ex4-5



 



EXHIBIT 4.5


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.


SERIES “X” COMMON STOCK PURCHASE WARRANT


Bioject Medical Technologies Inc.


     Warrant No. X-1


     THIS CERTIFIES that for good and valuable consideration received, H.C.
Wainwright & Co., Inc., 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
78,240 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 $11.99.


1. Term of Warrant


     Subject to the terms and conditions set forth herein, this Warrant shall
be exercisable, in whole or from time to time part, at any time on or after the
date hereof and at or prior to 11:59 p.m., Pacific Standard Time, on May 23,
2006 (the “Expiration Time”).


2. Exercise of Warrant


     The purchase rights represented by this Warrant are exercisable by the
registered holder hereof, in whole or in part, at any time and from time to
time at or prior to the Expiration Time by the surrender of this Warrant and
the Notice of Exercise form attached hereto duly executed to the office of the
Corporation at 7620 S.W. Bridgeport Road, Portland, Oregon 97224 (or such
other office or agency of the Corporation as it may designate by notice in
writing to the registered holder hereof at the address of such holder appearing
on the books of the Corporation), and upon payment of the Exercise Price for
the shares thereby purchased (by cash or by check or bank draft payable to the
order of the Corporation or by cancellation of indebtedness of the Corporation
to the holder hereof, if any, at the time of exercise in an amount equal to the
purchase price of the shares thereby purchased); whereupon the holder of this
Warrant shall be entitled to receive from the Corporation a stock certificate
in proper form representing the number of shares of Warrant Stock so purchased.


 








 


3. Issuance of Shares; No Fractional Shares of Scrip


     Certificates for shares purchased hereunder shall be delivered to the
holder hereof by the Corporation’s transfer agent at the Corporation’s expense
as promptly as practicable, but in any event within five (5) business days,
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.
Notwithstanding the foregoing, if: (i)the Corporation shall declare a dividend
(or any other distribution) on its Common Stock; or (ii) the Corporation shall
declare a special nonrecurring cash dividend on or a redemption of its Common
Stock; or (iii) the Corporation shall authorize the granting to all holders of
the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights; or (iv) the approval of any
stockholders of the Corporation shall be required in connection with any
reclassification of the Common Stock, any consolidation or


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merger to which the Corporation is a party, any sale or transfer of all or
substantially all of the assets of the Corporation, or any compulsory share
exchange whereby the Common Stock is converted into other securities, cash or
property; or (v) the Corporation shall authorize the voluntary dissolution,
liquidation or winding up of the affairs of the Corporation, then the
Corporation shall cause to be mailed to each Holder at their last addresses as
they shall appear upon the Warrant Register, at least 20 calendar days prior to
the applicable record or effective date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be
taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up; provided, however, that the failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity of the
corporate action required to be specified in such notice.


6. Registration Rights


     This Warrant is a Warrant identified in the Subscription Agreement dated
as of September 19, 2001 between the Corporation and the party listed on the
signature page thereto and is entitled to the benefits thereof. A transferee
of this Warrant may become a “Holder” as defined in such agreement upon
compliance with the requirements of such agreement.


7. 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.


8. 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.


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9. 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.


10. Merger, Sale of Assets, Etc.


     If at any time the Corporation proposes to merge or consolidate with or
into any other corporation, effect any reorganization, or sell or convey all or
substantially all of its assets to any other entity, then, as a condition of
such reorganization, consolidation, merger, sale or conveyance, the Corporation
or its successor, as the case may be, shall enter into a supplemental agreement
to make lawful and adequate provision whereby the holder shall have the right
to receive, upon exercise of the Warrant, the kind and amount of equity
securities which would have been received upon such reorganization,
consolidation, merger, sale or conveyance by a holder of a number of shares of
common stock equal to the number of shares issuable upon exercise of the
Warrant immediately prior to such reorganization, consolidation, merger, sale
or conveyance. If the property to be received upon such reorganization,
consolidation, merger, sale or conveyance is not equity securities, the
Corporation shall give the holder of this Warrant twenty (20) business days
prior written notice of the proposed effective date and a brief statement of
the facts of such transaction (including the consideration to be paid), and if
this Warrant has not been exercised by or on the effective date of such
transaction, it shall terminate.


11. Subdivision, Combination, Reclassification, Conversion, Etc.


     If the Corporation at any time shall pay a stock dividend or otherwise
make a distribution on shares of its common stock or on any other class of
capital stock payable in shares of its common stock (any such event hereafter
referred to as a “common stock distribution”), or by subdivision, combination,
reclassification of securities or otherwise, change the Warrant Stock into the
same or a different number of securities of any class or classes, this Warrant
shall thereafter entitle the holder to acquire such number and kind of
securities as would have been issuable in respect of the Warrant Stock (or
other securities which were subject to the purchase rights under this Warrant
immediately prior to such common stock distribution, subdivision, combination,
reclassification or other change) as the result of such change if this Warrant
had been exercised in full for cash immediately prior to such change. The
Exercise Price hereunder shall be adjusted if and to the extent necessary to
reflect such change. If the Warrant Stock or other securities issuable upon
exercise hereof are subdivided or combined into a greater or smaller number of
shares of such security, the number of shares issuable hereunder shall be
proportionately increased or decreased, as the case may be, and the Exercise
Price shall be proportionately reduced or increased, as the case may be, in
both cases according to the ratio which the total number of shares of such
security to be outstanding immediately after such event bears to the total
number of shares of such security outstanding immediately prior to such event.
The Corporation shall give the holder prompt written notice of any change in
the type of securities issuable hereunder, any adjustment of the Exercise Price
for the securities issuable hereunder, and any increase or decrease in the
number of shares issuable hereunder.


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12. Transferability; Compliance with Securities Laws


     (a)  This Warrant may not be transferred or assigned in whole or in part
without compliance with all applicable federal and state securities laws by the
transferor and transferee (including the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Corporation, if
requested by the Corporation). Subject such restrictions, prior to the
Expiration Time, this Warrant and all rights hereunder are transferable by the
holder hereof, in whole or in part, at the office or agency of the Corporation
referred to in Section 1 hereof. Any such transfer shall be made in person or
by the holder’s duly authorized attorney, upon surrender of this Warrant
together with the Assignment Form attached hereto properly endorsed.


     (b)  The Holder of this Warrant, by acceptance hereof, acknowledges that
this Warrant and the Warrant Stock issuable upon exercise hereof are being
acquired solely for the holder’s own account and not as a nominee for any other
party, and for investment, and that the holder will not offer, sell or
otherwise dispose of this Warrant or any shares of Warrant Stock to be issued
upon exercise hereof except under circumstances that will not result in a
violation of the Securities Act of 1933, as amended, or any state securities
laws. Upon exercise of this Warrant, the holder shall, if requested by the
Corporation, confirm in writing, in a form satisfactory to the Corporation,
that the shares of Warrant Stock so purchased are being acquired solely for
holder’s own account and not as a nominee for any other party, for investment,
and not with a view toward distribution or resale except under circumstances
that will not result in a violation of the Securities Act of 1933, as amended,
or any state securities laws.


     (c)  The Warrant Stock has not been registered under the Securities Act of
1933, as amended, and this Warrant may not be exercised except by (i) the
original purchaser of this Warrant from the Corporation or (ii) an “accredited
investor” as defined in Rule 501(a) under the Securities Act of 1933, as
amended. If then required by applicable securities laws, each certificate
representing the Warrant Stock or other securities issued in respect of the
Warrant Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall be stamped or otherwise imprinted with a
legend substantially in the following form (in addition to any legend required
under applicable securities laws):


     THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER UNITED
STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD
OR OTHERWISE TRANSFERRED OR ASSIGNED FOR VALUE, DIRECTLY OR INDIRECTLY, NOR MAY
THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE CORPORATION, WITHOUT
REGISTRATION OF SUCH SECURITIES UNDER ALL APPLICABLE UNITED STATES FEDERAL OR
STATE SECURITIES LAWS OR COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM.


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13. Representations and Warranties


     The Corporation hereby represents and warrants to the holder hereof that:


     (a)  during the period this Warrant is outstanding, the Corporation will
reserve from its authorized and unissued common stock a sufficient number of
shares to provide for the issuance of Warrant Stock upon the exercise of this
Warrant;


     (b)  the issuance of this Warrant shall constitute full authority to the
Corporation’s officers who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for the shares of
Warrant Stock issuable upon exercise of this Warrant;


     (c)  the Corporation has all requisite legal and corporate power to execute
and deliver this Warrant, to sell and issue the Warrant Stock hereunder, to
issue the common stock issuable upon exercise of the Warrant Stock and to carry
out and perform its obligations under the terms of this Warrant;


     (d)  all corporate action on the part of the Corporation, its directors and
shareholders necessary for the authorization, execution, delivery and
performance of this Warrant by the Corporation, the authorization, sale,
issuance and delivery of the Warrant Stock, the grant of registration rights as
provided herein and the performance of the Corporation’s obligations hereunder
has been taken;


     (e)  the Warrant Stock, when issued in compliance with the provisions of
this Warrant, will be validly issued, fully paid and nonassessable, and free of
all taxes, liens or encumbrances with respect to the issue thereof, and will be
issued in compliance with all applicable federal and state securities laws; and


     (f)  the issuance of the Warrant Stock will not be subject to any
preemptive rights, rights of first refusal or similar rights.


14. Corporation


     The Corporation will not, by amendment of its Articles of Incorporation or
through any reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Corporation, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may be necessary or appropriate
in order to protect the rights of the holder of the Warrant against impairment.


15. Governing Law


     This Warrant shall be governed by and construed in accordance with the
laws of the State of Oregon.


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     IN WITNESS WHEREOF, the Corporation has caused this Warrant to be executed
by its duly authorized officers.


Dated: September 19, 2001


BIOJECT MEDICAL TECHNOLOGIES INC.



	 	 	 	 
	By: 
       	 	 
	Name:

Title:	 	
James C. O’Shea

Chairman & Chief Executive Officer



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NOTICE OF EXERCISE


To: Bioject Medical Technologies Inc.


     (1)  The undersigned hereby elects to purchase      shares of common
stock of Bioject Medical Technologies Inc. pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase price in full,
together with all applicable transfer taxes payable by the undersigned pursuant
to the Warrant , if any.


     (2)  In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of common stock to be issued upon exercise hereof
are being acquired solely for the account of the undersigned and not as a
nominee for any other party, and for investment, and that the undersigned will
not offer, sell or otherwise dispose of any such shares of common stock except
under circumstances that will not result in a violation of the Securities Act
of 1933, as amended, or any state securities laws.


     (3)  Please issue a certificate or certificates representing said shares of
common stock in the name of the undersigned or in such other name as is
specified below:







(Name)










(Address)


     (4)  The undersigned represents that (a) he, she or it is the original
purchaser from the Corporation of the attached Warrant or an “accredited
investor” within the meaning of Rule 501(a) under the Securities Act of 1933,
as amended and (b) the aforesaid shares of common stock are being acquired for
the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned
has no present intention of distributing or reselling such shares except under
circumstances that will not result in a violation of the Securities Act of
1933, as amended, or any state securities laws.



	 	 	 
	
	 	


	(Date)	 	
(Signature)



 








 


ASSIGNMENT FORM


(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)


     FOR VALUE RECEIVED, the undersigned registered owner of this Warrant
hereby sells, assigns and transfers unto the Assignee named below all of the
rights of the undersigned under the within Warrant, with respect to the number
of shares of common stock of Bioject Medical Technologies Inc. set forth below:



	 	 	 	 	 
	Name of Assignee	 	
Address
	 	No. of Shares
	
	 	


	 	

	 
	 
	 



and does hereby irrevocably constitute and appoint Attorney
_____________________ to make such transfer on the books of Bioject Medical
Technologies Inc., maintained for the purpose, with full power of substitution
in the premises.


     The undersigned also represents that, by assignment hereof, the Assignee
acknowledges that this Warrant and the shares of stock to be issued upon
exercise hereof are being acquired for investment and that the Assignee will
not offer, sell or otherwise dispose of this Warrant or any shares of stock to
be issued upon exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended, or any state
securities laws. Further, the Assignee shall, if requested by the Corporation,
confirm in writing, in a form satisfactory to the Corporation, that the shares
of stock so purchased are being acquired for investment and not with a view
toward distribution or resale.



	 	Dated:___________________________________________





	 	Holder’s Signature:__________________________________
 




	 	Holder’s Address:




	 	





	 	




Guaranteed Signature:


NOTE: The signature to this Assignment Form must correspond with the name as
it appears on the face of the Warrant, without alteration or enlargement or any
change whatever, and must be guaranteed by a bank or trust company. Officers
of corporations and those action in a fiduciary or other representative
capacity should file proper evidence of authority to assign the foregoing
Warrant.


NYC 202998v3