EXHIBIT
10.4


EXECUTIVE EMPLOYMENT AGREEMENT


 


THIS  AGREEMENT
is dated April 8, 2002,  between:


 


                                                BIOJECT
MEDICAL TECHNOLOGIES INC. (“BMT”), a
Corporation incorporated under the laws of the State of Oregon having its
principal offices at 7620 SW Bridgeport Rd., Portland, Oregon 97224


 


                                                BIOJECT
INC., a Corporation incorporated
under the laws of the State of Oregon having its principal offices at 7620 S.W.
Bridgeport Road, Portland, Oregon, 97224 (collectively referred to as the
“Company”)


 


AND:


 


                                                Eric Marc Mishkin,
Ph.D.


893 LaRoe Road


Monroe, NY  10950


                                                (the “Executive”)


 


RECITALS:


 


1.                                      The Company desires to secure the services and expertise of the
Executive and to ensure the availability of the Executive to the Company;


 


2.                                      The Executive desires to serve in the employ of the Company on a
full-time basis for the period and upon the terms and conditions provided for
in this Agreement; and


 


3.                                      The Executive and the Company desire to execute an agreement entered
into between them.


 


NOW THEREFORE, in consideration of the premises and
mutual covenants contained herein, the parties noted above agree as follows:


 


SECTION 1


 


1.1          Employment


 


                                                The Company appoints the Executive to and retains the Executive for the
position of Senior Vice President, Chief Scientific Officer for the Company, and the Executive accepts such
appointment.  This appointment becomes
effective no later than June 15,  2002.


 


1.2          Approval
by the Board


 


                                                The Company represents, if required by its Bylaws, that the appointment
of the Executive to the position referred to in Section 1.1 will be approved by
the Board of Directors of the Company (the “Board”) and that all corporate
action required to effect the appointment will be taken.


 


1.3          Definitions


 


                                                As used in this agreement:


 


                                                a.             “Confidential
Information”  means any of the
Company’s customers, employees, products, processes, services, financial
information, marketing techniques, merchandising, business strategies, or
plans, research, development, systems, inventions or any other trade secret or
information pertaining to any of the preceding terms.


 


 

















 


                                                b.                                      “Conflicting Product”  means any device, process or service of any
person or organization other than the Company, in existence or under
development, which resembles or competes with the current or projected
products, processes or services of the Company.


 


                                                c.                                       “Conflicting Organization”  means any person or organization engaged or
about to become engaged in research, development, production, marketing or
selling of a Conflicting Product.


 


                                                d.                                      “Inventions” means discoveries, concepts, and ideas, whether
patentable or not, including but not limited to, procedures, processes,
methods, formulas, and techniques, as well as improvements thereof or know-how
related thereto, concerning any present or prospective activities of the
Company with which the Employee becomes acquainted as a result of his
employment by the Company.


 


 


SECTION 2 - DUTIES/RESPONSIBILITIES


 


2.1          Duties/Responsibilities


 


                                                During the employment term and any renewals thereof, the Executive will
devote such time, attention, skill and efforts as may be necessary to assure
the full performance of his duties and responsibilities, to the best of his
abilities, with such authority as is customarily associated with the position
of Senior Vice President, Chief Scientific Officer.  The Executive hereby accepts
and agrees to such engagement of services, and will devote himself solely to
the operation of the Company’s business. 
The Executive may continue his existing involvement in an advisory or
board capacity with non-competing organizations.


 


2.2          Reporting


 


                                                In conducting his duties under this Agreement, the Executive shall
report to the Chief Executive Officer and Chairman of the Board of Directors of
the Company.


 


2.3          Location
of Employment


 


Bioject will reimburse the Executive an amount not
to exceed $20,000 for home renovation and equipment necessary to establish a
home office.  It is further agreed that
should the Executive voluntarily resign from the Company during the first two
years of employment that the Executive will return a pro rata portion of this
home office allowance to the Company.


 


SECTION 3 - COMPENSATION


 


3.1          Salary


 


                                                For the Executive’s services to the Company, the Executive shall be
entitled to receive a minimum annual gross salary of $215,000.  Not less than once during each year of
employment and based upon the Company’s fiscal year, the Chief Executive
Officer shall review the Executive’s performance, duties and compensation
(including both base pay and annual stock options) for the purpose of promotion
and/or increasing the compensation payable to the Executive.  Executive’s salary shall be paid in
bi-weekly installments during the calendar year for the term of this Agreement.  The Company shall deduct or withhold from
such payments to the Executive the sums as are required under applicable laws
for worker’s compensation, income taxes and other benefits in accordance with
Company policy.


 


3.2                               Bonus


 


The Executive will receive a signing bonus of
$25,000 payable within 30 days of the date employment begins.  This bonus will be subject to Federal and
State tax withholding.


 


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3.3          Reimbursement
of Expenses


 


                                                The Company shall reimburse the Executive for all reasonable
out-of-pocket expenses, including, without limitation, all travel and
entertainment expenses payable or incurred by the Executive in connection with
his duties as an employee of the Company under this Agreement.  It is the policy of the Company for
employees to travel as inexpensively as possible, utilizing economy airfare and
standard rental cars.  All payments or
reimbursements shall be made promptly upon submission by the Executive of
vouchers, bills or receipt for all expenses.


 


3.4          Other
Benefits


 


                                                The Executive will be entitled to participate in the Company’s employee
benefit programs for medical, dental, life, long and short term disability
insurance, employee stock purchase, and 401(k) Plan according to the terms,
conditions and eligibility requirements set forth in the individual plan
provisions.  The Executive will accrue
flexible time off (FTO) at 15.5 hours per month.  This equates to over four weeks of vacation for the first year.


 


3.5          Disability


 


                                                Should Executive become disabled and unable to perform substantially
all of his duties under this Agreement, as documented by an independent
physician selected jointly by the Executive and the Company, the Company will
continue paying the Executive any bonus earned and previously awarded, together
with his then-current salary at seventy-five percent (75%) of current salary
for a period of not greater than six (6) months from the disability date.  Should the disability continue, payments by
the Company will then be reduced to fifty percent (50%) of current salary for any
remaining period of disability not to exceed an additional six (6) months.  Health and dental insurance and other
benefit coverage will continue for the duration of these payments, for a
maximum time period not to exceed twelve (12) months.  Should payments to Executive under worker’s compensation and/or
disability insurance programs, when combined with Company payments, exceed
seventy-five percent (75%) of employee’s current salary, the Company will
reduce its payment by the excess amount.


 


 


SECTION 4 - TERMS 
OF  EMPLOYMENT


 


4.1                               Duration


 


                                                The term of this Agreement shall commence on or before June 15,
2002.  It shall continue for an initial
term of two consecutive one-year periods, subject to the early termination
provisions of this Section 4.  Upon expiration
of the initial term, this Agreement will be automatically renewed for
successive one-year terms unless either the Executive or the Company shall,
upon three months written notice to the other, elect not to renew this
Agreement for any year.  Non-renewal of
the Agreement by the Company shall be deemed a termination pursuant to Section
4.2(a)(ii), and shall be subject to the severance compensation provisions
related to termination under that Section.


 


4.2                               Termination
by the Company


 


                                                (a)           The Company may
terminate this Agreement:


 


                                                                                                (i)                                     Immediately if it is determined by the Board of Directors that the
Executive’s actions:  (1) constitute a
material breach of his duties hereunder, followed by Executive’s failure to
cure such breach within a reasonable period of time after receiving written
notice thereof, or (2) constitute a criminal act reflecting adversely on the
business or reputation of the Company or (3) have resulted in the Executive, in
his personal capacity, being indicted or sanctioned or his entering into a
consent decree, in


 


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connection
with any investigation of, allegation of wrongdoing by, or other formal
proceeding against the Executive, by the United States Food and Drug
Administration or the United States Securities and Exchange Commission, whether
related to the business of the Company or to any other past employment or
activity of the Executive; or


 


                                                                                                (ii)                                  With or without other cause at any time by giving written notice to the
Executive.


 


                                                (b)                                 Upon termination of this Agreement by the Company:


 


                                                                                                (i)                                     Pursuant to Section 4.2(a)(i):


 


A.                                   The salary and Company sponsored benefits payable
to the Executive pursuant to Section 3.1 shall be paid in regular bi- weekly
installments for six months (6) months following the date of termination;  if however, the Executive finds an
appropriate job during the severance period, the Executive agrees to inform the
Company and severance benefits will be forfeited from that point.


 


 


                                                                                                                                                B.                                     All other forms of compensation payable to the Executive pursuant to
Section 3 shall terminate on the date of termination, except that as
expeditiously as possible following the termination, the Company shall pay or
reimburse the Executive for all expenses incurred prior to the termination
pursuant to Section 3.3, together with any bonuses earned by and previously
awarded to the Executive pursuant to Section 3.2 prior to the date of
termination.


 


                                                                                                (ii)                                  Pursuant to Section 4.2(a)(ii), Section 2.3, Section 4.1 or Section
4.5:


 


                                                                                                                                                A.                                   The salary and Company sponsored benefits payable to the Executive
pursuant to Section 3.1 shall be paid for the period commencing on the date of
the termination and continuing for six (6) months following the date of
termination; and


 


                                                                                                                                                B.                                     All other forms of compensation payable to the Executive pursuant to
Section 3 shall terminate, except that as expeditiously as possible after the
termination, the Company shall pay or reimburse the Executive for all expenses
incurred prior to the termination pursuant to Section 3.3, together with any
bonuses earned by and previously awarded to the Executive pursuant to Section
3.2 prior to the date of termination.


 


4.3                               Termination
by Executive


 


                                                The Executive may terminate this Agreement at any time by giving written
notice to the Company.  Upon termination
of this Agreement by the Executive pursuant to this Section:


 


                                                (a)           The salary payable
to the Executive pursuant to Section 3.1 shall be prorated to the date of the
termination; and


 


                                                (b)           Except for the
severance package made available to the Executive pursuant to Section 2.3 and
Section 4.2(b)(ii), all other forms of compensation payable to the Executive
pursuant to Section 3 shall terminate on the date of the termination.  As expeditiously as possible after termination
of the Executive’s employment, the Company shall pay or reimburse the Executive
for all expenses incurred prior to the termination pursuant to Section 3.3.


 


 


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4.4                               Termination
Upon Death


 


                                                This Agreement shall terminate immediately upon the Executive’s
death.  In the event of the Executive’s
death:


 


                                                (a)           The Company shall
pay to the Executive’s estate the salary otherwise payable to the Executive
pursuant to Section 3.1 through the last day of the calendar month in which the
Executive’s death occurs and for a period of 
sixty (60) days thereafter; and


 


                                                (b)           As expeditiously as
possible after the Executive’s death, the Company shall pay or reimburse the
Executive’s estate for all expenses incurred pursuant to Section 3.3 prior to
such death, together with any bonuses earned by and awarded to the Executive
pursuant to Section 3.2 prior to the date of such death.


 


4.5                               Change
in Control


 


                                                If at any time during the term of this Agreement a Change in Control
(as defined below) of the Company occurs, then, as to such Change in Control,
the Company will utilize its best efforts to make appropriate provisions to
preserve the rights and interests of the Executive pursuant to this Agreement.  Failure of the Company to preserve such
rights and interests of the Executive will, at the Executives option, be deemed
a termination pursuant to Section 4.2(a)(ii), and will be subject to the
severance compensation provisions related to termination under that Section.  For purposes of this Agreement, a “Change in
Control” shall mean the occurrence of any of the following events:


 


                                                (a)           The approval by the
shareholders of BMT of:


 


(1)                                  any consolidation, merger or plan of share exchange involving BMT (a
“Merger”) as a result of which the holders of outstanding securities of BMT
ordinarily having the right to vote for the election of directors (“Voting
Securities”) immediately prior to the Merger do not continue to hold at least
50% of the combined voting power of the outstanding Voting Securities of the
surviving or continuing corporation immediately after the Merger, disregarding
any Voting Securities issued or retained by such holders in respect of
securities of any other party to the Merger;


 


(2)                                  any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, the assets of
BMT; or


 


(3)                                  the adoption of any plan or proposal for the liquidation or dissolution
of BMT; or


 


                                                (b)           Any “person” or
“group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the “Act”)) shall, as a result of a tender or
exchange offer, open market purchases or privately negotiated purchases from
anyone other than BMT, have become the beneficial owner (within the meaning of
Rule 13d-3 under the Act), directly or indirectly, of Voting Securities
representing fifty percent (50%) or more of the combined voting power of the
then outstanding Voting Securities.


 


4.6                               Acts
Upon Termination


 


                                                Upon termination of Executive’s employment with the Company, all
computers, equipment, documents, records, notebooks, and similar repositories
of or containing Confidential Information, including copies thereof, then in
the Executive’s possession, whether prepared by himself or others, will be
delivered to the Company within thirty (30) days of such termination.  The obligations of the Executive in Sections
6.1 and 6.2 of this Agreement shall survive any termination of the Executive.


 


 


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SECTION 5 - STOCK


 


5.1          Grant of
Stock Options


 


                                                As soon as possible following the execution hereof, the Executive and
the Company shall execute an Incentive Stock Option Agreement granting the
Executive 40,000 options to purchase shares of BMT at a strike price
equal to the fair market value of the Company’s stock on the date of
grant.  These options vest as follows: 
33.3% (13,333) on each of the Executive’s first three annual
anniversaries of employment with the Company, provided he remains employed by
the Company during each year.  All
options granted will be subject to the same terms and conditions as typically
provided in options granted under the Company’s 1992 Stock Incentive Plan.


 


The Executive will also receive an additional grant of 20,000 options to
purchase shares of BMT on the first anniversary of his employment by the
Company; provided, however, that if prior to such first anniversary, a Change
in Control occurs or the Company publicly announces that it has entered into an
agreement or letter of intent for a transaction that will constitute a Change
in Control if completed, the additional options shall be immediately granted
with a strike price equal to the closing price of the Company’s stock on the
trading day preceding such Change in Control or announcement.  These
options vest as follows:  33.3% on each
of the Executive’s next three annual anniversaries of employment with the
Company, provided he remains employed by the Company during each year.  All options granted will be subject to the
same terms and conditions as typically provided in options granted under the
Company’s 1992 Stock Incentive Plan.


 


The Executive will also receive an additional grant of 20,000 options to
purchase shares of BMT on the second anniversary of his employment by the
Company; provided, however, that if prior to such second anniversary, a Change
in Control occurs or the Company publicly announces that it has entered into an
agreement or letter of intent for a transaction that will constitute a Change
in Control if completed, the additional options shall be immediately granted
with a strike price equal to the closing price of the Company’s stock on the
trading day preceding such Change in Control or announcement.  These
options vest as follows:  33.3% on each
of the Executive’s next three annual anniversaries of employment with the
Company, provided he remains employed by the Company during each year.  All options granted will be subject to the
same terms and conditions as typically provided in options granted under the
Company’s 1992 Stock Incentive Plan.


 


                                                The Stock Option Agreements related to such options will provide that,
in the event of (A) a Change in Control, (B) termination of employment pursuant
to Section 4.2(a)(ii) (including deemed termination pursuant to such section
pursuant to Section 4.1), or (C) the Executive’s having opted to receive a
severance package in lieu of relocating pursuant to Section 2.3, all stock
options which have been awarded to the Executive, but are not yet vested, will
vest immediately.


 


5.2          Registration


 


                                                It is understood that BMT is a reporting company within the
requirements of the Securities and Exchange Commission (“SEC”) and has elected
to register the options granted hereunder with the SEC.


 


 


SECTION 6 - MISCELLANEOUS


 


6.1          Disclosure
of Information and Employee Restrictions


 


                                                Executive agrees to the following:


 


                                                a.             Executive agrees
that he shall not, during his employment, either as an individual or as part of
an organization, throughout North America or Europe, compete with the Company
or render services directly or indirectly, to any Conflicting Organization or
himself establish or


 


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acquire any interest, directly or indirectly, in a
Conflicting Organization, nor will he assist any other person or entity to do
so;


 


                                                b.             Executive will not
during his employment solicit or sell to any of the Company’s present or future
customers, a Conflicting Product or service nor will he assist any other person
or entity to do so;


 


                                                c.             Except as required
in his duties to the Company, the Executive will not, during or for five years
after his employment, directly or indirectly use, disseminate, disclose,
lecture upon, or publish any Confidential Information without Company’s written
consent.


 


                                                In the event this Agreement is terminated, for whatever reason,
Executive agrees that he shall not, for two years following the date of
termination:


 


                                                a.             Either as an
individual or as part of an organization, throughout Canada or the United
States, compete with the Company or render services directly or indirectly, to
the companies listed in exhibit A, or to any Conflicting Organization (unless
the services are not directed towards a conflicting product) or himself
establish or acquire any interest, directly or indirectly, in a Conflicting
Organization, nor will he assist any other person or entity to do so; and


 


                                                b.             He will not employ,
without the consent of the Company, directly or indirectly, any past or present
employees of the Company, nor will he assist any other person or entity to do
so; and


 


6.2                               Arbitration
and Jurisdiction


 


                                                As a matter of operating practice, the Company expects to resolve
disagreements or conflicts by mutual negotiation in good faith.  Any controversy or claim arising out of or
relating to this Agreement or any breach of this Agreement shall be finally
settled by arbitration in accordance with the provisions of the Commercial
Arbitration Rules of the American Arbitration Association.  Such arbitration shall be conducted in
Portland, Oregon by one arbitrator, with one discovery allowed by each party to
this agreement.  This agreement is
entered into and shall be interpreted and enforced according to the laws of the
State of Oregon; both parties consent to personal jurisdiction for that
purpose.


 


6.3          Notices


 


                                                Any notice or other communication required or permitted to be given
under this Agreement shall be in writing, given by personal delivery or sent by
first class mail, postage prepaid, addressed as follows:


 


                                                To the Executive:                                                    Eric Marc
Mishkin, Ph.D.


893 LaRoe Road


Monroe, NY  10950


                                                                                                                                                                                                (the “Executive”)


 


 


                                                To the Company:                                                    Secretary to the Board of Directors


                                                                                                                                                                                                Bioject Medical Technologies Inc.


                                                                                                                                                                                                7620 S.W. Bridgeport Road


                                                                                                                                                                                                Portland, Oregon  97224


 


                                                Either party, by notice as provided above, may change the address to
which subsequent notice shall be given. 
Any notice given herein shall be deemed received seven (7) days after
posting in a post office box; PROVIDED, HOWEVER, that if there should be a
postal strike, slow-down or other labor


 


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dispute which may effect the delivery of such
notice through the mail between the time of mailing and the actual receipt of
the notice, then such notice shall be effective only if actually delivered.


 


6.4          Assignment


 


                                                This Agreement is a personal employment agreement addressing services,
compensation and benefits.  It may not
be assigned by either party without the prior written consent of the other
party; however, during his employment term, the Executive may by written
assignment assign all or any portion of the compensation or benefits to which
he is entitled under Section 3 to any member of his immediate family or to any
corporation, partnership or other business entity controlled by the
Executive.  Except as required by law,
no right to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrance, charge,
pledge or hypothecation or to execution, attachment, levy or similar process or
assignment by operation of law and any attempt, voluntary or involuntary, to
affect any such action shall be null, void, and of no effect.


 


6.5          Indemnity


 


                                                The Executive, his heirs, executors, administrators, estate and
effects, shall at all times be indemnified and held harmless by the Company
from and against:


 


                                                a.                                       All costs, charges and expenses whatsoever sustained or incurred as a
result of any action, suit or proceeding, whether civil, criminal,
administrative, or investigative, that is brought, commenced or prosecuted for
or in respect of any act, deed, matter or thing whatsoever made, done or
permitted in or about the execution of the Executive’s duties; and


 


                                                b.                                      All other costs, charges and expenses sustained or incurred in or about
or in relation to the affairs of the Company;


 


                                                Except such costs, charges or expenses as are occasioned by the
criminal act, willful gross neglect or default of duties by the Executive.  At all such times that the Company obtains
and maintains directors and officers errors and omissions insurance, Executive
shall be a beneficiary of such policy(ies).


 


6.6          Amendment
and Severability


 


                                                This Agreement may not be amended or otherwise modified except by an
instrument in writing signed by both parties. 
All agreements and covenants herein contained in this Agreement are
deemed to be severable, and in the event any portion of this Agreement is
declared to be invalid, this Agreement shall be interpreted as if such invalid
portion or covenant were severed and not contained herein, with all other terms
of this Agreement remaining valid and binding on the parties hereto.


 


6.7                               Entire
Agreement


 


                                                This agreement specifies all of the terms and conditions of an
employment agreement entered into between the parties on April 1, 2002, which
terms and conditions have been negotiated prior to that date.


 


6.8          Binding
Effect


 


                                                This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, personal representatives, successors
and assigns, except as otherwise expressly provided herein.


 


 


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6.9                               Review
of Legal Counsel


 


                                                The Executive acknowledges that he has had adequate time and
opportunity to consult with legal counsel of his own selection prior to
entering into and executing this Agreement.


 


IN WITNESS WHEREOF the parties have executed this
Agreement effective on the day and year first written above.


 


 


	
   

  
	
  Eric Marc Mishkin, Ph.D.

  



 


 


BIOJECT MEDICAL TECHNOLOGIES INC.


 


	
  By:

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 


 


 


BIOJECT INC.


 


	
  By:

  	
   

  
	
  Name:

  	
   

  
	
  Title: