AMENDMENT NO. 1
TO
AMENDED AND RESTATED WARRANT AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") to that certain Amended and
Restated Pledge and Security Agreement dated November 2, 2001 (the "Amended and
Restated Agreement") is dated as of December 20, 2001 and is by and between
Minrad Inc. (the "Company") and Xxxxx Xxxxxxxxx Partners LP (the "Guarantor").
The Company and the Guarantor intended to be bound hereby agree as
follows:
1. Any capitalized terms used and not otherwise defined herein shall
have the defined meaning provided for in the Amended and Restated
Warrant Agreement.
2. The Company and the Guarantor hereby agree that Schedule A of the
Amended and Restated Warrant Agreement is hereby amended to read in
its entirety as follows:
"The principal amount of the Line of Credit between the Company
and Wachovia Bank, N.A. shall not exceed an aggregate of One
Million Dollars ($1,000,000)."
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, as of the day and year first above written.
MINRAD INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
XXXXX XXXXXXXXX PARTNERS LP
By KKP Management LLC, General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Nonmember Manager
AMENDED AND RESTATED WARRANT AGREEMENT
--------------------------------------
AMENDED AND RESATED WARRANT AGREEMENT dated as of November 2, 2001 (the
"Agreement"), between MINRAD INC., a Delaware corporation ("Company"), and XXXXX
XXXXXXXXX PARTNERS LP ("Guarantor").
WITNESSETH
WHEREAS, the Company and the Guarantor are parties to that certain
Warrant Agreement, dated as of August 10, 2001 (the "Original Agreement"),
pursuant to which the Company agreed to issue a warrant to purchase up to One
Million (1,000,000) shares of the Company's common stock, par value $.01 per
share ("Common Stock") to the Guarantor in consideration of Guarantor's
guarantee under that certain Indemnity Agreement, dated July 25, 2001, by and
between the Guarantor and the Company;
WHEREAS, the Parties desire to amend the Original Agreement as set
forth herein;
WHEREAS, the Guarantor has agreed pursuant to the Amended and Restated
Indemnity Agreement dated concurrently herewith, between the Guarantor and the
Company (the "Indemnity Agreement") to guarantee the Company's obligations under
a series of loans (the "Loans") by and between the Company and Wachovia Bank,
N.A. (the "Lender") for the Company's working capital needs not to exceed the
amount set forth on SCHEDULE A hereto, as amended from time to time (the "Line
of Credit");
WHEREAS, the Warrants to be issued pursuant to this Agreement will be
issued on the basis of one warrant to purchase two and one half (2-1/2) shares
of the Company's Common Stock, per $1.00 borrowed under the Line of Credit, upon
the Lender making available any Loans under the Line of Credit, by the Company
to the Guarantor in consideration for, and as part of the Guarantor's
compensation in connection with, the Guarantor acting as the Guarantor of the
Loans pursuant to the Indemnity Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. GRANT. The Company hereby grants to the Guarantor, and its
designee(s) and/or assigns (each, a "Holder"), the right to purchase, at any
time during the term ("Warrant Exercise Term") commencing on the date hereof and
ending at 5:30 p.m., New York time, on the seventh anniversary of the date of
this Agreement, Two and One Half (2-1/2) shares of Common Stock (the "Warrant
Shares"), per $1.00 borrowed under the Line of Credit, at an initial exercise
price of $1.00 per share of the Common Stock (the "Exercise Price"). The
Guarantor is deemed to have paid $0.15 per share in non-cash consideration upon
the Guarantor's guarantee of the Company's obligations under the Loans and the
Line of Credit. The Company hereby represents that the Common Stock issued
pursuant to this Warrant represents approximately _% of the Company's capital
stock on a fully diluted basis as of the date of this Agreement.
2. WARRANT CERTIFICATES. The Warrants shall be evidenced by warrant
certificates ("Warrant Certificates") in the form of EXHIBIT A hereto which
shall be issued and delivered to the Guarantor (or its designees) upon each Loan
made by the Lender under the Line of Credit pursuant to this Agreement, with
such appropriate insertions, omissions, substitutions and other variations as
required or permitted by this Agreement. The Warrant Certificates, and the
certificates representing the Warrant Shares and/or other securities, property
or rights issuable upon exercise of the Warrants (collectively, the "Warrant
Securities"), shall be executed on behalf of the Company by the manual or
facsimile signature of the then present Chairman or Vice Chairman of the Board
of Directors or President or Vice President of the Company attested to by the
manual or facsimile signature of the then present Secretary or Assistant
Secretary of the Company. Warrant Certificates shall be dated the date of
execution by the Company upon initial issuance notwithstanding any subsequent
division, exchange, substitution or transfer.
3. EXERCISE OF WARRANT.
3.1 EXERCISE. Warrants may be exercised, in whole or in part (but not
as to fractional shares), by surrender of a Warrant Certificate with the annexed
Form of Election to Purchase duly executed, together with payment of the
Exercise Price for the Warrant Securities for which such Warrants are being
exercised at the Company's principal office at Minrad Inc., 000 Xxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000. The Exercise Price shall be payable by certified or
official bank check. The Exercise Price may also be paid, in whole or in part,
in shares of Common Stock owned by the Holder having a Fair Market Value (as
defined below) on the last business day immediately preceding the Exercise Date
(as defined below) equal to the portion of Exercise Price being paid in such
shares. Alternatively, the Warrants may be exercised in the manner specified in
this Section 3, together with irrevocable instructions to the Company to issue
in exchange for the Warrant Certificate the number of shares of Common Stock
equal to the product of (a) the number of shares as to which the Warrants are
being exercised multiplied by (b) a fraction the numerator of which is the Fair
Market Value (as defined below in Section 3.3 herein) of a share of Common Stock
on the five (5) business days ending two (2) days immediately preceding the
Exercise Date less the Exercise Price therefor and the denominator of which is
such Fair Market Value. In the case of the purchase of less than all the shares
of Common Stock purchasable under any Warrant Certificate, the Company shall
cancel said Warrant Certificate and shall execute and deliver a new Warrant
Certificate of like tenor for the unexercised balance of the Warrant Securities.
For purposes hereof, "Exercise Date" shall mean the date on which all deliveries
required to be made to the Company upon exercise of Warrants pursuant to this
Section 3.1 shall have been made.
3.2 ISSUANCE OF CERTIFICATES FOR WARRANT SHARES. Upon the exercise of
the Warrants, the issuance of certificates for Warrant Securities shall be made
forthwith (and in any event such issuance shall be made within 10 business days
from the Exercise Date) without charge to the Holder thereof including, without
limitation, any tax which may be payable in respect of the issuance thereof, and
such certificates shall (subject to the provisions of Section 4 hereof) be
issued in the name of, or in such names as may be directed by, the Holder
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thereof; PROVIDED, HOWEVER, that the Company shall not be required to pay any
tax which may be payable in respect of any transfer to a person other than the
Holder involved in the issuance and delivery of any such certificates and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction
of the Company that such tax has been paid.
3.3 FAIR MARKET VALUE. As is used herein, the "Fair Market Value" of a
share of Common Stock on any day means: the amount per share of Common Stock
equal to (a) if the principal market for the Common Stock is The New York Stock
Exchange, any other national securities exchange or The Nasdaq National Market,
the closing sales price of the Common Stock on such day as reported by such
exchange or market, or on a consolidated tape reflecting transactions on such
exchange or market, or (b) if the principal market for the Common Stock is not a
national securities exchange or The Nasdaq National Market and the Common Stock
is quoted on the National Association of Securities Dealers Automated Quotations
System, the mean between the closing bid and the closing asked prices for the
Common Stock on such day as quoted on such System, or (c) if the Common Stock is
not quoted on the National Association of Securities Dealers Automated
Quotations System, the mean between the highest bid and lowest asked prices for
the Common Stock on such day as reported by the Pink Sheets LLC; provided, that
if none of (a), (b) or (c) above is applicable, or if no trades have been made
or no quotes are available for such day, the Fair Market Value of the Common
Stock shall be determined, in good faith, by the Board of Directors of the
Company.
4. TRANSFER OF SECURITIES. Each Holder, by acceptance of a Warrant
Certificate, covenants and agrees that it is acquiring the Warrants evidenced
thereby, and, upon exercise thereof, the Warrant Securities, for its own account
as an investment and not with a view to distribution thereof. The Warrant
Securities have not been registered under the Securities Act of 1933, as amended
(the "Act"), or any state securities laws and no transfer of any Warrant
Securities shall be permitted unless the Company has received notice of such
transfer, at the address of its principal office set forth in Section 3.1
hereof, in the form of assignment attached hereto, accompanied by an opinion of
counsel reasonably satisfactory to the Company that an exemption from
registration of such Warrant Securities under the Act is available for such
transfer. Upon any exercise of the Warrants, certificates representing any
Warrant Shares or Warrant Securities shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF
EITHER AN EFFECTIVE REGISTRATION UNDER FEDERAL AND STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE REGISTERED
HOLDER SATISFACTORY TO COUNSEL FOR THE COMPANY THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES
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ACT, AND UNDER SUCH LAWS.
Any purported transfer of any Warrants, Warrant Shares or Warrant Securities not
in compliance with the provisions of this Section 4 shall be null and void.
5. REGISTRATION RIGHTS.
5.1 PIGGYBACK REGISTRATION.
(a) If, at any time commencing after the date hereof and ending on the
first anniversary of the expiration of the Warrant Exercise Term, the Company
proposes to register any of its securities under the Act for sale to the public,
whether for its own account or for the account of other security holders or both
(except with respect to an initial public offering and/or registration
statements on Forms S-4 or S-8) it will give written notice by registered mail,
at least sixty (60) days prior to the filing of each such registration
statement, to all Holders of its intention to do so. If a Holder shall notify
the Company within sixty (60) days after receipt of any such notice of its
desire to include any shares of Common Stock underlying the Warrant Shares in
such proposed registration statement, the Company shall cause such shares as to
which registration shall have been so requested to be included therein, all to
the extent requisite to permit the sale or other disposition by the holder of
such shares so registered.
(b) Notwithstanding the foregoing, in the event that any registration
pursuant to Section 5.1(a) shall be, in whole or in part, an underwritten public
offering of Common Stock and the managing underwriter advises the Company in
writing that in its opinion the number of shares of Common Stock underlying the
Warrant Shares and/or other securities requested to be included in such offering
exceeds the amount of securities which can be sold in an orderly manner in such
offering within a price range acceptable to the Company without adversely
affecting the marketability of the offering, then the Company will include in
such registration (i) first, the securities the Company proposes to sell or, if
such registration, the securities such holders propose to sell, and (ii) second,
the shares of Common Stock underlying the Warrant Shares and/or other securities
requested be included in such registration, pro rata from among the Holders and
all other holders of the Company's securities that have the right to request
inclusion of such securities in such registration, according to the number of
shares of Common Stock underlying the Warrant Shares, the Warrants and/or other
securities requested by them to be so included. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred to in
this Section 5.1 without thereby incurring any liability to the Holders.
In connection with any registration pursuant to this Agreement covering
a public offering by the Company, each Holder, by acceptance of a Warrant
Certificate, hereby appoints Guarantor to act as its Guarantor to negotiate the
terms of any restriction on the right of such Holder to sell its Warrant Shares
and/or Warrants which shall be imposed by the managing underwriter for such
offering; PROVIDED, HOWEVER, that a majority of Holders shall approve any terms
so negotiated.
Nothing contained in this Section 5 shall be construed as requiring the
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Holder(s) to exercise their Warrants prior to the initial filing of any
registration statement or the effectiveness thereof.
5.2 EXPENSES. All expenses incurred by the Company in complying with
this Section 5, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky" laws, fees of
the National Association of Securities Dealers, Inc., fees of transfer
Guarantors and registrars, costs of insurance and fees and disbursements of one
counsel for the sellers of the shares of Common Stock underlying the Warrant
Shares, but excluding any Selling Expenses, are called "Registration Expenses."
All underwriting discounts and selling commissions applicable to the sale of the
registrable securities are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under this Section 5. All Selling Expenses in connection
with each registration statement under this Section 5 shall be borne by the
participating sellers in proportion to the number of securities sold by each or
as they may otherwise agree.
5.3 INDEMNITY.
(a) The Company shall indemnify each Holder of Warrant Shares, the
underlying shares of Common Stock of which are to be sold pursuant to any
registration statement and each person, if any, who controls such Holder within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act,
against all loss, claim, damage, expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any claim
whatsoever) to which any of them may become subject under the Act or otherwise,
in connection with the offer and sale of shares of Common Stock underlying such
Warrant Shares; PROVIDED, HOWEVER, that the Company will not be liable in any
such case to the extent that any such claim, damage or liability results from an
untrue statement or alleged untrue statement or an omission or alleged omission
made in such registration statement in reliance upon and in conformity with
written information furnished to the Company by such Holder or any such
controlling persons specifically for inclusion therein.
(b) Each Holder of the Warrant Shares, the underlying shares of Common
Stock or which are to be sold pursuant to a registration statement, and their
successors and assigns, shall, severally and not jointly, indemnify the Company,
its officers and directors and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, against all loss, claim, damage or expense or liability (including all
expenses reasonably incurred in investigating, preparing or defending against
any such claim) to which it may become subject under the Act or otherwise, to
the extent, but only to the extent, resulting from written. information
furnished by or on behalf of such Holder, or its successors or assigns, for
specific inclusion in such registration statement.
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6. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant
Certificate is exchangeable without expense, upon the surrender thereof by the
registered Holder at the principal office of the Company, for a new Warrant
Certificate of like tenor and date representing in the aggregate the right to
purchase the same number of securities in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Warrant Certificate, and,
in case of loss, .theft or destruction, of indemnity or security reasonably
satisfactory to it, and reimbursement to the Company of all reasonable expenses
incidental thereto, and upon surrender and cancellation of the Warrants, if
mutilated, the Company will make and deliver a new Warrant Certificate of like
tenor, in lieu thereof.
7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of shares of Common Stock
upon the exercise of the Warrants, but instead shall pay cash in lieu of such
fractional interests to the Holders entitled thereto based on the Fair Market
Value of the Common Stock as determined in good faith by the Board of Directors
of the Company.
8. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Warrants, such
number of shares of Common Stock or other securities, properties or rights as
shall be issuable upon the exercise thereof. The Company covenants and agrees
that, upon exercise of the Warrants and payment of the Exercise Price therefor,
all shares of Common Stock and other securities issuable upon such exercise
shall be duly and validly issued, fully paid, nonassessable and not subject to
the preemptive rights of any stockholder.
9. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement
shall be construed as conferring upon the Holders the right to vote or to
consent or to receive notice as a stockholder in respect of any meetings of
stockholders for the election of directors or any other matter, or as having any
rights whatsoever as a stockholder of the Company. If, however, at any, time
prior to the expiration of the Warrants and their exercise, any of the following
events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earrings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option right or warrant to subscribe therefor;
or
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(c) a dissolution, liquidation, merger, consolidation or
winding up of the Company or a sale of all or substantially all of its
property, assets and business as an entirety shall be proposed;
then, in any one or more of said events, the Company shall give written notice
of such event at least 20 days prior to the date fixed as a record date for the
dividend or distribution or the date of closing the transfer books for the
determination of the stockholders entitled to be issued any convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect therein shall not affect the validity
of any action taken in connection with the declaration or payment of any such
dividend, or the issuance of any convertible or exchangeable securities, or
subscription rights, options or warrants, or any proposed dissolution,
liquidation, merger, consolidation, winding up or sale.
10. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been duly made when
delivered, or mailed by registered or certified mail; return receipt requested:
(a) If to a Holder, to the address of such Holder as shown on the books
of the Company; or
(b) If to the Company, to the address set forth in Section 3.1 hereof,
or to such other address as the Company may designate by notice to the
Holders.
11. SUPPLEMENTS AND AMENDMENTS. The Company and the Guarantor may from
time to time supplement or amend this Agreement without the approval of any
Holders in order to cure any ambiguity, to correct or supplement any provision
contained herein which may be defective or inconsistent with any provision
herein, or to make any other provisions in regard to matters or questions
arising hereunder which the Company and the Guarantor may deem necessary or
desirable and which the Company and the Guarantor deem shall not adversely
affect the interests of any other Holders of Warrant Certificates. Other
amendments to this Agreement may be made only with the written consent of a
majority of Holders.
12. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
13. TERMINATION. This Agreement shall terminate at the close of
business on the expiration of the Warrant Exercise Term. Notwithstanding the
foregoing, the indemnification provisions of Section 5.3 hereof shall survive
such termination.
14. GOVERNING LAW: Submission to Jurisdiction. This Agreement and each
Warrant Certificate issued hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
entered into and to be performed wholly within said State.
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The Company, the Guarantor and each of the Holders hereby agree that
any action, proceeding or claim against it arising out of, or relating in any
way to, this Agreement shall be brought and enforced in the courts of the State
of New York, and any Federal court located in the County of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive.
The Company, the Guarantor and each of the Holders hereby irrevocably waives any
objection to such exclusive jurisdiction or inconvenient forum. Any such process
or summons to be served upon any of the Company, the Guarantor and any of the
Holders (at the option of the party bringing such action, proceeding or claim)
may be served by transmitting a copy thereof, by registered or certified mail,
return receipt requested, postage prepaid, addressed to it at the address as set
forth in Section 10 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the party so served in any action, proceeding or
claim. The Company and each Holder, by its acceptance of a Warrant Certificate,
agrees that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding
between the parties hereto and supersedes all prior agreements and
understandings, written or oral, with respect to the subject matter hereof.
16. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid and unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
17. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
18. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Guarantor and any other Holder(s) of the Warrant Certificates or Warrant
Securities any legal or equitable right, remedy or claim under this Agreement;
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Guarantor and any other such Holder(s).
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
MINRAD INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
XXXXX XXXXXXXXX PARTNERS LP
By KKP Management LLC, General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Nonmember Manager
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SCHEDULE A
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The principal amount of the Line of Credit by and between the Company
and Wachovia Bank, N.A. shall not exceed an aggregate of $800,000.
[FORM OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, OR TRANSFERRED IN
THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION UNDER FEDERAL AND STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE REGISTERED HOLDER SATISFACTORY
TO COUNSEL FOR THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT, AND UNDER SUCH LAWS.
THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO
HEREIN.
No. W-
______________Warrants
WARRANT CERTIFICATE
This Warrant Certificate certifies that , or its assigns, is the holder
of Warrants to purchase initially, at any time after the date hereof until 5:30
p.m. New York time on the last day of the Warrant Exercise Term ("Expiration
Date"), up to fully paid and non-assessable shares of common stock, par value
$0.01 per share ("Common Stock"), of Minrad Inc., a Delaware corporation (the
"Company"), (shares of the Common Stock are referred to herein individually as a
"Security" and collectively as the "Securities"), at the initial exercise price,
subject to adjustment in certain events (the "Exercise Price"), of $1.00 upon
surrender of this Warrant Certificate and payment of the Exercise Price at an
office or agency of the Company, but subject to the conditions set forth herein
and in the Amended and Restated Warrant Agreement dated as of November 2, 2001,
between the Company and Xxxxx Xxxxxxxxx Partners L.P. (the "Warrant Agreement").
Capitalized terms used herein and not defined herein shall have the meanings
ascribed to them in the Warrant Agreement. Payment of the Exercise Price shall
be made by certified or official bank check payable to the order of the Company
or by any other method permitted by the Warrant Agreement.
No Warrant may be exercised after 5:30 p.m., New York, time, on the
Expiration Date, at which time all Warrants evidenced hereby, unless exercised
prior thereto, hereby shall thereafter be void.
The Warrants evidenced by this Warrant Certificate are part of a duly
authorized issue of Warrants issued pursuant to the Warrant Agreement, which
Agreement is hereby incorporated by reference in and made a part of this
instrument and to which reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of
the Company and the Holders of the Warrants.
The Warrant Agreement provides that upon the occurrence of certain
events the Exercise Price and the type and/or number of the Company's securities
issuable thereupon may, subject to certain conditions, be adjusted. In such
event, the Company will, at the request of the Holder, issue a new Warrant
Certificate evidencing the adjustment in the Exercise Price and the number
and/or type of securities issuable upon the exercise of the Warrants; PROVIDED,
HOWEVER, that the failure of the Company to issue such new Warrant Certificates
shall not in any way change, alter, or otherwise impair, the rights of the
Holder as set forth in the Warrant Agreement.
Upon due presentment for registration of transfer of this Warrant
Certificate and the executed form of assignment as attached hereto at the office
of the Company set forth in the Warrant Agreement, a new Warrant Certificate or
Warrant Certificates of like tenor and evidencing in the aggregate a like number
of Warrants shall be issued to the transferee(s) in exchange for this Warrant
Certificate, subject to the limitations provided herein and in the Warrant
Agreement, without any charge except for any tax or other governmental charge
imposed in connection with such transfer.
Upon the exercise of less than all of the Warrants evidenced by this
Certificate, the Company shall forthwith issue to the Holder hereof a new
Warrant Certificate representing such unexercised Warrants.
The Company may deem and treat the Holder(s) hereof as reflected on the
records of the Company as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, and of any distribution to the
Holder(s) hereof, and for all other purposes, and the Company shall not be
affected by any notice to the contrary.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated as of , 2001
---------------
MINRAD INC.
[SEAL] By: _________________________
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
By: _________________________
[____________________]
Secretary
Attest:
-------------------------------------
-------------------------------------
-------------------------------------
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[FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1(a)]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant Certificate, to purchase shares of Common Stock, par
value $.01 per share, of Minrad Inc.
In accordance with the terms of Section 3.1(a) of the Warrant Agreement
dated as of _____________, 2001, between Minrad Inc. and Xxxxx Xxxxxxxxx
Partners L.P., the undersigned requests that a certificate for such securities
be registered in the name of ___________________________ whose address is
________________________ and that such Certificate be delivered to whose address
is __________________________
Dated: __________________________, 20__
____________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
____________________________________________
(Insert Social Security or Other Identifying
Number of Holder)
[FORM OF ASSIGNMENT]
(To be executed by the Holder if such Holder
desires to transfer the Warrant Certificate.)
FOR VALUE RECEIVED ______________________________________________________ hereby
sells, assigns and transfers unto _____________________________________________
(Please print name and address of transferee)
this Warrant Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Warrant Certificate on the books of Minrad, Inc., with full power of
substitution.
Dated:____________________, 2001
____________________________________________
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant Certificate.)
____________________________________________
(Insert Social Security or Other Identifying
Number of Holder)
