ex4-3



 



EXHIBIT 4.3


REGISTRATION RIGHTS AGREEMENT


     This Agreement is made as of December 19, 2001 by and among BIOJECT
MEDICAL TECHNOLOGIES INC., an Oregon corporation (the “Corporation”), and
Leerink Swann & Company (“Leerink”).


RECITALS


     Simultaneously herewith, the Corporation has issued a Series “Y” Common
Stock Purchase Warrant to Leerink to purchase up to an aggregate of 17,500
shares of the Corporation’s Common Stock (the “Warrant”).


AGREEMENT


     NOW, THEREFORE, it is hereby agreed as follows:


1. Certain Definitions


     As used in this Agreement, the following terms shall have the following
respective meanings:


          “Common Stock” shall mean shares of common stock, without par value, of
the Corporation.



          “Commission” shall mean the Securities and Exchange Commission.



          “Holder” shall mean the holders of Registrable Securities and any person
holding such securities to whom the rights under this Agreement have been
transferred in accordance with Section 2.8 hereof.



          “Registrable Securities” means (i) all shares of the Corporation’s Common
Stock issued and/or issuable upon exercise of the Warrant (the “Shares”), and
(ii) any Common Stock or other securities of the Corporation issued or issuable
with respect to, or in exchange for or in replacement of the Shares or such
additional shares upon any stock split, stock dividend, recapitalization, or
similar event; provided, however, that shares of Common Stock or other
securities shall only be treated as Registrable Securities for the purposes of
Section 2 hereof if and so long as they have not been sold pursuant to Rule 144
under the Securities Act or pursuant to an effective Registration Statement
under the Securities Act, or otherwise to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction.



          The terms “register,” “registered” and “registration” refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.



          “Registration Expenses” shall mean all expenses, except as otherwise
stated below, incurred by the Corporation in complying with Section 2 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Corporation and one special counsel to the selling Holders, blue sky fees and
expenses, fees to Nasdaq to list the Shares or American Stock Transfer and
Trust Company to issue the Shares, and the expense of any special audits
incident to or required by any such registration.



          “Securities Act” shall mean the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.



          “Selling Expenses” shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the selling Holders that are incurred by the selling Holders.



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2. Registration Rights


     2.1 Company Registration


          (a) Notice of Registration. If at any time or from time to time the
Corporation shall determine to register any of its securities, either for its
own account or the account of a security holder or holders, other than a
registration relating solely to employee benefit plans or a registration
relating solely to a Commission Rule 145 transaction, the Corporation will:



               (i) promptly give to each Holder written notice thereof; and



               (ii) subject to Section 2.1(b), include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests made within 20 days after receipt of such written
notice from the Corporation, by any Holder.



          (b) Underwriting. If the registration of which the Corporation gives
notice is for a registered public offering involving an underwriting, the
Corporation shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1(a) hereof. In such event the right of any Holder to
registration pursuant to this Section 2.1 shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Corporation) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Corporation. Notwithstanding any other provision of this Section 2.1, if
the managing underwriter determines that marketing factors require a limitation
of the number of shares to be underwritten, the managing underwriter may limit
the Registrable Securities and other securities to be distributed through such
underwriting for the account of the requesting Holders (including persons other
than Holders with registration rights relating to the Corporation’s Common
Stock who have requested to participate in the underwritten offering (“Other
Holders”)) to 20% of the total number of shares to be distributed. The
Corporation shall so advise all Holders distributing their securities through
such underwriting of such limitations and the number of shares of Registrable
Securities, if any, that may be included in the registration (and underwriting,
if any) shall be allocated among all Holders (including the Other Holders) in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities and securities held by the Other Holders requested by such persons
to be included in such Registration Statement. To facilitate the allocation of
shares in accordance with the above provisions, the Corporation may round the
number of shares allocated to any Holder or holder to the nearest 100 shares.



          (c) Right to Terminate Registration. The Corporation shall have the right
to terminate or withdraw any registration initiated by it under this Section
2.1 prior to the effectiveness of such registration whether or not any Holder
has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Corporation in
accordance with Section 2.3 hereof.



     2.2 Expenses of Registration


     All Registration Expenses incurred in connection with registration
pursuant to Section 2.1 shall be borne by the Corporation. All Selling
Expenses relating to securities registered on behalf of the Holders shall be
borne by the Holders of securities included in such registration pro rata,
severally and not jointly, among each other on the basis of the number of
shares so registered.


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     2.3 Registration Procedures


     In the case of each registration effected by the Corporation pursuant to
this Section 2, the Corporation will keep each Holder advised in writing as to
the initiation of each registration and as to the completion thereof. At its
expense the Corporation will:


          (a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for at least two (2) years or, if
earlier, until the distribution described in the registration statement has
been completed;



          (b) Prepare and file with the Commission during the period specified in
Section 2.4(a) such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such registration statement;



          (c) Furnish to the Holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents as the Holders and such underwriters may reasonably
request in order to facilitate the public offering of such securities;



          (d) Furnish, at the request of any Holder requesting registration of
Registrable Securities at the time such securities are delivered to the
underwriters (if any) for sale in connection with a registration pursuant to
this Section 2, (i) an opinion, dated such date, of the counsel representing
the Corporation for the purposes of such registration, in form and substance as
is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated the date of commencement of the
offering and a “bring-down” letter dated as of the closing date of such
offering, from the independent accountants of the Corporation, in form and
substance as is customarily given by independent accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities;



          (e) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders; provided
that the Corporation shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Corporation
is already subject to service in such jurisdiction and except as may be
required by the Securities Act;



          (f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act as a result of the happening
of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing;



          (g) Cause all such Registrable Securities registered by such registration
statement to be listed on each securities exchange and quotations system on
which similar securities issued by the Corporation are then listed or quoted.



     2.4 Indemnification


          (a) The Corporation will indemnify each Holder and each person controlling
such Holder within the meaning of Section 15 of the Securities Act, with
respect to which registration has been effected pursuant to

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this Section 2, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Corporation of the Securities Act
or any other applicable federal and state securities laws or any rules or
regulations promulgated thereunder in connection with any such registration,
qualification or compliance, and the Corporation will reimburse each such
Holder, each of its officers, directors, partners, and legal counsel and each
person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Corporation will
not be liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Corporation by such
Holder, controlling person or underwriter and stated to be specifically for use
therein.



          (b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Corporation, each of its directors
and officers, each underwriter, if any, of the Corporation’s securities covered
by such a registration statement, each person who controls the Corporation or
such underwriter within the meaning of Section 15 of the Securities Act, and
each other Holder, each of its officers and directors, and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Corporation, such Holders, and such directors, officers, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Corporation by such Holder and stated to be specifically for
use therein. Notwithstanding the foregoing, the liability of each Holder under
this subsection (b) shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the public
offering price of the shares sold by such Holder under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not to exceed the net proceeds received by such Holder from the
sale of Registrable Securities covered by such registration statement.



          (c) Each party entitled to indemnification under this Section 2.4 (the
“Indemnified Party”) shall give notice to the party required to provide
indemnification (the “Indemnifying Party”) promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation
resulting therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party’s expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve
the Indemnifying Party of its obligations under this Section 2 unless the
failure to give such notice is materially prejudicial to an Indemnifying
Party’s ability to defend such action and provided further, that the
Indemnifying Party shall not assume the defense for matters as to which there
is a conflict of interest or separate and different defenses but shall bear the
expense of such defense nevertheless. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
No

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Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Notwithstanding the other provisions of this Agreement, no
Indemnifying Party shall be obligated to indemnify any Indemnified Party for
amounts paid by the Indemnified Party in settlement of any loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Indemnifying Party (which consent has not been unreasonably withheld).



          (d) If the indemnification provided for in paragraphs (a) through (c) of
this Section 2.4 is unavailable or insufficient to hold harmless an Indemnified
Party under such paragraphs in respect of any losses, claims, damages,
liabilities, expenses or actions in respect thereof referred to therein, then
each Indemnifying Party shall in lieu of indemnifying such Indemnified Party
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Corporation, the underwriters,
and the Holder of such Registrable Securities, respectively, in connection with
the statements or omissions which resulted in such losses, claims, damage,
liabilities, expenses or actions in respect thereof as well as any other
relevant equitable considerations, including the failure to give any notice
under paragraph (c). The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Corporation, on the one
hand, or the underwriters or the Holders of such Registrable Securities, on the
other, and to the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Corporation and each of the Holders agrees that it would not be just and
equitable if contributions pursuant to this paragraph were determined by pro
rata allocation (even if all of the Holders of such Registrable Securities were
treated as one entity for such purpose) or by any other method of allocation
which did not take account of the equitable considerations referred to above in
this paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities or action in respect thereof,
referred to above in this paragraph, shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this paragraph, no Holder shall be required to contribute any
amount in excess of the lesser of (i) the proportion that the public offering
price of shares sold by such Holder under such registration statement bears to
the total public offering price of all securities sold thereunder, but not to
exceed the proceeds received by such Holder for the sale of Registrable
Securities covered by such registration statement and (ii) the amount of any
damages which they would have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.



          (e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement (if
any) entered into in connection with an underwritten public offering of the
Registrable Securities are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.



     2.5 Information by Holder


     The Holder or Holders of Registrable Securities included in any
registration shall furnish to the Corporation such information regarding such
Holder or Holders, the Registrable Securities held by them and the distribution
proposed by such Holder or Holders as the Corporation may reasonably request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 2.


     2.6 Rule 144 Reporting


     With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of the
Registrable Securities to the public without registration, the Corporation
agrees to use its best efforts to:


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          (a) At all times make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act;



          (b) File with the Commission in a timely manner all reports and other
documents required of the Corporation under the Securities Act and the
Securities Exchange Act of 1934, as amended;



          (c) So long as a Holder owns any Registrable Securities to furnish to the
Holder forthwith upon request a written statement by the Corporation as to its
compliance with the reporting requirements of said Rule 144, and of the
Securities Act and the Securities Exchange Act of 1934, a copy of the most
recent annual or quarterly report of the Corporation, and such other reports
and documents of the Corporation and other information in the possession of or
reasonably obtainable by the Corporation as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a Holder
to sell any such securities without registration.



     2.7 Transfer of Registration Rights


     The rights to cause the Corporation to register securities granted to
Holders under this Section 2 may be assigned (a) to a transferee or assignee in
connection with any transfer or assignment of Registrable Securities by a
Holder of not less than 15,000 shares of Registrable Securities (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reverse stock splits, and the like), or (b) to the estate of a
Holder, provided in each case that such transfer may otherwise be effected in
accordance with applicable securities laws and written notice of the transfer
is given to the Corporation at the time of or within a reasonable time after
such transfer or assignment, stating the name and address of the transferee or
assignee and identifying the Registrable Securities with respect to which such
registration rights are being transferred or assigned, and provided, further,
that the transferee or assignee of such rights agrees in writing to be bound by
the terms of this Agreement as if such transferee were a party hereto.


     2.8 Standoff Agreement


     Each Holder agrees, in connection with registered public offerings of the
Corporation’s securities for the account of the Corporation, upon request of
the Corporation or the underwriters managing any underwritten offering of the
Corporation’s securities, not to sell, make any short sale of or otherwise
dispose of any Registrable Securities (other than those included in the
registration) without the prior written consent of the Corporation or such
underwriters, as the case may be, for such period of time (not to exceed 180
days in the case of other public offerings) from the effective date of such
registration as may be requested by the underwriters, provided that the
officers and directors of the Corporation who own stock of the Corporation also
agree to such restrictions.


     2.9 Termination of Registration Rights


     The rights granted under this Section 2 shall terminate one (1) year from
the later of the exercise in full or termination of the Warrant.


     2.10 Delay of Registration


     No Holder or Holders shall have any right to take any action to restrain,
enjoin, or otherwise delay any registration as a result of any controversy that
might arise with respect to the interpretation or implementation of this
Section 2.


     2.11 Use of Form S-3


     With a view to maintaining its eligibility to use Form S-3, the
Corporation agrees to use its best efforts to file with the Commission in a
timely manner (i) all the material required to be filed pursuant to Sections
13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and (ii)
all reports and other documents required to be filed by the


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Corporation under
the Securities Act and the Securities Exchange Act of 1934, as amended;
provided, however, that
there can be no assurance that the Corporation will remain eligible for use of
Form S-3 or that any Form S-3 filed by the Corporation with respect to the
Registrable Securities will be declared effective.


3. Miscellaneous


     3.1 Waivers and Amendments


     With the written consent of both the Corporation and Holders of a majority
of outstanding Registrable Securities originally acquired by Leerink then held
by Holders (voting together as a class), the obligations of the Corporation and
the rights of such Holders of Registrable Securities under this Agreement may
be waived (either generally or in a particular instance, and either for a
specified period of time or indefinitely), and with the same consent the
Corporation, when authorized by resolution of its Board of Directors, may enter
into a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement.
Neither this Agreement nor any provisions hereof may be changed, waived,
discharged or terminated orally, other than by a signed statement in writing.


     3.2 Governing Law


     This Agreement shall be governed in all respects by the laws of the State
of Oregon as such laws are applied to agreements between Oregon residents
entered into and to be performed entirely within Oregon.


     3.3 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.


     3.4 Entire Agreement


     This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof.


     3.5 Notices


     All notices and other communications required or permitted hereunder shall
be effective upon receipt and shall be in writing and may be delivered in
person, by telecopy, electronic mail, overnight delivery service or U.S. mail,
in which event it may be mailed by first class, postage prepaid, addressed (a)
if to Leerink, at the address set forth on the signature page hereto, or at
such other address as the Holder shall have furnished to the Corporation, or
(b) if to the Corporation, at 7620 SW Bridgeport Road, Portland, Oregon 97224,
Attention: President, or at such other address as shall have furnished to the
Holders in writing. Notwithstanding the foregoing, all notices and
communications to addresses outside the United States shall be given by
telecopier and confirmed in writing sent by overnight or two-day courier
service.


     3.6 Titles and Subtitles


     The titles of the paragraphs and subparagraphs of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.


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     3.7 Litigation; Prevailing Party


     In the event of any litigation between the Corporation and Leerink with
regard to this Agreement, the prevailing party shall be entitled to
reimbursement from the nonprevailing party for all reasonable fees and expenses
of counsel for the prevailing party.


     3.8 Nominees


     Securities registered in the name of a nominee for a Holder shall, for
purposes of this Agreement, be treated as being owned by such Holder.


     3.9 Counterparts


     This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument. Delivery of a signed counterpart by and between telephone
facsimile transmission shall between effective as delivery of a manually signed
counterpart of this Agreement.


     IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date set forth above.

	 	 	 
	 	BIOJECT MEDICAL TECHNOLOGIES INC.
	 
 
	 	By: 
	 	

	 	
Name: James C. O’Shea

Title: President and CEO





	 	 	 	 
	 	
Leerink Swann & Company
	 
	 	By:	 	 
	 	 	


	 	Name:	 	 
	 	 	


	 	Title:	 	 
	 	 	






	 	 	 
	 	Address:	
60 State Street

15th Floor

Boston, MA 02019

Attention: Stuart R. Barich


	 	 	 
	 	Telecopy: (617) 918-4724




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