Exhibit 2.1
MERGER AGREEMENT AND PLAN OF EXCHANGE
AMONG
TECHNOLOGY ACQUISITION CORPORATION,
TECHNOLOGY ACQUISITION SUBSIDIARY, INC.,
CERTAIN MAJOR SHAREHOLDERS
AND
MINRAD INC.
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions..............................................................1
2. Plan of Reorganization...................................................6
3. Terms of Merger..........................................................6
4. Exchange of Certificates................................................11
5. Representations and Warranties of MINRAD................................13
6. Representations and Warranties of TAC, AS and the Major Shareholders....15
7. Closing.................................................................22
8. Actions Prior to Closing................................................22
9. Conditions Precedent to the Obligations of MINRAD.......................23
10. Conditions Precedent to the Obligations of TAC and AS..................25
11. Survival and Indemnification...........................................25
12. Nature of Representations..............................................28
13. Documents at Closing...................................................28
14. Finder's Fees..........................................................29
15. Post-Closing Covenants.................................................30
16. Miscellaneous..........................................................30
Schedule 1A - MINRAD Disclosure Documents
Schedule 1B - TAC Disclosure Documents
Schedule 5(c) - Outstanding Warrants and Convertible Debt of MINRAD
Exhibit A - Certificate of Merger
i
MERGER AGREEMENT AND PLAN OF EXCHANGE
This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of June 16, 2004, by and among TECHNOLOGY ACQUISITION
CORPORATION, a Nevada corporation (hereinafter, "TAC"), TECHNOLOGY ACQUISITION
SUBSIDIARY, INC., a newly-formed Delaware corporation (hereinafter, "AS"), and
the undersigned holders of more than 5% of the outstanding common stock of TAC
(hereinafter the "Major Shareholders"), on the one hand, and MINRAD INC., a
Delaware corporation (hereinafter "MINRAD"), on the other hand.
RECITALS
WHEREAS, the parties hereto desire that MINRAD shall be acquired by TAC
through the merger ("Merger") of AS with and into MINRAD, with MINRAD as the
surviving corporation ("Surviving Corporation"), pursuant to this Agreement and
the Delaware General Corporation Law ("DGCL"); and
WHEREAS, the parties desire to provide for certain undertakings,
conditions, representations, warranties and covenants in connection with the
transactions contemplated hereby;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the meanings set forth below:
"Affiliates" means with respect to any Person (first Person), (a) each
other Person that controls, is controlled by, or is under common control with,
such first Person, (b) each other Person that holds a Material Interest in such
first Person, (c) each other Person that serves as a director, officer, general
partner, executor or trustee of such first Person (or in a similar capacity),
(d) each other Person in which such first Person holds a Material Interest and
(e) each other Person with respect to which such first Person serves as a
general partner or a trustee (or in a similar capacity). For purposes of this
definition "Material Interest" means direct or indirect beneficial ownership (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
voting securities or other voting interests representing at least 10% of the
outstanding voting power of an entity or equity securities or other equity
interests representing at least 10% of the outstanding equity securities or
equity interests in an entity.
"Agreement" is defined in the preamble hereto.
"Closing" has the meaning provided in Section 7.
"Code" means the Internal Revenue Code of 1986, as amended.
"Constituent Corporations" means MINRAD and AS collectively.
"Contract" means any agreement, contract, license, lease, instrument,
note, bond, mortgage, indenture, guarantee or other legally binding commitment
or obligation, whether oral or written.
"Effective Time" has the meaning provided in Section 7.
"Encumbrance" means with respect to any Person any mortgage, deed of
trust, pledge, lien, security interest, charge, claim or other security
arrangement of any nature whatsoever, whether voluntarily or involuntarily
given, including any conditional sale or title retention arrangement, and any
assignment, deposit arrangement or lease intended as, or having the effect of,
security and any filed financing statement or other notice of any of the
foregoing (whether or not an Encumbrance is created or exists at the time of the
filing).
"Environmental Law" means any and all applicable Legal Requirements, and
without limiting the foregoing, any regulations, orders, decrees, judgments or
injunctions promulgated or entered into by any Governmental Entity, relating to
the preservation or reclamation of natural resources, or to the management,
Release (as hereinafter defined) or threatened Release of Hazardous Material (as
hereinafter defined), including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.ss.ss.9601 et
seq. ("CERCLA"), the Federal Water Pollution Control Act, 33 U.S.C.ss.ss.1251 et
seq., the Clean Air Act, 42 X.X.X.xx. 7401 et seq., the Toxic Substances Control
Act, 15 X.X.X.xx. 2601 et seq., the Occupational Safety and Health Act, 29
U.S.C.ss.651 et seq., the Emergency Planning and Community Right-to-Know Act of
1986, 42 U.S.C.ss.11001 et. seq., the Safe Drinking Water Act, 42
U.S.C.ss.300(f) et seq., the Hazardous Materials Transportation Act, 49
U.S.C.ss.ss.1801 et seq., and any similar or implementing state or local law,
and all amendments or regulations promulgated thereunder.
"Environmental Liabilities" means all claims, demands, causes of action,
liabilities, investigations, judgments, damages, costs and expenses (including,
without limitation, costs of suit, reasonable attorneys' fees, costs of
negotiation, consulting fees and expert fees, Remedial Action costs, penalties,
fines and punitive damages, whether in respect of death, personal injury,
property damage, cleanup and removal expense, cost recovery contribution or
compensation, under Environmental Laws in effect prior to or as of the Closing,
which arise from (i) the Release of Hazardous Materials prior to the Closing at,
on, in or under any Facilities of MINRAD, (ii) any violation by MINRAD of any
Environmental Law in effect at the time of the Closing Date, due to conditions
existing or events occurring prior to the Closing , or (iii) the off-site
treatment, storage or disposal of Hazardous Materials from any of the Facilities
of MINRAD at any time prior to the Closing.
"Escrow Shares" means the shares of TAC stock to be deposited by TAC with
the Escrow Agent pursuant to Section 3(d)(5).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States.
2
"Governmental Authorization" means any permit, license, franchise,
approval, consent, permission, confirmation, endorsement, waiver, certification,
registration, qualification, clearance or other authorization issued, granted,
given or otherwise made available by or under the authority of any Governmental
Entity or pursuant to any Legal Requirement.
"Governmental Entity" means any nation, state, municipality and any
federal, state, local, foreign, provincial or supranational court or
governmental agency, authority, instrumentality or regulatory body.
"Hazardous Material" means all explosive or regulated radioactive
materials or substances; petroleum and petroleum products (including crude oil
or any fraction thereof); asbestos or asbestos-containing materials; and any
hazardous or toxic materials, wastes or chemicals designated, defined, listed or
regulated as such pursuant to any Environmental Law.
"Indebtedness" means indebtedness for borrowed money or the equivalent or
represented by notes, bonds or other similar instruments or letters of credit
(or reimbursement agreements in respect thereof) or representing the balance
deferred and unpaid of the purchase price of any property (other than trade
payables constituting current liabilities and personal property leases), and
including without limitation capital lease obligations, including all accrued
and unpaid interest thereon, and applicable prepayment, breakage or other
premiums, fees or penalties and the costs of discharging such indebtedness, all
as determined in accordance with GAAP.
"Intellectual Property" means (a) domestic United States and foreign
letters patent, patents and patent applications, (b) software; (c) inventions,
designs, processes, formulas, know-how and trade secrets; (d) trade names,
trademarks, service marks, and United States and foreign trademark registrations
and applications, service xxxx registrations and applications; (e) copyrights,
copyright registrations and copyright applications, and (f) internet websites
and domain names.
"Legal Requirement" shall mean any federal, state, local, provincial,
foreign, international, multinational or other statute, law, treaty, rule,
regulation, guideline, administrative order, directives, ordinance, constitution
or principle of common law (or any interpretation thereof by a Governmental
Entity).
"Material Adverse Effect" means:
(a) with respect to MINRAD, an effect that would be materially
adverse: (i) to the business, results of operation or financial condition of
MINRAD; (ii) to MINRAD's ability to perform any of its material obligations
under this Agreement or to consummate the Merger; or (iii) to the ability of the
Surviving Corporation or TAC to conduct the business of MINRAD following the
Effective Time or the ability of MINRAD to exercise full rights of ownership of
MINRAD or its assets or business; or
(b) with respect to TAC, an effect that would be materially adverse
(i) to the business, results of operation, or financial conditions of TAC and
its Subsidiaries, considered as a whole; or (ii) to TAC's ability to perform any
of its material obligations under this Agreement or to consummate the Merger; or
(iii) to the ability of the Surviving Corporation or TAC to conduct the business
of MINRAD following the Effective Time or the ability of TAC to exercise full
rights of ownership of MINRAD or its assets or business;
3
provided, however, that in determining whether a Material Adverse Effect has
occurred there shall be excluded any effect on the referenced party the cause of
which is (i) general changes in conditions in the pharmaceuticals, medical
device, or health care industries, in the financial markets or in the global or
United States economy so long as any such change does not materially affect the
referenced party to a materially different extent than other similarly situated
Persons, and (ii) any action or omission of MINRAD or TAC or AS taken with the
prior written consent of TAC or MINRAD, as applicable, in contemplation of the
Merger.
"Merger" is defined in the recitals hereto.
"MINRAD Disclosure Documents" means the Confidential Private Placement
Memorandum of MINRAD dated February 2, 2004, and the Supplement No. 1 thereto
dated March 15, 2004, as amended or supplemented by Schedule 1A to this
Agreement. Any information with respect to a matter that is disclosed by MINRAD
to TAC for any purpose in the Disclosure Documents shall be deemed to be
disclosed for all purposes hereunder provided that such information sufficiently
identifies the matter in question in all material respects.
"MINRAD Financial Statements" means (i) the audited balance sheet of
MINRAD as of September 30, 2003 and the related statements of income and
expense, cash flows and stockholders' equity (including related notes, if any)
for the 12 months ended September 30, 2003 and (ii) the balance sheet of MINRAD
as of March 31, 2004 (unaudited) and the related statements of income and
expense, cash flows and changes in stockholders' equity (including related
notes, if any).
"MINRAD Option Plan" means the MINRAD 1996 Stock Option Plan identified in
the MINRAD Disclosure Documents, a copy of which has been provided to TAC; and
"Options" means all Rights to purchase MINRAD Stock thereunder.
"MINRAD Stock" means the common stock, $.01 par value per share, of
MINRAD.
"Optionees" means all Persons who have been granted Options under the
MINRAD Option Plan.
"Person" means any individual and any corporation, partnership, limited
liability company, firm, trust, or other business entity and any Governmental
Entity.
"Release" shall have the same meaning as in CERCLA.
"Remedial Action" shall mean (a) "remedial action" as such term is defined
in CERCLA and (b) all other action required by any Governmental Entity to
respond to a Release or threatened Release of Hazardous Material.
4
"Rights" means warrants, options, rights, convertible securities and other
arrangements or commitments which obligate an entity to issue or dispose of any
of its capital stock, and stock appreciation rights, performance units and other
similar stock-based rights whether they obligate the issuer thereof to issue
stock or other securities or to pay cash.
"SEC" means the Securities and Exchange Commission.
"SEC Documents" means all forms, reports and documents filed, or required
to be filed, by Purchaser pursuant to the Securities Laws.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Laws" means the Securities Act; the Exchange Act; the
Investment Company Act of 1940, as amended; the Investment Advisers Act of 1940,
as amended; the Trust Indenture Act of 1939, as amended; the rules and
regulations of the Securities and Exchange Commission promulgated thereunder;
and the blue sky and other Legal Requirements of any state that are applicable
to the purchase and sale of securities generally.
"Stockholders" means all Persons who hold issued and outstanding shares of
MINRAD Stock as of the Effective Time.
"Subsidiary" or "Subsidiaries" means with respect to any party, any
corporation, company, partnership or other organization, whether incorporated or
unincorporated, which is consolidated with such party for financial reporting
purposes.
"TAC Disclosure Documents" means all publicly available documents filed by
TAC with the SEC, as amended or supplemented by Schedule 1B to this Agreement.
"TAC Stock" means the common stock, par value $.01 per share, of TAC.
"Tax," collectively, "Taxes" means all taxes, however denominated,
including any interest, penalties, criminal sanctions or additions to tax
(including, without limitation, any underpayment penalties for insufficient
estimated tax payments) or other additional amounts that may become payable in
respect thereof (or in respect of a failure to file any Tax Return when and as
required), imposed by any Governmental Entity, which taxes shall include,
without limiting the generality of the foregoing, all income taxes, payroll and
employment taxes, withholding taxes (including withholding taxes in connection
with amounts paid or owing to any employee, independent contractor, creditor,
stockholder or other person or entity), unemployment insurance taxes, social
security (or similar) taxes, sales and use taxes, excise taxes, franchise taxes,
gross receipts taxes, occupation taxes, real and personal property taxes, stamp
taxes, value added taxes, transfer taxes, profits or windfall profits taxes,
licenses in the nature of taxes, estimated taxes, severance taxes, duties
(custom and others), workers' compensation taxes, premium taxes, environmental
taxes (including taxes under Section 59A of the Code) , disability taxes,
registration taxes, alternative or add-on minimum taxes, estimated taxes, and
other fees, assessments, charges or obligations of the same or of a similar
nature.
"Tax Return," collectively, "Tax Returns" means all returns, reports,
estimates, information statements or other written submissions, and any
schedules or attachments thereto, required or permitted to be filed pursuant to
Legal Requirements of any Governmental Entity Tax authority, including but not
limited to, original returns and filings, amended returns, claims for refunds,
information returns, ruling requests, administrative or judicial filings,
accounting method change requests, responses to revenue agents' reports
(federal, state or local) and settlement documents.
5
"Transaction Expenses" means all fees, costs, expenses and disbursements,
incurred by the Stockholders, the Optionees and/or MINRAD in connection with the
transactions contemplated by this Agreement, the Merger and the other agreements
referenced or provided for herein, including, without limitation, (a) the fees
and expenses of any legal counsel retained by any Major Shareholder, TAC, or
MINRAD; (b) the fees and expenses of any accountants of MINRAD including any
indirect fees and expenses resulting from outsourcing or through service
agreements; (c) any amounts payable in accordance with Section 16(l) of this
Agreement; and (d) any fees and expenses of any other counsel, accountants,
financial advisors or other similar professionals with respect to services
rendered to the Major Shareholder or MINRAD in connection with the transactions
contemplated by this Agreement.
In addition, the following terms shall be interpreted as set forth below:
(a) The words "hereof," "herein," and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provisions of this Agreement.
(b) Terms defined in the singular shall have a comparable meaning when
used in the plural, and vice-versa.
(c) References to the "Knowledge" of an entity shall refer to the actual
knowledge of the directors and officers of the entity, and the knowledge of any
fact or matter which any person would have following inquiries of those
employees and directors or former employees and directors of the entity of whom
such persons would reasonably believe would have actual knowledge of such
matters presented.
(d) References to an "Exhibit" or to a "Schedule" are, unless otherwise
specified, to one of the Exhibits or Schedules attached to or referenced in this
Agreement, and reference to a "Section" is, unless otherwise specified, to one
of the Sections of this Agreement.
2. PLAN OF REORGANIZATION. The parties to this Agreement do hereby agree
that AS shall be merged with and into MINRAD upon the terms and conditions set
forth herein and in accordance with the provisions of the Delaware General
Corporation Law. It is the intention of the parties hereto that this transaction
qualify as a tax-free reorganization under Section 368(a)(2)(E) of the Internal
Revenue Code of 1986, as amended, and related sections thereunder.
3. TERMS OF MERGER. In accordance with the provisions of this Agreement
and the requirements of applicable law, AS shall be merged with and into MINRAD
as of the Effective Time (the terms "Closing" and "Effective Time" are defined
in Section 7 hereof). MINRAD shall be the surviving corporation (hereinafter
sometimes the "Surviving Corporation") and the separate existence of AS shall
cease when the Merger shall become effective. Consummation of the Merger shall
be upon the following terms and subject to the conditions set forth herein:
6
(a) Corporate Existence.
(1) Commencing with the Effective Time, the Surviving
Corporation shall continue its corporate existence as a Delaware corporation and
(i) it shall thereupon and thereafter possess all rights, privileges, powers,
franchises and property (real, personal and mixed) of each of the Constituent
Corporations; (ii) all debts due to either of the Constituent Corporations, on
whatever account, all causes in action and all other things belonging to either
of the Constituent Corporations shall be taken and deemed to be transferred to
and shall be vested in the Surviving Corporation by virtue of the Merger without
further act or deed; and (iii) all rights of creditors and all liens, if any,
upon any property of any of the Constituent Corporations shall be preserved
unimpaired, limited in lien to the property affected by such liens immediately
prior to the Effective Time, and all debts, liabilities and duties of the
Constituent Corporations shall thenceforth attach to the Surviving Corporation.
(2) At the Effective Time, (i) the Certificate of
Incorporation and the By-laws of MINRAD, as existing immediately prior to the
Effective Time, shall be and remain the Certificate of Incorporation and By-laws
of the Surviving Corporation; (ii) the members of the Board of Directors of the
Surviving Corporation holding office immediately prior to the Effective Time
shall remain as the members of the Board of Directors of the Surviving
Corporation (if on or after the Effective Time a vacancy exists on the Board of
Directors of the Surviving Corporation, such vacancy may thereafter be filled in
a manner provided by applicable law and the By-laws of the Surviving
Corporation); and (iii) until the Board of Directors of the Surviving
Corporation shall otherwise determine, all persons who hold offices of the
Surviving Corporation at the Effective Time shall continue to hold the same
offices of the Surviving Corporation.
(b) Events Occurring Immediately Prior to the Effective Time.
Immediately prior to the Merger becoming effective, on the day of such
effectiveness:
(1) MINRAD shall consummate the Merger under Section 251 of
the Delaware General Corporation Law by filing a Delaware Certificate of Merger
between MINRAD and AS with the Secretary of State; and
(2) TAC shall consummate the exchange of TAC Stock for MINRAD
Stock under Section 92A.200 of the Nevada General Corporation Law by filing
Articles of Exchange with the Nevada Department of State.
(c) Conversion of Securities.
As of the Effective Time and without any action on the part of TAC, AS,
MINRAD or the holders of any of the securities of any of these corporations,
each of the following shall occur:
(1) Each share of MINRAD Stock issued and outstanding immediately
prior to the Effective Time, other than any shares of MINRAD Stock to be
canceled pursuant to Section 3(d)(2) shall automatically be converted into the
right to receive one share of TAC Stock. All such shares of MINRAD Stock shall
no longer be outstanding and shall automatically be canceled and shall cease to
exist, and each certificate previously evidencing any such shares shall
thereafter represent the right to receive, upon the surrender of such
certificate in accordance with the provisions of Section 4 hereof, certificates
evidencing such number of shares of TAC Stock, respectively, into which such
shares of MINRAD Stock were converted. No fractional shares of TAC Stock will be
issued in the Merger; any fractional share otherwise issuable shall be rounded
to the nearest whole share. The holders of such certificates previously
evidencing shares of MINRAD Stock outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such shares of MINRAD Stock
except as otherwise provided herein or by law;
7
(2) Any shares of MINRAD capital stock held in the treasury of
MINRAD immediately prior to the Effective Time shall automatically be canceled
and extinguished without any conversion thereof and no payment shall be made
with respect thereto;
(3) All shares of capital stock of AS issued and outstanding
immediately prior to the Effective Time shall automatically converted into one
share of common stock of the Surviving Corporation, which shall be owned by TAC;
(d) Other Matters.
(1) MINRAD Stock Options.
(A) At the Effective Time, the MINRAD Option Plan shall be
adopted by and converted into a plan applicable to TAC and its subsidiaries
(including MINRAD), with substantially the same terms and conditions except that
(i) options granted under the plan will be options to purchase TAC Stock, and
(ii) the aggregate number of additional shares of TAC Stock that will be
purchasable under the plan (not including shares purchasable under outstanding
MINRAD options) will be 5,000,000 (the MINRAD Option Plan as so adopted and
converted is hereafter referred to as the "TAC Option Plan").
(B) At the Effective Time, each outstanding MINRAD Option,
whether or not then exercisable, will automatically be converted into an option
to purchase TAC Stock. Each option so converted will continue to have, and be
subject to, substantially the same terms and conditions set forth in the MINRAD
Stock Option Plan immediately prior to the Effective Time (including any
repurchase rights or vesting provisions), except that (i) each converted MINRAD
Option will be exercisable (or will become exercisable in accordance with its
terms) for the same number of shares of TAC Stock that were issuable upon
exercise of such MINRAD Option immediately prior to the Effective Time and (ii)
the per share exercise price for the shares of TAC Stock issuable upon exercise
of such converted MINRAD Option will be equal to the exercise price per share of
MINRAD Stock at which such MINRAD Option was exercisable immediately prior to
the Effective Time. Continuous employment with MINRAD or its subsidiaries shall
be credited to the optionee for purposes of determining the vesting of all
converted MINRAD Options after the Effective Time.
(2) MINRAD Warrants. At the Effective Time, each outstanding warrant
to purchase MINRAD Stock (a "MINRAD Warrant"), whether or not then exercisable,
will be automatically be converted into a warrant to purchase TAC Stock. Each
warrant so converted will continue to have, and be subject to, substantially the
same terms and conditions set forth in the warrant agreement with respect to the
warrant immediately prior to the Effective Time, except that (i) each converted
MINRAD Warrant will be exercisable (or will become exercisable in accordance
with its terms) for the same number of shares of TAC Stock that were issuable
upon exercise of such MINRAD Warrant immediately prior to the Effective Time and
(ii) the per share exercise price for the shares of TAC Stock issuable upon
exercise of such converted MINRAD Warrant will be equal to the exercise price
per share of MINRAD Stock at which such MINRAD Warrant was exercisable
immediately prior to the Effective Time.
8
(3) MINRAD Convertible Debt. At the Effective Time, the terms of all
of the outstanding indebtedness of MINRAD that the holder has the right under
the governing documents to convert into MINRAD Stock ( "MINRAD Convertible
Debt"), whether or not then convertible, will automatically be amended to
provide for the conversion of the debt into TAC Stock. The MINRAD Convertible
Debt so amended will continue to have, and be subject to, substantially the same
terms and conditions set forth in the governing documents immediately prior to
the Effective Time, except that (i) the MINRAD Convertible Debt will be
convertible (or will become convertible in accordance with its terms) for the
same number of shares of TAC Stock that were issuable upon conversion of the
MINRAD Convertible Debt immediately prior to the Effective Time and (ii) the per
share conversion price for the shares of TAC Stock issuable upon conversion of
the MINRAD Convertible Debt will be equal to the conversion price per share of
MINRAD Stock at which such MINRAD Convertible Debt was exercisable immediately
prior to the Effective Time.
(4) Dissenting Shares.
(A) Notwithstanding anything in this Agreement to the
contrary, any shares of MINRAD Stock held by any Person (a "Dissenting
Stockholder") who has demanded and perfected his right for appraisal of such
shares ("Dissenting Shares") in accordance with the DGCL and who, as of the
Effective Time, has not effectively withdrawn or lost such right to appraisal
shall not be converted as described in Section 3(c)(1) but shall become the
right to receive such consideration as may be determined to be due such
Dissenting Stockholder pursuant to Section 262 of the DGCL and shall not be
entitled to receive his applicable portion of the Merger consideration;
provided, however, that if, in accordance with such Section of the DGCL, any
Dissenting Stockholder shall fail to perfect, withdraw or otherwise lose his
right to appraisal under such Section of the DGCL, the Dissenting Shares held by
such Dissenting Stockholder shall thereupon be deemed to have been converted
into and to have become exchangeable for, as of the Effective Time, the right,
to receive, in accordance with this Section 3(d)(2) and, except as set forth in
Section 4, without interest or dividends thereon), for each share (or fraction
thereof) of MINRAD Stock, the Merger Consideration (or a corresponding fraction
thereof).
(B) MINRAD shall give TAC (i) prompt notice of any written
demands for appraisal of any shares of the MINRAD Stock, withdrawals of such
demands, and any other instruments served pursuant to the DGCL that relate to
such demands received by MINRAD and (ii) the opportunity to participate in all
negotiations and proceedings with respect to demands for appraisal under the
DGCL. MINRAD shall not, except with the prior written consent of Purchaser,
which consent shall not be unreasonably withheld, voluntarily make or offer to
make any payments in excess of $5,000 in the aggregate, with respect to any
demands for appraisal and/or refusals to consent of holders of MINRAD Stock or
offer to settle or settle any such demands and/or refusals to consent.
9
(5) At the Closing, the existing directors of TAC shall nominate and
elect to the Board of Directors of TAC the persons designated by MINRAD, and all
of the persons serving as directors and officers of TAC immediately prior to the
Closing shall thereafter resign from all of their positions with TAC, effective
immediately after the Closing.
(6) Upon the effectiveness of the Merger, TAC shall assume and will
be bound by the terms of all of the agreements relating to registration of
MINRAD Stock under the Securities Act that are in the MINRAD Disclosure
Documents, in each case so as to provide for the registration of TAC Stock
rather than MINRAD Stock. TAC will execute any agreement or other instrument
MINRAD deems necessary to confirm its agreement to comply with the registration
rights granted by MINRAD to holders of MINRAD Stock.
(7) Escrow.
(A) Establishment of Escrow. At or prior to the Closing, the
Major Shareholders and MINRAD will enter into an escrow agreement (the "Share
Escrow Agreement") with a financial institution mutually to be agreed upon by
them (the "Escrow Agent"), providing for the escrow of 2,402,500 shares of TAC
Stock (the "Escrow Shares"), which may become deliverable to them if Xxxxx
McAfee Capital Partners, LLC ("Xxxxx") obtains certain financings for TAC under
the terms of an Engagement Letter between Xxxxx and MINRAD, or which may be
returned to TAC and canceled if the financings are not obtained. The Share
Escrow Agreement shall be in a form mutually agreed upon by MINRAD and the Major
Shareholders and acceptable to the Transfer Agent.
(B) Delivery of Escrow Shares. At the Closing, Xxxxx will
deliver the Escrow Shares to the Escrow Agent to be held under the terms of the
Share Escrow Agreement.
(8) Registration Rights. Reference is made to certain Registration
Rights Agreements entered into by and among MINRAD, on the one hand, and (A) the
purchasers in a private placement for up to $4,000,000 of MINRAD Stock, (B)
persons who converted certain convertible debt of MINRAD, and (C) persons who
hold or have exchanged MINRAD Warrants, (the "Registration Rights Agreements").
At the Effective Time the Registration Rights Agreements will automatically and
without further action by the parties thereto be converted into and become
obligations of TAC to register TAC Stock as "Registrable Securities" (as defined
in the Registration Rights Agreements) under the Registration Rights Agreements
as if it were the MINRAD Stock referred to. In the event of any dispute between
TAC and any other party to the Registration Rights Agreement concerning the
right of the other party to have shares registered by TAC under the Registration
Rights Agreements, if a court of competent jurisdiction shall uphold the right
of the other party to have shares registered by TAC, then in addition to any
other remedy provided by the court, TAC shall indemnify the other party for all
damages and costs, including attorneys fees, incurred by the other party in
pursuing its rights under the Registration Rights Agreements.
10
4. EXCHANGE OF CERTIFICATES.
(a) Exchange Agent. TAC shall select an institution reasonably
acceptable to MINRAD to act as the exchange agent (the "Exchange Agent") in the
Merger.
(b) Exchange Fund. Promptly after the Effective Time, TAC shall make
available to the Exchange Agent for exchange in accordance with this Section,
the shares of TAC Stock (such shares of TAC Stock, are hereinafter referred to
as the "Exchange Fund") issuable pursuant to Section 3 in exchange for
outstanding shares of Minrad Stock. No fractional shares of TAC Stock shall be
issued in connection with the Merger.
(c) Exchange Procedures. Promptly after the Effective Time, TAC
shall instruct the Exchange Agent to mail to each holder of record of a
certificate or certificates ("Certificates") which immediately prior to the
Effective Time represented outstanding shares of MINRAD Stock whose shares were
converted into the right to receive shares of TAC Stock pursuant to Section 3,
(i) a letter of transmittal in customary form (that shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Exchange Agent and shall
contain such other provisions as TAC may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for certificates representing shares of TAC Stock. Upon surrender of
Certificates for cancellation to the Exchange Agent together with such letter of
transmittal, duly completed and validly executed in accordance with the
instructions thereto, and such other documents as may reasonably be required by
the Exchange Agent, the holders of such Certificates shall be entitled to
receive in exchange therefore certificates representing the number of whole
shares of TAC Stock (after aggregating all Certificates surrendered by such
holder) into which such holder is entitled pursuant to Section 3 and any
dividends or distributions payable pursuant to Section 4(d) and the Certificates
so surrendered shall forthwith be canceled. Until so surrendered, outstanding
Certificates will be deemed from and after the Effective Time, for all corporate
purposes, to evidence only the ownership of the number of full shares of TAC
Stock into which such shares of MINRAD Stock shall have been so converted and
any dividends or distributions payable pursuant to Section 4(d) No interest will
be paid or accrued on any unpaid dividends or distributions payable to holders
of Certificates. In the event of a transfer of ownership of shares of MINRAD
Stock that is not registered in the transfer records of a MINRAD, a certificate
representing the proper number of shares of TAC Stock may be issued to a
transferee if the Certificate representing such shares of MINRAD Stock is
presented to the Exchange Agent, accompanied by all documents required to
evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid.
(d) Distributions With Respect to Unexchanged Shares. No dividends
or other distributions declared or made after the date of this Agreement with
respect to TAC Stock with a record date after the Effective Time will be paid to
the holders of any MINRAD Certificates with respect to the shares of TAC Stock
represented thereby until the holders of record of such Certificates shall
surrender such Certificates. Subject to applicable law, following surrender of
any such Certificates, the Exchange Agent shall deliver to the record holders
thereof, without interest, (i) promptly after such surrender the amount of
dividends or other distributions with a record date after the Effective Time
heretofore paid with respect to such whole shares of TAC Stock, and (ii) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Time but prior to surrender and a payment date
occurring after surrender, payable with respect to such whole shares of TAC
Stock.
11
(e) Required Withholding. Each of the Exchange Agent, TAC and the
Surviving Corporation shall be entitled to deduct and withhold from any
consideration payable or otherwise deliverable pursuant to this Agreement to any
holder or former holder of MINRAD Stock such amounts as may be required to be
deducted or withheld therefrom under the Code or under any provision of state,
local or foreign tax law or under any other applicable Legal Requirement. To the
extent such amounts are so deducted or withheld, such amounts shall be treated
for all purposes under this Agreement as having been paid to the person to whom
such amounts would otherwise have been paid.
(f) Lost, Stolen or Destroyed Certificates. In the event that any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, certificates
representing the shares of TAC Stock into which the shares of MINRAD Stock
represented by such Certificates were converted pursuant to Section 3 and any
dividends or distributions payable pursuant to Section 4(d); provided, however,
that TAC may, in its discretion and as a condition precedent to the issuance of
such certificates representing shares of TAC Stock, cash and other
distributions, require the owner of such lost, stolen or destroyed Certificates
to deliver a bond in such sum as it may reasonably direct as indemnity against
any claim that may be made against TAC, the Surviving Corporation or the
Exchange Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed.
(g) No Liability. Notwithstanding anything to the contrary in this
Section 4, neither the Exchange Agent, TAC, the Surviving Corporation nor any
party hereto shall be liable to a holder of shares of TAC Stock or MINRAD Stock
for any amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(h) Termination of Exchange Fund. Any portion of the Exchange Fund
which remains undistributed to the holders of MINRAD Stock for six months after
the Effective Time shall be delivered to TAC, upon demand, and any holders of
MINRAD Stock who have not theretofore complied with the provisions of this
Section 4 shall thereafter look only to TAC for the shares of TAC Stock and any
dividends or other distributions with respect to TAC Stock to which they are
entitled pursuant to Section 4(d), in each case, without any interest thereon.
(i) Reservation of Shares for Exercise of Warrants and Conversion of
Convertible Debt. TAC shall at all times after the Effective Time reserve
sufficient authorized TAC Stock to provide for the exercise of all MINRAD
Warrants and for the conversion of all MINRAD Convertible Debt and shall permit
the exercise of MINRAD Warrants and conversion of MINRAD Convertible Debt as
provided in Section 3.
(j) No Further Ownership Rights in MINRAD Stock. All shares of TAC
Stock issued in accordance with the terms hereof (including any cash paid in
respect thereof pursuant to Section 4 shall be deemed to have been issued in
full satisfaction of all rights pertaining to such shares of MINRAD Stock, and
there shall be no further registration of transfers on the records of the
Surviving Corporation of shares of MINRAD Stock that were outstanding
immediately prior to the Effective Time.
12
5. REPRESENTATIONS AND WARRANTIES OF MINRAD. MINRAD hereby represents and
warrants as follows:
(a) Organization, Standing and Authority of Purchaser. MINRAD is a
duly incorporated corporation, validly existing and in good standing under the
laws of the State of Delaware with full corporate power and authority to carry
on its business as now conducted and is duly qualified to do business in any
jurisdiction where its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to have such
corporate power and authority or to so qualify would not have a Material Adverse
Effect on MINRAD.
(b) Authorized and Effective Agreement.
(1) MINRAD has all requisite corporate power and authority to
enter into and perform all of its obligations under this Agreement. The
execution, delivery and performance of this Agreement by MINRAD and the
consummation of the Merger and the other transactions contemplated hereby have
been duly authorized by the board of directors of MINRAD, which authorization
constitutes all necessary corporate action in respect thereof and which have not
been rescinded, revoked or otherwise adversely modified.
(2) This Agreement constitutes the legal, valid and binding
obligations of MINRAD, enforceable against it in accordance with its terms
subject, as to enforceability, to bankruptcy, insolvency and other Legal
Requirements of general applicability relating to or affecting creditors' rights
and to general equity principles.
(3) Neither the execution and delivery of this Agreement, nor
consummation of the Merger and the other transactions contemplated hereby, nor
compliance by MINRAD with any of the provisions hereof shall (i) conflict with
or result in a breach of any provision of the certificate of incorporation or
bylaws of MINRAD or (ii) violate any Legal Requirements applicable to MINRAD.
(4) Other than the filing of the Certificate of Merger with
the Delaware Secretary of State and consent of Purchaser's Shareholders, no
consent, approval or authorization of, or declaration, notice, filing or
registration with, any Governmental Entity, or any other Person, is required to
be made or obtained by MINRAD on or prior to the Effective Time in connection
with the execution, delivery and performance of this Agreement and the Plan of
Merger or the consummation of the transactions contemplated hereby or thereby.
(c) Capital Structure of MINRAD.
(1) As of the date of this Agreement, the authorized capital
stock of MINRAD consists of: 100,000,000 shares of MINRAD Stock, of which
22,883,815 shares are presently issued and outstanding, and no shares are held
in treasury. In addition, as of the date of this Agreement, there are MINRAD
Warrants outstanding that are exercisable for up to 4,100,457 shares of MINRAD
stock at the exercise prices and during the periods indicated on the attached
Schedule 5(c), and there are options outstanding under the MINRAD Option Plan
that are exercisable to purchase 2,170,500 shares of MINRAD Stock. Other than
shares of MINRAD Stock that may be issued upon the exercise the MINRAD Warrants
or options under the MINRAD Option Plan between the date of this Agreement and
the Effective Time, no additional shares of MINRAD Stock will be issued between
the date of this Agreement and the Effective Time.
13
(2) All outstanding shares of MINRAD Stock are, and shall be
at Closing, validly issued, fully paid and nonassessable. Except for the MINRAD
Warrants and the MINRAD Convertible Debt, there are no existing options,
convertible or exchangeable securities, calls, claims, warrants, preemptive
rights, registration rights or commitments of any character relating to the
issued or unissued capital stock or other securities of MINRAD. There are no
outstanding stock appreciation, phantom stock or similar rights with respect to
any capital stock of MINRAD. There are no outstanding obligations of MINRAD to
repurchase, redeem or otherwise acquire any shares of capital stock of MINRAD.
(d) Financial Statements of MINRAD. The MINRAD Financial Statements
fairly present the financial position of MINRAD as of the dates thereof and the
results of its operations for the periods covered. Other than as set forth in
the MINRAD Disclosure Documents and except as may otherwise be set forth or
referenced herein, there are no material liabilities or obligations, either
fixed or contingent, not disclosed or referenced in the MINRAD Financial
Statements or in any exhibit or notes thereto other than contracts or
obligations occurring in the ordinary course of business since March 31, 2004.
The MINRAD Financial Statements have been prepared in accordance with generally
accepted accounting principles (except as may be indicated therein or in the
notes thereto and except for footnotes).
(e) Material Adverse Change. Except as set forth in the MINRAD
Disclosure Documents, since March 31, 2004 there has not been any change in the
financial condition, results of operations, prospects or business which would
individually or in the aggregate with any other such changes, of MINRAD except
changes arising in the ordinary course of business, which changes would have a
Material Adverse Effect with respect to MINRAD.
(f) Litigation. Except as set forth in the MINRAD Disclosure
Documents, there are no actions, suits or proceedings instituted, pending or, to
it's Knowledge, any governmental investigation or proceeding, not otherwise
reflected in the MINRAD Disclosure Documents, and, to its Knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against MINRAD.
(g) Absence of Undisclosed Liabilities. MINRAD does not have any
liability (contingent or otherwise) that is material to MINRAD, or that, when
combined with all similar undisclosed liabilities, would be material to MINRAD,
except as disclosed in the MINRAD Financial Statements dated prior to the date
hereof and except for liabilities incurred in the ordinary course of business
subsequent to the Closing.
14
(h) Tax Matters. MINRAD has, or by the Closing will have, filed all
material federal tax, governmental and/or related forms and reports (or
extensions thereof) due or required to be filed in the ordinary course of
business and has (or will have) paid or made adequate provisions for all taxes
or assessments which have become due as of the Closing.
(i) Material Contracts. As part of the MINRAD Disclosure Documents,
MINRAD has previously given TAC copies of or access to all material contracts,
commitments and/or agreements to which MINRAD is a party, including all
contracts covering relationships or dealings with related parties or affiliates.
MINRAD is not in material breach of, or material default under any material
contract.
(j) Subsidiary Corporations. MINRAD has no subsidiary corporations.
(k) Minute Books, Financial Records. MINRAD has made its corporate
financial records, minute books, and other corporate documents and records
available for review to present management of TAC prior to the Closing, during
reasonable business hours and on reasonable notice.
(l) Disclosure. Information regarding MINRAD which has been
delivered by MINRAD to TAC for use in connection with the Merger, is true and
accurate in all material respects.
6. REPRESENTATIONS AND WARRANTIES OF TAC AND AS. TAC and AS hereby jointly
and severally represent and warrant as follows:
(a) Organization, Standing and Authority of Purchaser. TAC and AS
are each duly organized, validly existing and in good standing under the laws of
the State of Nevada and the State of Delaware, respectively, with the full
corporate power to own, lease and operate its property and to carry on its
business as now being conducted and is duly qualified to do business and in good
standing to do business in any jurisdiction where the ownership or leasing of
the property or the conduct of its business requires such qualification, except
where the failure to so qualify would not have a Material Adverse Effect. TAC is
not required to be qualified to do business in any state other than Texas.
(b) Capital Structure of TAC.
(1) As of the date of this Agreement, TAC's authorized capital
stock consists of (i) 100,000,000 shares of TAC Stock, of which 5,050,000 shares
are issued and outstanding, and (ii) 5,000,000 shares of preferred stock par
value $.25 per share, of which no shares are presently issued and outstanding.
At the Effective Time, TAC's authorized capital stock will consist solely of
100,000,000 shares of TAC Stock, of which not more than 5,050,000 shares will be
issued and outstanding, and 5,000,000 shares of preferred stock of which none
will be issued or outstanding. At the Effective Time, AS's authorized capital
stock will consist of 20,000 authorized shares of $.01 par value common stock
("AS's Common Stock"), of which 10,000 shares will be issued and outstanding and
owned by TAC, free and clear of all liens, claims and encumbrances.
15
(2) All outstanding shares of TAC Stock and AS Common Stock
are, and shall be at Closing, validly issued, fully paid and nonassessable. At
the time of this Agreement and at the Closing, there are and there will be no
existing options, convertible or exchangeable securities, calls, claims,
warrants, preemptive rights, registration rights or commitments of any character
relating to the issued or unissued capital stock or other securities of either
TAC or AS. There are no voting trusts, proxies or other agreements, commitments
or understandings of any character to which TAC or AS is a party or by which TAC
or AS is bound with respect to the voting of any capital stock of TAC or AS.
There are no outstanding stock appreciation, phantom stock or similar rights
with respect to any capital stock of TAC or AS. There are no outstanding
obligations to repurchase, redeem or otherwise acquire any shares of capital
stock of TAC or AS.
(3) As of the Closing, the shares of TAC Stock to be issued
and delivered to the MINRAD Shareholders hereunder and in connection herewith
will, when so issued and delivered, constitute duly authorized, validly and
legally issued, fully-paid, nonassessable shares of TAC capital stock, will not
be issued in violation of any preemptive or similar rights and will be issued
free and clear of all liens and encumbrances.
(4) As of the Closing, the shares of TAC Stock to be reserved
for issuance to the holders of options and warrants to purchase MINRAD Stock,
when so issued and delivered in accordance with such options or warrants will,
constitute duly authorized, validly and legally issued, fully-paid,
nonassessable shares of TAC capital stock, will not be issued in violation of
any preemptive or similar rights and will be issued free and clear of all liens
and encumbrances.
(c) Authorized and Effective Agreement.
(1) TAC has the corporate power to enter into this Agreement
and to perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the Merger and the other
transactions contemplated hereby (i) have been duly authorized by the respective
Boards of Directors of TAC and AS and by TAC as the sole stockholder of AS, and
(ii) as of the Closing, will have been duly authorized and approved by the
stockholders of TAC.
(2) This Agreement has been duly executed and delivered by
each of TAC and AS and constitutes a legal, valid and binding obligation of TAC
and AS, enforceable against TAC and AS in accordance with its terms except as
enforcement may be limited by applicable bankruptcy, insolvency or other Legal
Requirements of general applicability relating to or affecting creditor's rights
generally and to general equity principles.
(3) Neither the execution and delivery of this Agreement will
constitute a material breach of any agreement, indenture, mortgage, license or
other instrument or document to which TAC or AS is a party or to which it is
otherwise subject and will not violate any judgment, decree, order, writ, law,
rule, statute, or regulation applicable to TAC, AS or their properties.
(4) Neither the execution and delivery of this Agreement, nor
consummation of the Merger and the other transactions contemplated hereby, nor
compliance by TAC or AS with any of the provisions hereof shall conflict with or
result in a breach of the respective Articles or Certificate of Incorporation or
by-laws of either TAC or AS.
16
(d) Financial Statements of TAC and AS.
(1) TAC has delivered to MINRAD a true and complete copy of
its audited financial statements for the fiscal years ended March 31, 2001, 2002
and 2003, and the unaudited financial statements for the interim period ending
June 30, 2004 (the "TAC Financial Statements"). The TAC Financial Statements are
complete, accurate and fairly present the financial condition of TAC as of the
dates thereof and the results of its operations for the periods then ended.
Except as indicated in the TAC Disclosure Documents, there are no material
liabilities or obligations either fixed or contingent not reflected therein. The
TAC Financial Statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may be
indicated therein or in the notes thereto) and fairly present the financial
position of TAC as of the dates thereof and the results of its operations and
changes in financial position for the periods then ended.
(2) No financial statements exist for AS because it was
recently formed solely for the purpose of effectuating the Merger and it has
been, is and will remain inactive except for purposes of the Merger, and it has
no assets, liabilities, contracts or obligations of any kind other than as
incurred in the ordinary course in connection with its incorporation in
Delaware.
(e) Taxes. TAC and AS have filed all federal, state, county and
local income, excise, property and other tax, governmental and/or other returns,
forms, filings, or reports, which are due or required to be filed by it prior to
the date hereof and have paid or made adequate provision in the TAC Financial
Statements for the payment of all taxes, fees, or assessments which have or may
become due pursuant to such returns, filings or reports or pursuant to any
assessments received. Neither TAC nor AS is delinquent or obligated for any tax,
penalty, interest, delinquency or charge and there are no tax liens or
encumbrances applicable to either corporation.
(f) No Subsidiaries. TAC has no subsidiaries or affiliates other
than AS or has no direct or indirect equity participation or similar interest in
any corporation, partnership, limited liability company, joint venture, trust or
other business except for AS, and AS has no subsidiaries or affiliates.
(g) Material Adverse Change. Since March 31, 2004 there have not
been any changes in the financial condition, results of operations, or financial
condition of TAC which would individually or in the aggregate with any other
such changes, except changes arising in the ordinary course of business, which
changes would have a Material Adverse Effect with respect to TAC. TAC and AS
have (and at the Closing they will have) disclosed in the TAC Disclosure
Documents all events, conditions, and facts materially affecting, the business,
financial condition (including liabilities, contingent or otherwise) or results
of operations of TAC and AS.
(h) Absence of Undisclosed Liabilities.
(1) At the Closing, neither TAC nor AS has any material assets
and neither such corporation has or will have, any liabilities of any kind other
than those reflected in the TAC Disclosure Documents and any costs incurred in
connection with the Merger.
17
(2) Except as disclosed in the TAC Disclosure Documents or
specifically disclosed or reserved against as to amount in the latest balance
sheet contained in the TAC Financial Statements, there is no basis for any
assertion against TAC of any material liabilities or obligations of any nature,
whether absolute, accrued, contingent or otherwise and whether due or to become
due, known or unknown, including, without limitation, any liability for taxes
(including e-commerce sales or other taxes), interest, penalties and other
charges payable with respect thereto. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
result in any payment (whether severance pay, unemployment compensation or
otherwise) becoming due from TAC to any person or entity, including without
limitation any employee, director, officer or affiliate or former employee,
director, officer or affiliate of TAC, (b) increase any benefits otherwise
payable to any person or entity, including without limitation any employee,
director, officer or affiliate or former employee, director, officer or
affiliate of TAC, or (c) result in the acceleration of the time of payment or
vesting of any such benefits.
(i) Litigation. Neither TAC nor AS is a party to, or the subject of,
any pending litigation, claims, or governmental investigation or proceeding not
reflected in the TAC Financial Statements, and to the Knowledge of the Major
Shareholders, TAC and AS, there are no lawsuits, claims, assessments,
investigations, or similar matters, threatened or contemplated against or
affecting AS, TAC, or the management or properties of TAC or AS.
(j) Minute Books and Records. Except as otherwise indicated in the
TAC Disclosure Documents, the TAC minute books and other corporate records made
available to MINRAD prior to the date of this Agreement, are complete and
accurate in all material respects.
(k) (1) Material Contracts. Neither TAC nor AS has breached, nor is
there any pending, existing or threatened claim that TAC or AS has breached, any
of the material terms or conditions of any agreements, contracts, commitments or
other documents to which it is a party or by which it is, or its properties are
bound. The execution and performance of this Agreement will not violate any
provisions of applicable law or any agreement to which TAC or AS is subject.
(2) Each of TAC and AS hereby represent and warrant that
except as otherwise provided in the TAC Disclosure Documents it is not a party
to any material contract or commitment other than appointment documents with
TAC's transfer agent, and that it has disclosed to MINRAD in writing all
previous or existing relationships or dealings with related or controlling
parties or affiliates of TAC, AS or any of the Major Shareholders. Each of TAC
and AS hereby represent and warrant that except as otherwise provided in the TAC
Disclosure Documents neither of them there are no currently existing agreements
with any affiliates, related or controlling persons or entities of TAC, AS or
any of the Major Shareholders.
(3) Except as otherwise provided in the TAC Disclosure
Documents, TAC has no material contracts, commitments, arrangements, or
understandings relating to its business, operations, financial condition,
prospects or otherwise. For purposes of this Section 6, "material" means payment
or performance of a contract, commitment, arrangement or understanding which is
expected to involve payments in excess of $5,000.
18
(4) Except as otherwise provided in the TAC Disclosure
Documents, other than this Agreement and the transactions contemplated hereby,
there are no outstanding contracts, commitments or bids, or services,
development, sales or other proposals of either TAC or AS.
(5) There are no outstanding lease commitments that cannot be
terminated without penalty upon 30-days notice, or any purchase commitments, in
each case of either TAC or AS.
(l) Compliance with Securities Laws.
(1) TAC has complied with all of the provisions relating to
the issuance of shares, and for the registration thereof, under the Securities
Act, other applicable securities laws, and all applicable blue sky laws in
connection with any and all of its stock issuances. There are no outstanding,
pending or threatened stop orders or other actions or investigations relating
thereto involving federal and state securities laws. All issued and outstanding
shares of TAC's capital stock were offered and sold in compliance with federal
and state securities laws and were not offered, sold or issued in violation of
any preemptive right, right of first refusal or right of first offer and are not
subject to any right of rescission.
(2) All information regarding TAC and any entity for whose
conduct TAC is legally held responsible which has been provided to MINRAD in the
TAC Disclosure Documents relating to any document or other communication,
disseminated to any former, existing or potential stockholders of TAC or to the
public or filed with The National Association of Securities Dealers, Inc.
("NASD") or the Securities and Exchange Commission ("SEC") or any state
securities regulators or authorities is true, complete, accurate in all material
respects, not misleading, and was and is in full compliance with all securities
laws and regulations.
(3) TAC has timely filed all required documents, reports and
schedules with the SEC, the NASD and any applicable state or regional securities
regulators or authorities. As of their respective dates, the TAC Disclosure
Documents complied in all material respects with the requirements of the
Securities Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the NASD rules and regulations and state and regional securities laws and
regulations, as the case may be, and, at the respective times they were filed.
None of the TAC Disclosure Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The financial statements (including, in
each case, any notes thereto) of TAC included in the TAC Disclosure Documents
complied as to form and substance in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto, were prepared in accordance with generally accepted accounting
principles (except as may be indicated therein or in the notes thereto) applied
on a consistent basis during the periods involved (except as may be indicated
therein or in the notes thereto) and fairly presented in all material respects
the financial position of TAC as of the respective dates thereof and the results
of its operations and its cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments and to any
other adjustments described therein).
19
(m) Governmental Authorizations: Compliance with Laws.
(1) Up to the Closing, TAC is currently and has complied with,
and TAC has conducted any business previously owned or operated by it in
compliance with, all applicable laws, orders, rules and regulations of all
governmental bodies and agencies, including applicable securities laws and
regulations and environmental laws and regulations, except where such
noncompliance has and will have, in the aggregate, no Material Adverse Effect.
(2) Up to the Closing, TAC has not received notice of any
noncompliance with the foregoing, nor to its Knowledge are there any claims or
threatened claims in connection therewith. TAC has never conducted any
operations or engaged in any business transactions whatsoever other than as set
forth in the reports TAC has previously filed with the SEC.
(3) Assuming all corporate consents and approvals have been
obtained and assuming the appropriate filings and mailings are made by TAC under
the Securities Act, the Exchange Act, with the NASD, and with the Secretaries of
State of Delaware and of Nevada, the execution and delivery by TAC of this
Agreement and the closing documents and the consummation by TAC of the
transactions contemplated hereby do not and will not (i) require the consent,
approval or action of, or any filing or notice to, any corporation, firm, person
or other entity or any public, governmental or judicial authority (except for
such consents, approvals, actions, filing or notices the failure of which to
make or obtain will not in the aggregate have a material adverse effect); or
(ii) violate any order, writ, injunction, decree, judgment, ruling, law, rule or
regulation of any federal, state, county, municipal, or foreign court or
governmental authority applicable to TAC, or its business or assets. TAC is not
subject to, or a party to, any mortgage, lien, lease, agreement, contract,
instrument, order, judgment or decree or any other material restriction of any
kind or character which would prevent, hinder, restrict or impair the continued
operation of the business of TAC (or to the Knowledge of TAC, the continued
operation of the business of MINRAD) after the Closing.
(n) Ongoing Business. No aspect of TAC's past or present business,
operations or assets is of such a character as would restrict or otherwise
hinder or impair TAC from carrying on the business of TAC as it is presently
being conducted by TAC.
(o) Disclosures. No representation or warranty by TAC or AS
contained in this Agreement and no statement contained in any certificate,
schedule or other communication furnished pursuant to or in connection with the
provisions hereof contains or shall contain any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein not misleading. There is no current or prior event or condition of any
kind or character pertaining to TAC that may reasonably be expected to have a
material adverse effect on TAC or its subsidiaries. Except as specifically
indicated elsewhere in this Agreement, all documents delivered by TAC in
connection herewith have been and will be complete originals, or exact copies
thereof.
(p) Environmental Matters.
20
Except as set forth on the TAC Disclosure Documents or as described
in any third party reports supplied by TAC or obtained by MINRAD and
specifically listed on TAC Disclosure Documents:
(1) TAC, including any corporation to which TAC is a
successor, is in material compliance with all Environmental Laws.
(2) Neither TAC nor, to the Knowledge of TAC, any other Person
for whose conduct TAC is or may be held responsible, has any Environmental
Liabilities, or, to the Knowledge of TAC, with respect to any properties and
assets (whether real, personal or mixed) in which TAC (or any predecessor) has
or had an interest, or at any property geologically or hydrologically adjoining
any such property or assets.
(3) TAC does not have any basis to expect, nor has TAC or, to
the Knowledge of TAC, any other Person for whose conduct TAC is or may be held
responsible received, any citation, directive, inquiry, notice, order, summons,
complaint or warning that relates to (i) any alleged, actual, or potential
violation or failure to comply with any Environmental Law or (ii) any alleged,
actual or potential obligation to undertake or bear the cost of any
Environmental Liabilities with respect to any present or former properties or
assets (whether real, personal or mixed) in which TAC (or any predecessor) has
or had an interest, or with respect to any property or facility to which
Hazardous Materials generated, manufactured, refined, transferred, imported,
used, or processed by TAC, or any other Person for whose conduct TAC is or may
be held responsible, have been transported, treated, stored, handled,
transferred, disposed, recycled, or received.
(4) Except in material compliance with or as permitted by
applicable Environmental Law, to the Knowledge of TAC, there are no Hazardous
Materials present on or in the environment at any present or former properties
of TAC (or any predecessor) or, to the Knowledge of TAC at any geologically or
hydrologically adjoining property, in material quantities that emanated from TAC
or any predecessor thereof, including any Hazardous Materials contained in
barrels, above or any, landfills, land deposits, dumps, equipment (whether
moveable or fixed) or other containers, either temporary or permanent, and
deposited or located in land, water, sumps, or any other part of such property
or such adjoining property, or incorporated into any structure therein or
thereon.
(5) To the Knowledge of TAC, and except in material compliance
with or as permitted by applicable Environmental Law, there has been no Release
or threat of Release, of any material amounts of Hazardous Materials at or from
any present or former property of TAC (or any predecessor).
(6) TAC has delivered or made available to MINRAD true and
complete copies and results of all reports, studies, analyses, tests, or
monitoring possessed or initiated by TAC and such other reports, if any, as
MINRAD has requested pertaining to Hazardous Materials or any business
activities which is regulated under any Environmental Law in, on, or under the
Facilities, or concerning compliance by TAC, or any other Person for whose
conduct TAC is or may be held responsible, with Environmental Laws.
21
7. CLOSING. The Closing of the transactions contemplated herein shall take
place at the offices of Xxxxxxx Xxxx LLP, Suite 2000, One M&T Plaza, Buffalo,
New York on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall occur on or before October 31, 2004. In
connection with the Closing, MINRAD and AS shall execute a Certificate of Merger
in accordance with the DGCL, and TAC shall cause it to be delivered and filed as
soon as practicable on the Closing Date with the Delaware Secretary of State in
accordance with the DGCL. The Merger shall become effective at the time and on
the date (the "Effective Time") specified in the Certificate of Merger.
8. ACTIONS PRIOR TO CLOSING.
(a) Prior to the Closing, MINRAD, TAC and AS, will be entitled to
make such investigations of the assets, properties, business and operations of
the other party, and to examine the books, records, tax returns, financial
statements and other materials of the other party as such investigating party
deems necessary in connection with this Agreement and the transactions
contemplated hereby. Any such investigation and examination shall be conducted
at reasonable times and under reasonable circumstances, and the parties hereto
shall cooperate fully therein. Until the Closing, and if the Closing shall not
occur, thereafter, each party shall keep confidential and shall not use in any
manner inconsistent with the transactions contemplated by this Agreement, and
shall not disclose, nor use for their own benefit, any information or documents
obtained from the other party concerning the assets, properties, business and
operations of such party, unless such information (i) is readily ascertainable
from public or published information, (ii) is received from a third party not
under any obligation to keep such information confidential, or (iii) is required
to be disclosed by any law or order (in which case the disclosing party shall
promptly provide notice thereof to the other party in order to enable the other
party to seek a protective order or to otherwise prevent such disclosure). If
this transaction is not consummated for any reason, each party shall return to
the other all such confidential information, including notes and compilations
thereof, promptly after the date of such termination. The representations and
warranties contained in this Agreement shall not be affected or deemed waived by
reason of the fact that either party hereto discovered or should have discovered
any representation or warranty is or might be inaccurate in any respect.
(b) Prior to the Closing, MINRAD, TAC, AS, and the Major
Shareholders agree not to issue any statement or communications to the public or
the press regarding the transactions contemplated by this Agreement without the
prior written consent of the other parties. In the event that TAC is required
under federal securities law to either (i) file any document with the SEC that
discloses this Agreement or the transactions contemplated hereby, or (ii) to
make a public announcement regarding this Agreement or the transactions
contemplated hereby, TAC shall provide MINRAD with a copy of the proposed
disclosure no less than 48 hours before such disclosure is made and shall
incorporate into such disclosure any reasonable comments or changes that MINRAD
may request.
(c) Prior to the Closing, there shall be no stock dividend, stock
split, recapitalization, or exchange of shares with respect to, or rights issued
in respect of, the TAC Stock, and there shall be no dividends or other
distributions paid on TAC's Common Stock after the date hereof, in each case
through and including the Closing.
22
(d) TAC and AS shall conduct no business, prior to the Closing,
other than in the ordinary course of business or as may be necessary in order to
consummate the transactions contemplated hereby.
(e) Except as otherwise contemplated under this Agreement, prior to
the Closing, TAC and AS shall not take any action or enter into any agreement to
issue or sell any shares of capital stock of TAC or AS or any securities
convertible into or exchangeable for any shares of capital stock of TAC or AS or
to repurchase, redeem or otherwise acquire any of the issued and outstanding
capital stock of TAC or AS without the prior written consent of MINRAD.
(f) Prior to the Closing, TAC and AS shall conduct their business
only in the usual and ordinary course and the character of such business shall
not be changed nor shall any different business be undertaken. Prior to the
Closing, except as contemplated hereby, TAC and AS shall not incur any
liabilities or obligations without the prior written consent of MINRAD.
(g) Prior to the Closing, TAC will timely file all required TAC SEC
Documents and comply in all material respects with the requirements of the
Securities Act, the Exchange Act, the NASD rules and regulations and state and
regional securities laws and regulations.
(h) Prior to the Closing, if requested by MINRAD, TAC shall adopt a
new stock option plan or amend its existing stock option plan in the manner
requested by MINRAD.
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF MINRAD. All obligations of
MINRAD under this Agreement are subject to the fulfillment, prior to or as of
the Closing, of each of the following conditions:
(a) The representations and warranties by or on behalf of TAC and AS
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof or in connection herewith shall be true at and as of
the Closing as though such representations and warranties were made at and as of
such time.
(b) TAC, AS and the Major Shareholders shall have performed and
complied with all covenants, agreements, and conditions set forth or otherwise
contemplated in, and shall have executed and delivered all documents required
by, this Agreement to be performed or complied with or executed and delivered by
them prior to or at the Closing.
(c) On or before the Closing, the Board of Directors of TAC and AS,
the shareholders of TAC, and TAC as sole stockholder of AS, shall have approved
in accordance with applicable state corporation law the execution and delivery
of this Agreement and the consummation of the transactions contemplated herein.
(d) On or before the Closing Date, TAC and AS shall have delivered
certified copies of resolutions of the sole stockholder and the directors of AS
and of the shareholders and directors of TAC approving and authorizing the
execution, delivery and performance of this Agreement and authorizing all of the
necessary and proper action to enable TAC and AS to comply with the terms of
this Agreement, including the election of MINRAD's nominees to the Board of
Directors of TAC and all matters outlined or contemplated herein.
23
(e) The Merger shall be permitted by applicable state law and
otherwise and TAC shall have sufficient shares of its capital stock authorized
to complete the Merger and the transactions contemplated hereby.
(f) At Closing, all of the directors and officers of TAC shall have
resigned in writing from their positions as directors and officers of TAC
effective upon the election and appointment of the MINRAD nominees, and the
directors of TAC shall take such action as may be necessary or desirable to
effect the election and appointment of MINRAD nominees.
(g) At or prior to the Closing, TAC shall have adopted a fiscal year
ending on December 31.
(h) At the Closing, all instruments and documents delivered by TAC
or AS, including any to MINRAD Stockholders pursuant to the provisions hereof,
shall be reasonably satisfactory to legal counsel for MINRAD.
(i) The shares of restricted TAC capital stock to be issued to
MINRAD Shareholders at Closing will be validly issued, nonassessable and fully
paid under Delaware corporation law and will be issued in a nonpublic offering
in compliance with all federal, state and applicable securities laws.
(j) MINRAD shall have received all necessary and required approvals
and consents from required parties (including those identified in the MINRAD
Disclosure Documents) and from its stockholders.
(k) At the Closing, TAC and AS shall have delivered to MINRAD an
opinion of TAC's legal counsel, dated as of the Closing, and in a form
reasonably acceptable to MINRAD to the effect that:
(1) Each of TAC and AS is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation;
(2) This Agreement has been duly authorized, executed and
delivered by TAC and AS and is a valid and binding obligation of TAC and AS
enforceable in accordance with its terms;
(3) TAC and AS each through its Board of Directors and
stockholders have taken all corporate action necessary for their performance
under this Agreement;
(4) The documents executed and delivered to MINRAD and MINRAD
Stockholders hereunder are valid and binding in accordance with their terms and
vest in MINRAD Shareholders all right, title and interest in and to the shares
of TAC Stock to be issued pursuant to Section 2 hereof, and the shares of TAC
capital stock when issued in accordance with this Agreement will be duly and
validly issued, fully paid and nonassessable; and
24
(5) Each of TAC and AS has the corporate power to execute,
deliver and perform under this Agreement.
(l) The Major Shareholders shall have signed and delivered the Share
Escrow Agreement to MINRAD at the Closing.
(m) The Major Shareholders shall enter into an agreement with TAC,
in a form reasonably acceptable to MINRAD, to vote their shares of TAC Stock
after the Merger in favor of any proposal made or approved by the Board of
Directors of TAC after the Merger to reincorporate TAC in Delaware.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF TAC AND AS. All obligations
of TAC and AS under this Agreement are subject to the fulfillment, prior to or
at the Closing, of each of the following conditions:
(a) The representations and warranties by MINRAD contained in this
Agreement or in any certificate or document delivered pursuant to the provisions
hereof shall be true at and as of the Closing as though such representations and
warranties were made at and as of such times.
(b) MINRAD shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) MINRAD shall deliver an opinion of its legal counsel, dated the
date of the Closing, and in a form reasonably acceptable to TAC to the effect
that:
(1) MINRAD is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of its incorporation;
(2) This Agreement has been duly authorized, executed and
delivered by MINRAD and is a binding obligation of MINRAD enforceable in
accordance with its terms;
(3) The Board of Directors and stockholders of MINRAD have
taken all corporate action necessary for its performance under this Agreement;
and
(4) MINRAD has the corporate power to execute, deliver and
perform under this Agreement.
11. SURVIVAL AND INDEMNIFICATION. Notwithstanding any investigation
conducted by any party hereto or any information any party may receive, all
representations, warranties, covenants and agreements contained in this
Agreement shall survive only or in any schedule, certificate, document or
statement delivered pursuant hereto, shall survive (and not be affected in any
respect by) (i) in the case of MINRAD only until the Closing and (ii) in the
case of TAC and AS, until the second anniversary of the Effective Time.
Notwithstanding the foregoing, the representations and warranties contained in
Section 14 of this Agreement shall survive indefinitely. The representations and
warranties which terminate on the second anniversary of the Effective Time, and
the liability of any party with respect thereto pursuant to this Section 11,
shall not terminate with respect to any claim, whether or not fixed as to
liability or liquidated as to amount, with respect to which the appropriate
party has been given written notice setting forth the facts upon which the claim
for indemnification is based prior to the second anniversary of the Effective
Time, as the case may be.
25
(a) The parties shall indemnify each other as set forth below:
(1) Subject to the provisions of this Section 11, each of the
Major Shareholders, shall jointly and severally indemnify and hold harmless
MINRAD and MINRAD's past, present and future officers, directors, stockholders,
employees, attorneys, and agents (and after the Closing, the Major Shareholders
shall also indemnify TAC) (collectively, the "Indemnified Parties") from and
against any Losses (as defined below) including, without limitation, any
reasonable legal expenses to the extent arising from, relating to or otherwise
in respect of (i) any inaccuracy or breach of any representation or warranty of
TAC contained in Sections 6 or 14 of this Agreement (as of the date hereof, or
as of the Closing) or of any representation, warranty or statement made in any
schedule, certificate, document or instrument delivered by TAC or any officer or
any of them at or in connection with the Closing, or (ii) the breach by TAC, of
or failure by TAC to perform any of its covenants or agreements contained in
this Agreement; provided, however, that (A) no Major Shareholder shall be
responsible for any Losses with respect to the matters referred to in clauses
(1) of this Section 11(a), until the cumulative aggregate amount of all such
Losses exceeds $5,000, in which event the Major Shareholders shall then be
liable for all such cumulative aggregate Losses up to $25,000, including the
first $5,000. Each Major Shareholder specifically acknowledges and agrees that
any MINRAD Indemnified Party may proceed against any Major Shareholder under
this Section 11 without contemporaneously, or at any time, proceeding against
any other Major Shareholders. As used herein, "Losses" shall mean any and all
demands, claims, complaints, actions or causes of action, suits, proceedings,
investigations, arbitrations, assessments, losses, damages, diminution in value,
deficiencies, payments, liabilities or obligations (including those arising out
of any action, such as any settlement or compromise thereof or judgment or award
therein) and any fees, costs and expenses related thereto, and the term "legal
expenses" shall mean the fees, costs and expenses of any kind incurred by any
party indemnified herein and its counsel in investigating, preparing for,
defending against or providing evidence, producing documents or taking other
action with respect to any threatened or asserted claim.
(2) Subject to the provisions of this Section 11, MINRAD shall
indemnify and hold harmless each Major Shareholder from and against any Losses
(including, without limitation, any reasonable legal expenses) to the extent
arising from, relating to or otherwise in respect of (i) the inaccuracy or
breach of any representation or warranty of MINRAD contained in Sections 5 or 14
of this Agreement (as of the date hereof, or as of the Closing) or of any
representation, warranty or statement made in any schedule, certificate document
or instrument delivered by MINRAD or an officer of MINRAD at or in connection
with the Closing, or (ii) the breach by MINRAD of or failure by MINRAD to
perform any of its covenants or agreements contained in this Agreement;
provided, however, that MINRAD shall not be responsible for any Losses with
respect to the matters until the cumulative aggregate amount of such Losses
exceeds $5,000, in which event MINRAD shall then be liable for all such
cumulative aggregate up to $25,000 of Losses, including the first $5,000.
26
(3) In order for a MINRAD Indemnified Party or Major
Shareholder (an "Indemnified Party") to be entitled to any indemnification
provided for under this Agreement, the Indemnified Party shall deliver notice of
its claim for indemnification with reasonable promptness after determining to
make such claim, to the Major Shareholders or any of them. The failure by any
Indemnified Party so to notify the Major Shareholders or any of them, as the
case may be, shall not relieve any relevant indemnifying party from any
liability which he or it may have to such Indemnified Party under this
Agreement, except to the extent that such claim for indemnification involves the
claim of a third party against the Indemnified Party and the Indemnifying Party
shall have been actually prejudiced by such failure. If an Indemnifying Party
does not notify the Indemnified Party within 30 calendar days following receipt
by it of such notice that such Indemnifying Party disputes its liability to the
Indemnified Party under this Agreement, such claim specified by the Indemnified
Party in such notice shall be conclusively deemed a liability of such
Indemnifying Party under this Agreement and such Indemnifying Party shall pay
the amount of such liability to the Indemnified Party on demand or, in the case
of any notice in which the amount of the claim (or any portion thereof) is
estimated, on such later date when the amount of such claim (or such portion
thereof) becomes finally determined. If an Indemnifying Party has timely
disputed its liability with respect to such claim, as provided above, such
Indemnifying Party and the Indemnified Party shall proceed in good faith to
negotiate a resolution of such dispute and, if not resolved through
negotiations, such dispute shall be resolved by litigation in accordance with
the terms of this Agreement.
(4) (A) If the claim involves a third party claim (a "Third
Party Claim"), then the Indemnifying Party shall have the right, at its sole
cost, expense and ultimate liability regardless of the outcome, and through
counsel of its choice (which counsel shall be reasonably satisfactory to the
Indemnified Party), to litigate, defend, settle or otherwise attempt to resolve
such Third Party Claim; provided, however, that if in the Indemnified Party's
reasonable judgment a conflict of interest may exist between the Indemnified
Party and the Indemnifying Party with respect to such Third Party Claim, then
the Indemnified Party shall be entitled to select counsel of its own choosing,
reasonably satisfactory to the Indemnifying Party, in which event the
Indemnifying Party shall be obligated to pay the fees and expenses of such
counsel.
(B) Notwithstanding the preceding paragraph, if in the
Indemnified Party's reasonable judgment no such conflict exists, the Indemnified
Party may, but will not be obligated to, participate at its own expense in a
defense of such Third Party Claim by counsel of its own choosing, but the
Indemnifying Party shall be entitled to control the defense unless (A) in the
case where only money damages are sought, the Indemnified Party has relieved the
Indemnifying Party from liability with respect to the particular matter or (B)
in the case where equitable relief is sought, the Indemnified Party elects to
participate in and jointly control the defense thereof.
(C) Whenever the Indemnifying Party controls the defense of a
Third Party Claim, the Indemnifying Party may only settle or compromise the
matter subject to indemnification without the consent of the Indemnified Party
if such settlement includes a complete release of all Indemnified Parties as to
the matters in dispute and relates solely to money damages. The Indemnified
Party will not unreasonably withhold consent to any settlement or compromise
that requires its consent.
27
(D) In the event the Indemnifying Party fails to timely
defend, contest, or otherwise protect the Indemnified Party against any such
claim or suit, the Indemnified Party may, but will not be obligated to, defend,
contest, or otherwise protect against the same, and make any compromise or
settlement thereof, and in such event, or in the case where the Indemnified
Party jointly controls such claim or suit, the Indemnified Party shall be
entitled to recover its costs thereof from the Indemnifying Party, including
attorneys' fees, disbursements and all amounts paid as a result of such claim or
suit or the compromise or settlement thereof.
(E) The Indemnified Party shall cooperate and provide such
assistance as the Indemnifying Party may reasonably request in connection with
the defense of the matter subject to indemnification and in connection with
recovering from any third parties amounts that the Indemnifying Party may pay or
be required to pay by way of indemnification hereunder.
(b) The amount of Losses for which indemnification is provided
hereunder shall be computed without regard to any insurance recovery related to
such losses.
12. NATURE OF REPRESENTATIONS. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and the other documents delivered at the Closing and not upon any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set forth
herein.
13. DOCUMENTS AT CLOSING. At the Closing, the following documents shall be
delivered:
(a) MINRAD will deliver, or will cause to be delivered, to TAC the
following:
(1) a certificate executed by the President & CEO of MINRAD to
the effect that all representations and warranties made by MINRAD under this
Agreement are true and correct as of the Closing, the same as though originally
given to TAC or AS on said date;
(2) a certificate from the state of MINRAD's incorporation
dated within five business days of the Closing to the effect that MINRAD is in
good standing under the laws of said state;
(3) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the provisions of this
Agreement;
(4) executed copy of the Certificate of Merger for filing in
Delaware;
(5) certified copies of resolutions adopted by the
stockholders and directors of MINRAD authorizing the Merger;
(6) all other items, the delivery of which is a condition
precedent to the obligations of TAC and AS, as set forth herein; and
28
(7) the legal opinion required by Section 9(e) hereof.
(b) TAC and AS will deliver or cause to be delivered to MINRAD:
(1) stock certificates representing those securities of TAC to
be issued as a part of the Merger as described in Section 2 hereof;
(2) a certificate of the President & CEO of TAC and AS,
respectively, to the effect that all representations and warranties of TAC and
AS made under this Agreement are true and correct as of the Closing, the same as
though originally given to MINRAD on said date;
(3) certified copies of resolutions adopted by TAC's and AS's
Board of Directors and AS's stockholder authorizing the Merger and all related
matters;
(4) certificates from the jurisdiction of incorporation of TAC
and AS dated within five business days of the Closing Date that each of said
corporations is in good standing under the laws of said state;
(5) executed copy of the Certificate of Merger for filing in
Delaware;
(6) opinion of TAC's counsel as described in Section 8(l)
above;
(7) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(8) written resignation of all of the officers and directors
of TAC and AS;
(9) Escrow Agreement, signed by Xxxxx McAfee Capital Partners
and TAC together with evidence that the Escrow shares have been placed in
escrow;
(10) copy of Articles of Exchange in the form in which they
will be filed by TAC with the Nevada Department of State immediately after the
Closing; and
(11) all other items, the delivery of which is a condition
precedent to the obligations of MINRAD, as set forth in Section 8 hereof.
(c) The Major Shareholders shall deliver the voting agreement
provided for in Section 9(m) relating to their agreement to vote in favor of the
reincorporation of TAC in Delaware.
14. FINDER'S FEES. The Major Shareholders, TAC and AS, jointly and
severally, represent and warrant to MINRAD, and MINRAD represents and warrants
to each of the Major Shareholders, TAC and AS, that, except under a letter
agreement dated December 1, 2003 between Xxxxx McAfee Capital Partners and
MINRAD, none of them, or any party acting on their behalf, has incurred any
liabilities, either express or implied, to any "broker" or "finder" or similar
person in connection with this Agreement or any of the transactions contemplated
hereby.
29
15. POST-CLOSING COVENANTS.
(a) Standard and Poor's. If required for the trading of TAC Stock,
TAC shall use its commercially reasonable efforts to apply for listing with
Standard and Poor's Information Service and Blue Sky filings.
(b) Stock Listing. As soon as TAC meets the company listing
requirements, TAC and Xxxxx shall use all commercially reasonable efforts to
cause TAC Stock to be listed for trading on the AMEX or the NASDAQ.
(c) Confidentiality. The Major Shareholders hereby agree that, after
the Closing, they shall not publicly disclose any confidential information of
TAC, AS or MINRAD, and that they shall not make any public statement or
announcement regarding the Merger or the business, financial condition,
prospects or operations of TAC or MINRAD, without the prior written consent of
MINRAD (or, TAC after the Effective Time).
(d) Registration of TAC Stock under TAC Option Plan. As soon as
practicable after the Effective Time, TAC will prepare and file a registration
statement on Form S-8 for the registration of TAC Stock issuable under the TAC
Option Plan, including TAC Stock issuable under converted MINRAD Options.
16. MISCELLANEOUS.
(a) Further Assurances. At any time, and from time to time, after
the Effective Time, each party will execute such additional instruments and take
such action as may be reasonably requested by the other party to confirm or
perfect title to any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply
with any of its obligations, agreements or conditions hereunder may be waived in
writing by the party (in its sole discretion) to whom such compliance is owed.
(c) Termination. This Agreement and all obligations hereunder (other
than those under Section 16(l)) may be terminated (i) after October 31, 2004 at
the discretion of either party if the Closing has not occurred by October 31,
2004 (unless the Closing date is extended with the consent of both MINRAD and
TAC) for any reason other than the default hereunder by the terminating party,
(ii) at any time by the non-breaching party if any of the representations and
warranties or other agreements made herein by the other party have been
materially breached, (iii) by either MINRAD or TAC, if the holders of the
requisite number of shares of MINRAD Stock vote against, or refuse to provide
their written consents for, the approval and adoption of this Agreement and the
Merger, or (iv) by mutual written consent of TAC and MINRAD. Any proper
termination of this Agreement under this Section will be effective immediately
upon the delivery of written notice by the terminating party to the other
parties.
(d) Amendment. This Agreement may be amended only in writing as
agreed to by all parties hereto.
30
(e) Notices. All notices and other communications hereunder shall be
in writing and sufficient if delivered personally or sent and received by
facsimile transmission or overnight express or by registered or certified mail,
postage prepaid, at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this section):
If to TAC or AS prior to the Closing: with a copy to:
Technology Acquisition Corporation Xxxxxx Xxxxx Xxxxxxx II, Esq.
00000 X. Xx Xxxx Xxxxxxxxx, Xxxxx 000 The Xxxxxxx Group, LLP
Xxxxxxxxx, Xxxxxxxxxx 00000 La Jolla Law Building
Attn: Xxxx Xxxxxx, President 0000 Xx Xxxxx Xxxxxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
If to MINRAD: with a copy to:
MINRAD INC. Xxxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxxxx Xxxxxxx Xxxx XXX
Xxxxxxx, Xxx Xxxx 00000 One M&T Plaza, Suite 2000
Attn: Xxxxxxx X. Xxxxx Xxxxxxx, Xxx Xxxx 00000
President and Chief Executive Officer Facsimile: 000-000-0000
Facsimile: 000-000-0000
If to TAC after the Closing: with a copy to:
MINRAD INC.
000 Xxxx Xxxxxx Xxxxxx X. Xxxxxxx, Esq.
Buffalo, New York 14203 Xxxxxxx Xxxx LLP
Attn: Xxxxxxx X. Xxxxx One M&T Plaza, Suite 2000
President and Chief Executive Officer Xxxxxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
If to the Major Shareholders: with a copy to:
Xxxxx X. Xxxxx Xxxxxx Xxxxx Xxxxxxx II, Esq.
Technology Acquisition Corporation The Xxxxxxx Group, LLP
10600 N. De Anza Boulevard, Suite 000 Xx Xxxxx Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000 0000 Xx Xxxxx Xxxxxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000 Facsimile: 000-000-0000
(f) Headings. The section and subsection headings in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
31
(g) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(h) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits,
including the Certificate of Merger, which is attached hereto as Exhibit "A," is
the entire agreement of the parties covering everything agreed upon or
understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable, the balance of the Agreement shall remain in full force and
effect.
(l) Responsibility and Costs. Whether the Merger is consummated or
not, all Transaction Expenses incurred by the parties hereto shall be borne
solely and entirely by the party that has incurred such costs and expenses.
(m) Inapplicability of Indemnification Provisions. The provisions
contained in TAC's Articles of Incorporation and/or By-laws for indemnifying
officers and directors of that company shall not apply for the purposes of this
Agreement to the persons responsible for the representations and warranties made
herein by TAC.
(n) Applicable Law. This Agreement shall be construed and governed
by the internal laws of the State of Delaware without reference to principles of
conflict of law.
(o) Jurisdiction and Venue. Each party hereto irrevocably consents
to the jurisdiction and venue of the state or federal courts located in Erie
County, State of New York, in connection with any action, suit, proceeding or
claim to enforce the provisions of this Agreement, to recover damages for breach
of or default under this Agreement, or otherwise arising under or by reason of
this Agreement.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
32
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
TECHNOLOGY ACQUISITION CORPORATION MINRAD INC.
By: _____________________________ By: ______________________________
Its: ____________________________ Its: _____________________________
TECHNOLOGY ACQUISITION
SUBSIDIARY, INC.
By: _____________________________
Its: ____________________________
MAJOR SHAREHOLDERS:
XXXXX MCAFEE CAPITAL PARTNERS, LLC XXXXX FAMILY TRUST
By: ______________________________
By: _____________________________ Name:
Its: ____________________________ Title:
_________________________________ INTERNATIONAL CAPITAL ADVISORY, INC.
Xxxxx X. Xxxxx
_________________________________ By: ______________________________
Xxxx XxXxxx Name:
Title:
33
Schedule 1A
TECHNOLOGY ACQUISITION CORPORATION
SUPPLEMENTAL DISCLOSURE DOCUMENT
PRELIMINARY NOTE
This Disclosure Document has been prepared by Technology Acquisition
Corporation ("TAC") in accordance with the Merger Agreement and Plan of Exchange
among TAC, Technology Acquisition Subsidiary, Inc., Certain Major Shareholders
and Minrad, Inc. ("Minrad") effective as of July 15, 2004 (the "Agreement").
Each numbered Section of the Disclosure Document relates to the
corresponding numbered Section of the Agreement. The information and disclosures
contained in any Section of the Disclosure Document are hereby incorporated by
reference into each of the other Sections of the Disclosure Document to the
extent that such incorporation by reference is necessary to make the information
and disclosure contained in any such Section accurate and complete and to which
such disclosure is reasonably applicable. Capitalized terms used but not
otherwise defined in the Disclosure Document shall have the meanings given to
them in the Agreement.
SECTION 6(A) [Organization, Standing and Authority]
Although it maintains its principal office in the State of California, TAC
has not qualified to do business in the State of California.
SECTION 6(B) [Capital Structure]
On or about October 2, 2003, TAC's Board of Directors approved issuance of
shares of TAC's common stock as follows: (a) 50,000 restricted shares to Xxxxxxx
Xxxx, (b) 25,000 restricted shares to Xxxxxx Xxxxxxxxx, (c) 25,000 restricted
shares to Xxxxx Xxxxxxx and (d) 100,000 shares to General Research GmbH. On or
about October 3, 2003, TAC's Board of Directors approved issuance of shares of
TAC's common stock as follows: (a) 5,000 restricted shares to Xxxxxxx Xxxx, (b)
2,500 restricted shares to Xxxxxx Xxxxxxxxx, (c) 2,500 restricted shares to
Xxxxx Xxxxxxx and (d) 10,000 shares to General Research GmbH. The shares
authorized for issuance on October 3 were never issued. To the Knowledge of TAC,
such shares were duplicates of those shares authorized for issuance to the same
parties on October 2, 2003 but reflecting a post-ten for one stock split
(authorized by TAC's Board on October 13, 2003). Prior to Closing, TAC's Board
will rescind the 10/3/03 resolution authorizing the issuance of these shares.
On or about June 2, 2003, TAC's Board of Directors approved the
cancellation of 804,999 shares of TAC's common stock after completing an
internal investigation of certain actions by a former TAC officer, whereby it
determined that such shares had been issued to 32 separate shareholders without
TAC receiving good and valid consideration.
SECTION 6(H)(1) [Absence of Undisclosed Liabilities]
To the Knowledge of TAC, TAC paid $1,500 to Xxxxxxx Xxxxxx pursuant to
that certain Settlement Agreement, dated April 26,2004, between TAC and Xxxxxx
whereby TAC agree to make such payment in full and final settlement of any
claims Xxxxxx may have had against TAC for the payment of certain cash fees and
option to purchase an aggregate of 200,000 shares of TAC's common stock pursuant
to a certain consulting agreement and a certain grant of options to purchase
TAC's common stock.
SECTION 6(J) [Minute Books and Records]
TAC does not have a minute book and its only stock register is maintained
by its transfer agent, Xxxxxxxx Stock Transfer, Inc (see Shareholder Detail
List). The date of the most recent Shareholder Detail List is June 24, 2004.
This Shareholder Detail List indicates 4,980,900 shares of TAC common stock
issued and outstanding. The shares authorized by Written Consent of the Board of
Directors dated May 24, 2004 authorized the issuance of 70,000 shares of TAC's
common stock as follows: 10,000 to each of Xxxx Xxxxxx, Xxxxx Xxxxx and Xxx
Xxxxxx, and 40,000 to Xxxxx Xxxxxxx. These 70,000 shares were issued to the
above parties subsequent to the June 24, 2004 Shareholder Detail List.
SECTION 6(K)(3) [Material Contracts]
Pursuant to that certain Consulting Agreement, dated May 21, 2004, by and
between Liviakis Financial Communications, Inc. ("LFC") and TAC, TAC issued
400,000 shares of its common stock with an agreed upon value of $0.04 per share
in payment for the services to be rendered by LFC as set forth therein.
SECTION 6(P)(3) [Environmental Matters]
From 1986 until 1996, Cignal Oil Company, a predecessor company by merger
with TAC, engaged in the business of drilling oil and gas xxxxx. To the
Knowledge of TAC, any and all such oil and gas well(s) that it owned, drilled or
managed were "dry" in so far as no oil or gas, in any quantity, was ever
produced from such well(s).
TAC, operating under its prior corporate name Roatan Medical Technologies,
Inc., developed 3-4 sterilizer machines for Presbyterian Hospital of Dallas (the
"Hospital") and the Hospital operated these sterilizer machines for three years
from mid-1996 until February 1999 when the machines and the operation was
transferred to a third party, Healthbridge, Inc.. Post-sterilization the
approximately one million pounds of sterile waste went to a landfill. The
Hospital is JCAHO accredited. JCAHO was established to insure that hospitals
properly disposed of potentially infectious medical waste. This is a detailed
and specific audit item.
The fact that the Hospital's February 1997 audit covering the period of
1995-1996 had no remarks on waste disposal and their 2000 audit covering the
period of 1997-1999 had no issues indicates that a) the waste was sterile at
departure and b) their transport and landfill operations are appropriate for
handling infectious material - even if only partially sterilized.
* * * * * * * * * *
Schedule 1B
MINRAD INC.
SUPPLEMENTAL DISCLOSURE DOCUMENT
PRELIMINARY NOTE
This Disclosure Document has been prepared by Minrad, Inc. ("Minrad") in
accordance with the Merger Agreement and Plan of Exchange among Technology
Acquisition Corporation, Technology Acquisition Subsidiary, Inc., Certain Major
Shareholders and Minrad effective as of July 15, 2004 (the "Agreement").
Each numbered Section of the Disclosure Document relates to the
corresponding numbered Section of the Agreement. The information and disclosures
contained in any Section of the Disclosure Document are hereby incorporated by
reference into each of the other Sections of the Disclosure Document to the
extent that such incorporation by reference is necessary to make the information
and disclosure contained in any such Section accurate and complete and to which
such disclosure is reasonably applicable. Capitalized terms used but not
otherwise defined in the Disclosure Document shall have the meanings given to
them in the Agreement.
SECTION 6(B)(4) [Authorized and Effective Agreement]
Pursuant to Section 5.10 of the Loan Agreement, dated February 3, 1999, by
and between Minrad and Buffalo & Erie County Regional Development Corporation
(the "RDC"), Minrad may not participate in any merger without the prior written
consent of the RDC. The RDC has consented in writing to the Merger.
Pursuant to Section 7.2 of the Mortgage and Security Agreement, dated
October 2001, by and between Minrad, Inc. and InterBay Funding, LLC
("InterBay"), Minrad may not merge without InterBay's prior written consent.
InterBay has consented in writing to the Merger.
Pursuant to Section 4.4 of the Amended and Restated Pledge and Security
Agreement, dated as of November 2, 2001, as amended, by and between Minrad and
Xxxxx Xxxxxxxxx Partners, L.P. ("KKP"), the consent of KKP to the merger is
required. Section 4.4 contains an prohibition against the assignment (by
operation of law or otherwise) of the Collateral (as defined therein). This
Amended and Restated Security Agreement, as amended, relates to the guaranty by
KKP of a certain $1,000,000 loan by Wachovia Bank, N.A. to Minrad. KKP has
verbally consented to the Merger and Minrad expects to obtain a written consent
prior to Closing.
Pursuant to the Security Agreement, dated as of February 6, 2003, by and
between Minrad and Xxxxxxx Xxxxx Specialty Group, LLC ("STSG"), the consent of
STSG to the merger is required. This Security Agreement contains an prohibition
against the assignment (by operation of law or otherwise) of the Collateral (as
defined therein). This Security Agreement relates to the outstanding 8% Secured
Convertible Promissory Note, dated October 30, 2003, in the original principal
amount of $150,000. STSG's consent to the merger is not necessary as Minrad
expects that this debt will be repaid in full prior to the Closing.
Pursuant to Section 4.4 of the First Amended and Restated Security
Agreement, dated as of May 30, 2003, by and between Minrad and STSG, the consent
of STSG to the merger is required. Section 4.4 contains an prohibition against
the assignment (by operation of law or otherwise) of the Collateral (as defined
therein). This First Amended and Restated Security Agreement relates to the
outstanding Amended and Restated 8% Secured Convertible Promissory Note, dated
May 30, 2003, in the original principal amount of $750,000. STSG's consent to
the merger is not necessary as Minrad expects that this debt will be repaid in
full prior to the Closing.
Pursuant to Section 13.1(f) of the Invoice Purchase and Sale Agreement,
made as of September 24, 2003, by and between Minrad and Entrepreneur Growth
Capital LLC ("EGC"), a merger by Minrad is an event of default. EGC has
consented in writing to the Merger.
SECTION 6(C) [Capital Structure]
Minrad has issued options to certain parties that may be exercised
anytime. However, Minrad believes that the optionholders are unlikely to do so
prior to the consummation of the Merger since the exercise price of such options
are higher than Minrad's share price.
SECTION 6(F) [Litigation]
Buffalo & Erie County Regional Development Corporation filed suit against
Minrad (in its 2003 fiscal year) for default on repayment of a $300,000 loan. We
understand that Minrad was delinquent on its loan to RDC in both 2002 and 2003
The RDC's lawyer represented to us that Minrad's response time to the complaint
has been extended pending mutually satisfactory settlement/resolution. Minrad
recently made a regularly scheduled payment but owes over $100,000 in principal
and interest. As of June 30, 2004, the amount of this outstanding liability was
$219,904.70.
The Internal Revenue Service levied against a debt owed by Minrad to a
third party as repayment of federal taxes owed by the third party. Minrad is in
default on this obligation. However, Minrad has received a verbal forbearance
from the Internal Revenue Service conditioned upon Minrad's paying approximately
$11,500 per month. As of June 30, 2004, the outstanding balance was $72,627.
* * * * * * * * * *
Schedule 5(c)
MINRAD WARRANTS
--------------------- ------------------ -------------------- ----------------------------------------------------------
WARRANTS OUTSTANDING UNDERLYING SHARES EXERCISE PRICE EXPIRATION PERIOD(S)
(PER SHARE)
--------------------- ------------------ -------------------- ----------------------------------------------------------
354,803(1) 354,803 $1.15 The earlier of August 30, 2010 at 5:30 pm, New York
time(2) or 3 years after the closing date of an initial
public offering of Minrad's equity securities commenced
prior to such date
--------------------- ------------------ -------------------- ----------------------------------------------------------
2,500,000(3) 2,500,000 $1.004 November 2, 2008 at 5:30 pm, New York time(5)
--------------------- ------------------ -------------------- ----------------------------------------------------------
956,523(6) 956,523 $1.15 March 28, 2009 at 5:30 pm, New York time(7)
--------------------- ------------------ -------------------- ----------------------------------------------------------
182,609(8) 182,609 $1.15 March 28, 2009 at 5:30 pm, New York time(9)
--------------------- ------------------ -------------------- ----------------------------------------------------------
78,261(10) 78,261 $1.15 March 28, 2009 at 5:30 pm, New York time(11)
--------------------- ------------------ -------------------- ----------------------------------------------------------
21,739(12) 21,739 $1.15 August 6, 2009 at 5:30 pm, New York time(13)
--------------------- ------------------ -------------------- ----------------------------------------------------------
6,522(14) 6,522 $1.15 August 29, 2009 at 5:30 pm, New York time(15)
--------------------- ------------------ -------------------- ----------------------------------------------------------
4,100,457 4,100,457
--------------------- ------------------ -------------------- ----------------------------------------------------------
-----------------
1 Issued pursuant to Placement Agent Warrant Agreement, dated as of July 2,
2000, by and between Minrad Inc. and Xxxxxxx Xxxxx Securities, Incorporated.
Following the closing of an initial private placement of $1.5 million and
pursuant to a certain offer from Minrad to each warrantholder, 14,375 warrants
(W-3, W-9, W-11, W-22, W-40) issued pursuant to this warrant agreement were
exchanged at a rate of 1/3 share of Minrad common stock.
2 The 10th anniversary of the final closing of the Series B Preferred Stock
offering.
3 Issued pursuant to the Amended and Restated Warrant Agreement, dated November
2, 2001, by and between Minrad Inc. and Xxxxx Xxxxxxxxx Partners LP (the
"Guarantor"), as amended by Amendment No. 1, dated as of December 20, 2001 (the
"Second Warrant Agreement").
4 The Guarantor is deemed to have paid $0.15 per share in non-cash consideration
for a certain guarantee of Minrad's obligations.
5 The 7th anniversary of the date of the Second Warrant Agreement.
6 Issued pursuant to Warrant Agreement, dated March 28, 2002, by and between
Minrad Inc. and Xxxxxxx Xxxxx Specialty Group, LLC (the "Third Warrant
Agreement").
7 The 7th anniversary of the date of the Third Warrant Agreement.
8 Issued pursuant to Warrant Agreement, dated March 28, 2002, by and between
Minrad Inc. and Xxxxxxx Xxxxx Private Equity Fund I, L.P. (the "Fourth Warrant
Agreement").
9 The 7th anniversary of the date of the Fourth Warrant Agreement.
10 Issued pursuant to Warrant Agreement, dated March 28, 2002, by and between
Minrad Inc. and Xxxxxxx Xxxxx Private Equity Fund II, L.P. (the "Fifth Warrant
Agreement").
11 The 7th anniversary of the date of the Fifth Warrant Agreement.
12 Issued pursuant to Warrant Agreement, dated August 6, 2002, by and between
Minrad Inc. and Xxxxxxx Xxxxx Specialty Group, LLC (the "Sixth Warrant
Agreement").
13 The 7th anniversary of the date of the Sixth Warrant Agreement.
14 Issued pursuant to Warrant Agreement, dated August 29, 2002, by and between
Minrad Inc. and Xxxxxxx Xxxxx Specialty Group, LLC (the "Seventh Warrant
Agreement").
15 The 7th anniversary of the date of the Seventh Warrant Agreement.
