such Purchaser represents that it is an
“accredited investor” within the meaning of Regulation D under the Securities
Act. Such Purchaser has also had the opportunity to ask questions of and
receive answers from, the Company and its management regarding the terms and
conditions of this investment.


 


(e)           Rule 144.  Such Purchaser acknowledges and agrees that
the Shares, and, if issued, the Conversion Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an
exemption from such registration is available, and such securities will bear a
restrictive legend similar to the following:


 


“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”) OR ANY STATE
SECURITIES LAWS.  THEY MAY NOT BE
SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED FOR VALUE UNLESS THEY ARE
REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR THE
CORPORATION RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO IT, OR OTHERWISE
SATISFIES ITSELF, THAT REGISTRATION IS NOT REQUIRED.”


 


Such Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act as in effect
from time to time, which permits limited resale of shares purchased in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information
about the Company, the resale occurring following the required holding period
under Rule 144 and the number of shares being sold during any three-month
period not exceeding specified limitations.


 


(f)            Residence.  If the Purchaser is an individual, then the
Purchaser resides in the state or province identified in the address of the
Purchaser set forth on Exhibit A;
if the Purchaser is a partnership, corporation, limited liability company or
other entity, then the principal place of business of the Purchaser, or if not the
principal place of business, the office or offices in which its investment
decision was made, is located at the address or addresses of the Purchaser set
forth on Exhibit A.


 


(g)           No General Solicitation.  The Purchaser has not received any general
solicitation or general advertising (including any advertisement, article,
notice or other communication published in any newspaper, magazine or similar
media or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising)
concerning the Company or the Shares, nor is the Purchaser aware that any such
solicitation or advertising was received by anyone else.


 


11

















 


(h)           Receipt of Information.  Such Purchaser has met with officers of the
Company, has had an opportunity to ask questions and receive answers concerning
the business, properties, and financial condition of the Company and the terms
and conditions of an investment in the Company, and has received all
information (including projections about the Company) that such Purchaser
believes is necessary or desirable in connection with an investment in the
Company.  Such Purchaser understands that
any projections that it has received are based on numerous important
assumptions and that some or all of such assumptions will likely prove to be
incorrect and, accordingly, the actual results of the Company will vary from
the projections and such variations may be material.  Such Purchaser has been solely responsible
for its own due diligence investigation of the Company and its business, for
analysis of the merits and risks of the investment made pursuant to this
Agreement and for analysis of the terms of the investment.


 


4.3.         Transfer Restrictions.   Each Purchaser acknowledges and agrees that
the Shares and, if issued, the Conversion Shares are subject to restrictions on
transfer as set forth in the Registration Rights Agreement.


 


4.4.         Short Sales.  Each
Purchaser agrees not to sell short any shares of Common Stock or engage in
other hedging transactions with respect to the Common Stock so long as such
Purchaser owns any Shares or Conversion Shares and each Purchaser further
agrees that it shall not permit its affiliates to engage in any of the
foregoing activities.


 


5.                                      COVENANTS.


 


5.1.         Corporate Existence. 
The Company will take all steps necessary to preserve and continue the
corporate existence of the Company.


 


5.2.         Reservation of Common Stock. 
As of the date hereof, the Company has authorized and reserved and the
Company shall continue to reserve and keep available, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to issue
the Conversion Shares.  The number of
shares so reserved shall be increased or decreased to reflect adjustments in
the number of Conversion Shares issuable upon conversion of the Shares.


 


5.3.         Exchange Act Registration. 
The Company will maintain the registration of its Common Stock under
Section 12 of the Exchange Act, will comply in all respects with its
reporting and filing obligations under the Exchange Act, and will not take any
action or file any document (whether or not permitted by the Exchange Act or
the rules thereunder) to terminate or suspend such registration or to terminate
or suspend its reporting and filing obligations under said Act, until the date
which is two years from the Closing Date.


 


5.4.         Listing of Common Stock. 
The Company shall prepare and file with the NASDAQ Capital Market an
additional shares listing application covering a reasonable estimate of the
Conversion Shares issuable upon conversion of the Shares.  In addition, if at any time the number of
Conversion Shares issuable upon conversion of the Shares is greater than the
number of shares of Common Stock theretofore listed on the NASDAQ Capital
Market, the Company shall promptly take such action to file an additional
shares listing application covering such additional number of shares of Common
Stock.


 


5.5.         Increase in Authorized Shares. 
As such time as the Company would be, if all outstanding Shares were immediately
converted, precluded from honoring the conversion of the Shares in full due to
the unavailability of a sufficient number of shares of authorized but unissued
Common Stock, the Board of Directors of the Company shall promptly (an in any
case within 90 days from such date) hold a stockholders meeting in which the
stockholders would vote to amend the Company’s Articles of Incorporation to
increase the number of shares of Common Stock which the Company is authorized
to issue to at least a number of shares equal to the sum of (i) all shares
of Common Stock then outstanding, (ii) the number of shares of Common
Stock issuable on account of all outstanding warrants, options, and convertible
securities (other than the Shares) and on account of all shares reserved under
any stock option, stock purchase, or similar plan, and (iii) such number
of Conversion Shares as would then be issuable upon conversion of all
outstanding Shares.


 


12

















 


6.                                      CONDITIONS
TO CLOSING.


 


6.1.         Conditions to Purchasers’ Obligations
at the Closing.  The Purchasers’ obligations to purchase the
Shares at the Closing are subject to the satisfaction, at or prior to the
Closing Date, of the following conditions:


 


(a)           Representations and Warranties True;
Performance of Obligations. 
The representations and warranties made by the Company in Section 3
hereof shall be true and correct in all material respects as of the Closing
Date with the same force and effect as if they had been made as of the Closing
Date, and the Company shall have performed in all material respects, all
obligations and conditions herein required to be performed or observed by it on
or prior to the Closing.


 


(b)           Legal Investment.  On the Closing Date, the
sale and issuance of the Shares and the proposed issuance of the Conversion
Shares shall be legally permitted by all laws and regulations to which the
Purchasers and the Company are subject.


 


(c)           Consents, Permits, and Waivers.  The Company shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by this Agreement and the Registration Rights
Agreement (except for such as may be properly obtained subsequent to the
Closing).


 


(d)           Articles of Amendment of
Series F Convertible Preferred Stock.  The Articles of Amendment shall have been
filed with the Secretary of State of the State of Oregon and shall continue to
be in full force and effect as of the Closing Date.


 


(e)           Corporate Documents.  The Company shall have delivered to the
Purchasers or their counsel copies of all corporate documents of the Company as
the Purchasers shall reasonably request.


 


(f)            Reservation of Conversion Shares.  The Conversion Shares issuable upon
conversion of the Shares shall have been duly authorized and reserved for
issuance upon such conversion.


 


(g)           Compliance Certificate.  The Company shall have delivered to the
Purchasers a Compliance Certificate, executed by the President of the Company,
dated the Closing Date, to the effect that the conditions specified in
subsections (a) through (f) of this Section 6.1 have been
satisfied.


 


(h)           Secretary’s Certificate.
The Purchasers shall have received from the Company’s Secretary, a certificate
having attached thereto (i) the Company’s Restated Articles of
Incorporation as in effect at the time of the Closing, which Restated Articles
of Incorporation shall include the Articles of Amendment, (ii) the
Company’s bylaws as in effect at the time of the Closing, (iii) the
resolutions approved by the Board of Directors of the Company authorizing the
transactions contemplated hereby, and (iv) good standing certificates with
respect to the Company from the applicable authority(ies) in Oregon and any
other jurisdiction in which the Company is qualified to do business, dated a
recent date before the Closing.


 


(i)            Registration Rights Agreement.  The Registration Rights Agreement
substantially in the form attached hereto as
Exhibit C shall have been executed and delivered by the parties
thereto.


 


(j)            Legal Opinion.  The Purchasers shall have
received from Stoel Rives LLP, legal counsel to the Company, an opinion
addressed to them, dated as of the Closing Date, in substantially the form
attached hereto as Exhibit D.


 


(k)           Proceedings and Documents.  All corporate and other proceedings in
connection with the transactions contemplated at the Closing hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchasers and their counsel, and the
Purchasers and their counsel shall have received all such counterpart originals
or certified or other copies of such documents as they may reasonably request.


 


13

















 


6.2.         Conditions to Obligations of the
Company at the Closing.  The Company’s obligation to issue and sell
the Shares is subject to the satisfaction, on or prior to the Closing, of the
following conditions:


 


(a)           Representations and Warranties True.  The representations and warranties in Section 4
made by the Purchasers shall be true and correct in all material respects at
the date of the Closing, with the same force and effect as if they had been
made on and as of said date.


 


(b)           Performance of Obligations.  The Purchasers shall have performed and
complied with all agreements and conditions herein required to be performed or
complied with by Purchasers on or before the Closing.


 


(c)           Registration Rights Agreement.
The Registration Rights Agreement substantially in the form attached hereto as Exhibit C shall have been executed and
delivered by the Purchasers.


 


(d)           Consents, Permits, and Waivers.  The Company shall have obtained any and all
consents, permits and waivers necessary or appropriate for consummation of the
transactions contemplated by the Agreement and the Registration Rights
Agreement.


 


7.                                      MISCELLANEOUS.


 


7.1.         Governing Law.  This Agreement shall be governed in all
respects by the laws of the State of Oregon, without reference to principles of
conflict of laws.


 


7.2.         Survival.  The representations, warranties, covenants,
and agreements made herein shall survive any investigation made by the
Purchasers and the closing of the transactions contemplated hereby for a period
of two years following the Closing Date. All statements as to factual matters
contained in any certificate or other instrument delivered by or on behalf of
the Company pursuant hereto in connection with the transactions contemplated
hereby shall be deemed to be representations and warranties by the Company
hereunder solely as of the date of such certificate or instrument.


 


7.3.         Attorneys’ Fees.  In the
event that any suit or action is instituted to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing any right of
such prevailing party under or with respect to this Agreement, including
without limitation, such reasonable fees and expenses of attorneys and accountants,
which shall include, without limitation, all fees, costs and expenses of
appeals.


 


7.4.         Successors and Assigns.  Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.


 


7.5.         Entire Agreement.  This Agreement, the exhibits and schedules
hereto, the Registration Rights Agreement and the other documents delivered
pursuant hereto, all of even date herewith between the parties hereto,
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and no party shall be liable or bound to any
other in any manner by any representations, warranties, covenants and
agreements except as specifically set forth herein and therein.


 


7.6.         Severability.  In case any provision of the Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.


 


14

















 


7.7.         Amendment
and Waiver.


 


(a)           This Agreement may
be amended or modified only upon the written consent of the Company and holders
of at least a majority of the Shares (treated as if converted and including any
Conversion Shares into which the Shares have been converted that have not been
sold to the public).


 


(b)           The obligations of
the Company and the rights of the holders of the Shares and the Conversion
Shares under this Agreement may be waived only with the written consent of the
holders of at least a majority of the Shares (treated as if converted and
including any Conversion Shares into which the Shares have been converted that
have not been sold to the public). The rights of the Company under this
Agreement may be waived only by the prior written consent of the Company.


 


7.8.         Delays or Omissions.  It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, the
Registration Rights Agreement or the Articles of Amendment, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring.  It is further agreed that any waiver, permit,
consent or approval of any kind or character on the Purchasers’ part of any
breach, default or noncompliance under this Agreement, the Registration Rights
Agreement or under the Articles of Amendment or any waiver on such party’s part
of any provisions or conditions of this Agreement, the Registration Rights
Agreement or the Articles of Amendment must be in writing and shall be
effective only to the extent specifically set forth in such writing.  All remedies, either under this Agreement,
the Registration Rights Agreement, the Articles of Amendment, by law, or
otherwise afforded to any party, shall be cumulative and not alternative;
provided, however, that Purchaser may not recover monetary damages under more
than one remedy for any give breach, default or non-compliance.


 


7.9.         Notices.  All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (c) five days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one day after deposit with a nationally recognized
overnight courier, specifying next day delivery, with written verification of
receipt.  All communications shall be
sent to the Company at the address as set forth on the signature page hereof
and to the Purchasers at the addresses set forth on Exhibit A attached hereto or at such other address as the
Company or the Purchasers may designate by ten days advance written notice to
the other parties hereto.


 


7.10.       Titles and Subtitles. 
The titles of the sections and subsections of the Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.


 


7.11.       Counterparts.  This Agreement may be executed in any number
of counterparts (including by facsimile), each of which shall be an original,
but all of which together shall constitute one instrument.


 


7.12.       Broker’s Fees.  Each party hereto represents and warrants
that no agent, broker, investment banker, person or firm acting on behalf of or
under the authority of such party hereto is or will be entitled to any broker’s
or finder’s fee or any other commission directly or indirectly in connection
with the transactions contemplated herein. 
Each party hereto further agrees to indemnify each other party for any
claims, losses or expenses incurred by such other party as a result of the
representation in this Section 7.13 being untrue.


 


7.13.       Public
Announcements and Confidentiality.


 


(a)           Any public
announcement, press release, or similar publicity with respect to this
Agreement or the Registration Rights Agreement will be issued, if at all, at
such time and in such manner as the Purchasers and the Company mutually
determine. Except with the prior consent of the Purchasers or as permitted by
this Agreement, neither the Company, its shareholders, nor any of their
representatives shall disclose to any person (a) the fact that any
confidential information of the Company has been disclosed to the Purchasers or
their representatives, that the Purchasers or their representatives have
inspected any confidential information of the Company, that any confidential
information of the Company has been disclosed to the Purchasers or (b) any



 


15

















 


information about the this Agreement and the
Registration Rights Agreement, including the status of such discussions or
negotiations, the execution of any documents (including this Agreement) or any
of the terms of this Agreement or the Registration Rights Agreement.  The Company shall not use the names of any of
the Purchasers in any manner, context or format (including, but not limited to,
websites or links to websites, press releases, dealing with the Company’s
customers, suppliers, and employees) without the prior review and express
written consent of the Purchasers. 
Notwithstanding anything in this section to the contrary, the Company
may make any disclosures with respect to this Agreement and the transactions
contemplated hereby as are required by law or the rules of the NASDAQ
Capital Market without consent of the Purchasers.


 


(b)           Each party hereto
agrees that, except with the prior written consent of the other party, it shall
at all times keep confidential and not divulge, furnish or make accessible to
anyone any confidential information, knowledge or data concerning or relating
to the business or financial affairs of the other parties to which such party
has been or shall become privy by reason of this Agreement or the Registration
Rights Agreement, discussions or negotiations relating to this Agreement or the
Registration Rights Agreement, the performance of its obligations hereunder or
the ownership of the Shares purchased hereunder.  The provisions of this Section 7.13
shall be in addition to, and not in substitution for, the provisions of any
separate nondisclosure agreement executed by the parties hereto.  Notwithstanding any other express or implied
agreement or understanding to the contrary, the parties hereto and their
respective employees, representatives, and other agents are authorized to
disclose the tax treatment and tax structure of the transactions contemplated
by this Agreement to any and all persons, without limitation of any kind.  The recipient and each other party may
disclose all materials of any kind (including opinions or other tax analyses)
to the extent (but only to the extent) that they relate to the tax treatment or
tax structure of the transactions contemplated by this Agreement.  This authorization is not intended to permit
disclosure of any other information including (without limitation) (a) any
portion of any materials to the extent not related to the tax treatment or the
tax structure of the transactions, (b) the identities of participants or
potential participants in the transactions, (c) the existence or status of
any negotiations, (d) any pricing information, (e) any financial,
actuarial or insurance underwriting information relating to the parties hereto,
or (f) any other term or detail not related to the tax treatment or tax
structure of the transactions.


 


7.14.       Purchasers Business Activities.  The Company and each Purchaser hereby
acknowledge that some of the Purchasers may be professional investment funds
and, therefore, invest in numerous portfolio companies, some of which may be in
direct or indirect competition with the Company.  No Purchaser shall be liable to the Company
or to any other Purchaser for any claim arising out of, or based upon,
(i) the investment by any Purchaser in any entity competitive with the
Company, or (ii) actions taken by a partner, officer, or representative of
any Purchaser that may assist such competitive entity, whether or not such
action was taken as a board member, officer, investor in such company or
otherwise, and whether or not such action has a detrimental effect on the
Company (unless such action involves a breach of Section 7.13(b)).


 


7.15.       Exculpation Among Purchasers. 
Each Purchaser acknowledges that it is not relying upon any person,
firm, or corporation, other than the Company and its officers and directors, in
making its investment or decision to invest in the Company.  Each Purchaser agrees that no Purchaser nor
the respective controlling persons, officers, directors, partners, agents, or
employees of any Purchaser shall be liable to any other Purchaser for any
action heretofore or hereafter taken or omitted to be taken by any of them in
connection with the Shares and Conversion Shares.


 


7.16.       Pronouns.  All pronouns contained
herein, and any variations thereof, shall be deemed to refer to the masculine,
feminine or neutral, singular or plural, as to the identity of the parties
hereto may require.


 


[Signature
Pages Follow]


 


16

















 


In Witness Whereof, the
parties hereto have executed the Purchase
Agreement as of the date set forth in the first paragraph hereof.


 


	
  COMPANY:

  
	
   

  
	
  BIOJECT MEDICAL.

  TECHNOLOGIES INC.

  
	
   

  
	
   

  
	
  By:

  	
  /s/Ralph Makar

  	
   

  
	
  Name:

  	
  Ralph Makar 

  	
   

  
	
  Title:

  	
  President and Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
  20245 S.W. 95th Avenue

  Tualatin, Oregon 97062

  
	
   

  	 

	
  INVESTORS:

  	 

	
   

  	 

	
   

  	 

	
  /s/Edward L. Flynn

  	
   

  	 

	
  Edward L. Flynn

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  /s/Ralph Makar

  	
   

  	 

	
  Ralph Makar

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  /s/David Tierney

  	
   

  	 

	
  David Tierney

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  /s/Richard Stout

  	
   

  	 

	
  Richard Stout

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
  /s/Christine Farrell

  	
   

  	 

	
  Christine Farrell

  	
   

  	 

							



 


Signature Page to


Series F Convertible
Preferred Stock Purchase Agreement


 

















 


Exhibit A


 


SCHEDULE
OF PURCHASERS


 


	
  Name and Address

  	
   

  	
  Shares

  	
   

  	
  Principal

  Amount

  of Note

  	
   

  	
  Accrued

  Interest thru

  1/22/08

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Edward L. Flynn

  20245 S.W. 95th Ave.

  Tualatin, OR 97062

  	
   

  	
  6,760

  	
   

  	
  $

  	
  500,000

  	
   

  	
  $

  	
  7,000

  	
   

  
	
  Ralph
  Makar

  20245 S.W. 95th
  Ave.

  Tualatin, OR
  97062

  	
   

  	
  676

  	
   

  	
  $

  	
  50,000

  	
   

  	
  $

  	
  700

  	
   

  
	
  David
  Tierney

  20245 S.W. 95th
  Ave.

  Tualatin, OR
  97062

  	
   

  	
  676

  	
   

  	
  $

  	
  50,000

  	
   

  	
  $

  	
  700

  	
   

  
	
  Richard
  Stout

  20245 S.W. 95th
  Ave.

  Tualatin, OR
  97062

  	
   

  	
  101

  	
   

  	
  $

  	
  7,500

  	
   

  	
  $

  	
  75

  	
   

  
	
  Christine
  Farrell

  20245 S.W. 95th
  Ave.

  Tualatin, OR
  97062

  	
   

  	
  101

  	
   

  	
  $

  	
  7,500

  	
   

  	
  $

  	
  75

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  8,314

  	
   

  	
  $

  	
  615,000

  	
   

  	
  $

  	
  8,550

  	
   

  



 


A-1