EXHIBIT
10.3


BIOJECT
MEDICAL TECHNOLOGIES INC.


FORM OF CONVERTIBLE NOTE PURCHASE
AND WARRANT AGREEMENT


 


This Convertible Note
Purchase and Warrant Agreement (the “Agreement”) is
made as of [                       ],
2007, by and between Bioject Medical Technologies
Inc., an Oregon corporation (the “Company”),
and                       
(“Purchaser”).


RECITALS


The Company desires to
issue and sell and the Purchaser desires to purchase a convertible subordinated
promissory note in substantially the form attached to this Agreement as Exhibit A (the “Notes”), which
shall be convertible on the terms stated therein into stock of the
Company.  Purchasers shall also receive a
warrant to purchase additional shares of the Company pursuant to the form of
warrant attached hereto as Exhibit B.  The Note, the equity securities issuable upon
conversion thereof (and any securities issuable upon conversion of such equity
securities), the warrant and the equity securities issued upon the Purchaser’s
exercise of the warrant are collectively referred to herein as the “Securities.”  Terms
not otherwise defined in this Agreement shall have the meaning given to them in
the Note attached hereto as Exhibit A.


AGREEMENT


In consideration of the
mutual promises contained herein and other good and valuable consideration,
receipt of which is hereby acknowledged, the parties to this Agreement agree as
follows:


1.             Purchase and Sale of Notes and Warrants.


(a)           Sale and
Issuance of Notes.  Subject to
the terms and conditions of this Agreement, each Purchaser agrees to purchase
at the Closing and the Company agrees to sell and issue to Purchaser a Note in
the principal amount of $                   .  The purchase price of each Note shall be
equal to 100% of the principal amount of such Note.  The Note shall be convertible into equity
securities of the Company as provided for under the Note, and the Warrant shall
be exercisable for equity securities of the Company as provided for under the
Warrant.


(b)           Warrants.  Upon the Closing (as defined in Section 1(c)
below), Purchaser shall receive a warrant to purchase                   shares
of the Company’s common stock in the form attached hereto as Exhibit B (the “Warrant”).    The exercise price of the Warrant (“Exercise Price”) shall be the $0.75 per share price, subject
to adjustment as set forth in the Warrant.


(c)           Closing;
Delivery.


(i)            The initial
purchase and sale of the Notes shall take place at the offices of the Company,
20245 S.W. 95th Ave., Tualatin, OR 97062, at 1:00 p.m., on November     ,
2007 (the “Closing”).  At Closing, the Company shall deliver to
Purchaser the Note to be purchased by Purchaser against payment of the purchase
price therefor by personal check (acceptance by the Company is subject to
receipt of readily available funds) cashier’s check or by wire transfer to the
Company’s bank account and the duly executed Warrant and the parties shall
execute and deliver the Registration Rights Agreement in the form attached
hereto as Exhibit C (the “Registration
Rights Agreement”).


2.             Stock Purchase Agreement.


(a)           Purchaser
understands and agrees that the conversion of the Note into equity securities
of the Company may require such Purchaser’s execution of certain agreements (in
form reasonably agreeable to a majority in interest of the Purchasers) relating
to the purchase and sale of such securities as well as registration,
information and voting rights, if any, relating to such equity securities.

















 


(b)           Purchaser agrees to
be bound by the agreements described in Section 2(a).


3.             Representations and Warranties of the Company.  The Company hereby represents and warrants to
each Purchaser that:


(a)           Organization.  The Company is a corporation duly organized
and validly existing under the laws of the State of Oregon and has all
requisite corporate power and authority to carry on its business as now
conducted and as proposed to be conducted.


(b)           Authorization.  All corporate action on the part of the
Company, its officers, directors and shareholders necessary for the
authorization, execution and delivery of this Agreement and the authorization,
sale, issuance and delivery of the Note, the Warrant, the Registration Rights
Agreement, the shares of the Company’s capital stock issuable on conversion or
exercise thereunder, and the performance of all obligations of the Company
hereunder and thereunder, has been taken or will be taken prior to the
Closing.  The shares of Common Stock
issuable upon exercise of the Warrant and pursuant to Section 4.1.1 of the
Note, upon issuance in accordance with the terms of the Warrant or Note, as
applicable, will be duly and validly issued, fully paid, and nonassessable. The
Agreement, the Registration Rights Agreement, the Note and the Warrant, when
executed and delivered by the Company, shall constitute valid and legally
binding obligations of the Company, enforceable against the Company in
accordance with their terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws
of general application affecting enforcement of creditors’ rights generally, as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.


(c)           Governmental
Consents.  All consents,
approvals, orders or authorizations of, or registrations, qualifications,
designations, declarations or filings with, any governmental authority,
required on the part of the Company in connection with the valid execution and
delivery of this Agreement, the Registration Rights Agreement, the offer, sale
or issuance of the Note, the Warrant, conversion of the Note, exercise of the
Warrant or the consummation of any other transaction contemplated hereby shall
have been obtained and will be effective at the Closing, except for notices
required or permitted to be filed with certain state and federal securities
commissions, which notices will be filed on a timely basis.


(d)           Offering.  Assuming the accuracy of the representations
and warranties of the Purchasers contained in Section 4 hereof, the offer,
issue and sale of the Notes and the Warrant are and will be exempt from the
registration and prospectus delivery requirements of the Securities Act of
1933, as amended (the “Securities Act”),
and 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.


(e)           SEC
Documents; Financial Statements. 
As of the Closing, the Company shall have filed all reports, schedules,
forms, statements and other documents required to be filed by it with the
Securities and Exchange Commission (“SEC”) pursuant
to the reporting requirements of the Securities Exchange Act of 1934, as
amended (the “1934 Act”) (all of the foregoing
filed prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference
therein being hereinafter referred to as the “SEC
Documents”).  As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC
Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.  As of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto.  Such financial statements have been prepared in
accordance with generally accepted accounting principles, consistently applied,
during the periods involved (except in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present in all material respects the financial
position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).  No other information provided by or on behalf
of the Company to the Purchaser which is not included in the SEC Documents
contains any untrue statement of a material fact or


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omits to state any
material fact necessary in order to make the statements therein, in the light
of the circumstance under which they are or were made, not misleading.


4.             Representations and Warranties of the Purchaser.  Purchaser hereby represents and warrants to
the Company that:


(a)           Authorization.  The Purchaser has the full right, power and
authority to enter into and perform the Purchaser’s obligations under this
Agreement, and this Agreement when executed and delivered by the Purchaser will
constitute valid and binding obligations of the Purchaser, enforceable in
accordance with their respective terms, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of debtors, rules
of law governing specific performance, injunctive relief or other equitable
remedies.


(b)           Purchase
Entirely for Own Account.  The
Securities to be acquired by the Purchaser will be acquired for investment for
the Purchaser’s own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and the Purchaser has no
present intention of selling, granting any participation in, or otherwise
distributing the same.  The Purchaser is
not an entity formed for the specific purpose of acquiring any of the
Securities.


(c)           Knowledge.  The Purchaser is aware of the Company’s
business affairs and financial condition and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
to acquire the Securities.  The Purchaser
has had the opportunity to ask questions of the Company concerning the Company’s
business and any related matter, and has received answer to his or her
satisfaction.


(d)           Restricted
Securities.  The Purchaser
understands that the Securities have not been, and will not be, registered under
the Securities Act, by reason of a specific exemption from the registration
provisions of the Securities Act which depends upon, among other things, the
bona fide nature of the investment intent and the accuracy of the Purchaser’s
representations as expressed herein.  The
Purchaser understands that the Securities are “restricted securities” under
applicable U.S. federal and state securities laws and that, pursuant to
these laws, the Purchaser must hold the Securities indefinitely unless they are
registered with the Securities and Exchange Commission and qualified by state
authorities, or an exemption from such registration and qualification
requirements is available.  The Purchaser
further acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Securities,
and on requirements relating to the Company which are outside of the Purchaser’s
control, and which the Company is under no obligation and may not be able to
satisfy.


(e)           Legends.  The Purchaser understands that the
Securities, and any securities issued in respect thereof or exchange therefor,
may bear one or all of the following legends:


(i)            “THIS NOTE, AND THE
SECURITIES ISSUABLE PURSUANT TO A CONVERSION OF THIS NOTE, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”).  THIS NOTE, AND THE SECURITIES ISSUABLE
PURSUANT TO A CONVERSION OF THIS NOTE, HAVE BEEN ACQUIRED WITHOUT A VIEW TO
DISTRIBUTION AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED
IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THIS NOTE, OR FOR THE
SECURITIES ISSUABLE PURSUANT TO A CONVERSION OF THIS NOTE, AS THE CASE MAY BE, UNDER
THE ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL FOR THE HOLDER (CONCURRED IN BY LEGAL COUNSEL FOR THE CORPORATION) THAT
SUCH REGISTRATION IS NOT REQUIRED AS TO SUCH SALE OR OFFER”


(ii)           “THIS WARRANT, AND
THE SECURITIES ISSUABLE PURSUANT TO AN EXERCISE OF THIS WARRANT, HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”).  THIS WARRANT, AND THE SECURITIES ISSUABLE
PURSUANT TO AN EXERCISE OF THIS WARRANT, HAVE BEEN ACQUIRED WITHOUT A VIEW TO DISTRIBUTION
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THIS WARRANT, OR FOR THE
SECURITIES ISSUABLE PURSUANT TO AN EXERCISE OF THIS WARRANT, AS THE CASE MAY
BE,


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UNDER THE ACT AND UNDER ANY APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE HOLDER (CONCURRED IN BY LEGAL
COUNSEL FOR THE CORPORATION) THAT SUCH REGISTRATION IS NOT REQUIRED AS TO SUCH
SALE OR OFFER”


 


(iii)          Any legend required
by the Blue Sky laws of any state to the extent such laws are applicable to the
shares represented by the certificate so legended.


(f)            Accredited Investor. 
The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation
D promulgated under the Securities Act because the undersigned is either (i) a
natural person whose individual net worth, or joint net worth with his or her
spouse, exceeds $1,000,000 as of the date of this Agreement, (ii) a natural
person who had an individual income in excess of $200,000 in each of the two
most recent years or joint income with his or her spouse in excess or $300,000
in each of those years and has a reasonable expectation of reaching the same
income level in the current year, or (c) a director or executive officer of the
Company.  Purchaser is in a financial
position to hold the Securities and is able to bear the economic risk and
withstand a complete loss of Purchaser’s investment in the Securities.


5.             Conditions of the Purchaser’s Obligations at Closing.  The obligations of Purchaser to the Company
under this Agreement are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived:


(a)           Representations
and Warranties.  The representations
and warranties of the Company contained in Section 3 shall be true on and
as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.


(b)           Qualifications.  All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale
of the Securities pursuant to this Agreement shall be obtained and effective as
of the Closing.


6.             Conditions of the Company’s Obligations at Closing.  The obligations of the Company to Purchaser
under this Agreement are subject to the fulfillment, on or before the Closing,
of each of the following conditions, unless otherwise waived:


(a)           Representations
and Warranties.  The
representations and warranties of each Purchaser contained in Section 4
shall be true on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.


(b)           Qualifications.  All authorizations, approvals or permits, if
any, of any governmental authority or regulatory body of the United States or
of any state that are required in connection with the lawful issuance and sale of
the Securities pursuant to this Agreement shall be obtained and effective as of
the Closing.


(c)           Payment of
Principal Amount.  Purchaser
shall have paid by check or wire transfer of immediately available funds the
principal amount set forth on the signature page of this Agreement.


7.             Miscellaneous.


(a)           Successors
and Assigns.  The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties.  Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


(b)           Governing Law.  This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
Oregon, without giving effect to principles of conflicts of law.  The parties agree that the state or


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federal courts located in
the State of Oregon constitute the sole and exclusive venue, and the exclusive
jurisdiction, for disputes arising under or with respect to this Agreement.


(c)           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.


(d)           Titles and Subtitles.  The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.


(e)           Notices.  Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or forty-eight (48) hours after being deposited in the
U.S. mail as certified or registered mail with postage prepaid, if such notice
is addressed to the party to be notified at such party’s address or facsimile
number as set forth below or as subsequently modified by written notice.


(f)            Finder’s Fee.  Except as may otherwise be specifically
agreed to by the parties, each party represents that it neither is nor will be
obligated for any finder’s fee or commission in connection with this
transaction.  Each Purchaser agrees to
indemnify and to hold harmless the Company from any liability for any
commission or compensation in the nature of a finder’s fee (and the costs and
expenses of defending against such liability or asserted liability) for which
each Purchaser or any of its officers, employees, or representatives is
responsible.  The Company agrees to indemnify
and hold harmless each Purchaser from any liability for any commission or
compensation in the nature of a finder’s fee (and the costs and expenses of
defending against such liability or asserted liability) for which the Company
or any of its officers, employees or representatives is responsible.


(g)           Amendments and Waivers.  Any term of this Agreement may be amended or
waived only with the written consent of the Company and the holders of at least
a majority of the outstanding principal amount of the Notes.  Any amendment or waiver effected in
accordance with this Section 7(g) shall be binding upon the Purchasers and
each transferee of the Securities, each future holder of all such Securities,
and the Company.


(h)           Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable law or in violation of any law,
exchange rule or regulation to which the Company is subject, the parties agree
to renegotiate such provision in good faith, in order to maintain the economic
position enjoyed by each party as close as possible to that under the provision
rendered unenforceable.  In the event
that the parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its terms.


(i)            Entire Agreement. 
This Agreement, and the documents referred to herein constitute the
entire agreement between the parties hereto pertaining to the subject matter
hereof and any and all other written or oral agreements existing between the
parties hereto are expressly canceled.


(j)            Most Favored Terms. 
The Note is intended to be one of a series of convertible promissory
notes of like tenor to be issued by the Company prior to March 31, 2008 in an
aggregate principal amount not to exceed $1.5 million (collectively, the “Bridge Notes”).  If
any subsequent purchaser of a Bridge Note receives terms for such note or the
related warrant (including the percentage of warrant coverage) that are
superior to those contained in the Note and the Warrant, then the Company shall
amend the Note or Warrant, as applicable, to provide purchaser with the same
terms.


[Signature Page Follows]


 


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The parties have executed
this Convertible Note Purchase and Warrant Agreement as of the date first
written above.




	
   

  	
  COMPANY:

  
	
   

  
	
   

  	
  BIOJECT MEDICAL TECHNOLOGIES
  INC.

  
	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  (print)

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
  Facsimile Number:

  	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  	
  PURCHASER:

  
	
   

  
	
   

  	
   

  
	
   

  	
  (Purchaser)

  
	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  (print)

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
  Facsimile Number:

  	
   

  
	
   

  
									






 


 


Exhibits:


 


A — Form of Convertible Promissory Note


C — Form of Warrant


D — Form of Registration Rights Agreement


 


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