EXHIBIT 4.1


 


THIRD AMENDMENT TO RIGHTS AGREEMENT


 


THIS THIRD AMENDMENT, dated as of March 8, 2006 (this “Third Amendment”),
is made between Bioject Medical Technologies Inc., an Oregon corporation (the “Company”),
and American Stock Transfer & Trust Company (the “Rights Agent”), to amend
the Rights Agreement, dated as of July 1, 2002, between the Company and
the Rights Agent, as amended by the First Amendment to Rights Agreement dated
as of October 8, 2002 and the Second Amendment to Rights Agreement dated as
of November 15, 2004 (the “Rights Agreement”).


 


WHEREAS, the Company and the Rights Agent have entered into the Rights
Agreement;


 


WHEREAS, the Board of Directors of the Company adopted resolutions on
March 3, 2006 to amend the Rights Agreement as stated below and in accordance
with Section 26 thereof; and


 


WHEREAS, the Company has directed the Rights Agent to adopt this Third
Amendment.


 


NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties agree as follows:


 


1.             Section
1(a) of the Rights Agreement is hereby amended in its entirety to read as
follows:


 


“(a)  “Acquiring Person” shall mean any Person (as
such term is defined in this Agreement) who or which, together with all
Affiliates and Associates (as such terms are defined in this Agreement) of such
Person, shall be the Beneficial Owner (as such term is defined in this
Agreement) of 15% or more of the shares of Common Stock then outstanding; provided,
however, that an Acquiring Person shall not include the Company,
any Subsidiary (as such term is defined in this Agreement) of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company, any
entity holding shares of Common Stock for or pursuant to the terms of any such
plan, or LOF Partners, LLC or its Affiliates and Associates (including Life
Sciences Opportunities Fund, L.P., Life Sciences Opportunities Fund II, L.P.
and Life Sciences Opportunities Fund II (Institutional), L.P.) (collectively, “LOF”).
Notwithstanding the foregoing, no Person shall be deemed to be an “Acquiring
Person” either (i) as the result of an acquisition of shares of Common Stock by
the Company which, by reducing the number of shares of Common Stock
outstanding, increases the proportionate number of shares Beneficially Owned by
such Person to 15% or more of the shares of Common Stock then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding by reason of share
acquisitions by the Company and if such Person shall, after such share
acquisitions by the Company, become the Beneficial Owner of any additional
shares of Common Stock representing one percent (1%) or more of Common Stock
(other than pursuant to a dividend or distribution paid or made by the Company
on the outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), then such Person (unless such Person shall
be the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, any entity holding
shares of Common Stock for or pursuant to the terms of any such plan, or LOF)


 

















 


shall be deemed an “Acquiring
Person,” or (ii) if the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an “Acquiring Person,” as defined by
the foregoing provisions of this paragraph (a), has become such inadvertently,
and such person divests as promptly as practicable a sufficient number of
shares of Common Stock so that such Person would no longer be an “Acquiring
Person,” as defined by the foregoing provisions of this paragraph (a).”


 


2.             Section
3(a) of the Rights Agreement is hereby amended to add to the first sentence of
such Section 3(a) the language marked in bold italics below:


 


“Until the earlier of (i) the Close of Business on the
tenth day after the Stock Acquisition Date (or, if the tenth day after the
Stock Acquisition Date is prior to the Record Date, the Close of Business on
the Record Date) or (ii) the Close of Business on the tenth day after the date
that a tender or exchange offer by any Person (other than the Company, any
Subsidiary of the Company, LOF,
any employee benefit plan of the Company or of any Subsidiary of
the Company, or any entity holding shares of Common Stock for or pursuant to
the terms of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the
Exchange Act...”


 


3.             The
Rights Agreement shall remain in full force and effect without amendment except
this Third Amendment and any other amendment made in accordance with Section 26
of the Rights Agreement. All references in the Rights Agreement to “this
Agreement” or the “Agreement” or “hereof” and all references in this Third
Amendment to the Agreement shall hereafter be deemed to be references to the
Rights Agreement as amended by this Third Amendment and any other amendment
made in accordance with Section 26 of the Rights Agreement. All terms used but
not defined in this Third Amendment shall have the meanings ascribed to them in
the Rights Agreement.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Third Amendment to be duly executed as of the day and year first above
written.


 


	
   

  	
  BIOJECT
  MEDICAL TECHNOLOGIES INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  JOHN GANDOLFO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Gandolfo

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer
  and Vice President, Finance

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAN
  STOCK TRANSFER & TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  WILBERT MYLES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Wilbert
  Myles

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


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