Exhibit 7.5
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (this "AGREEMENT"), effective as of
January 1, 2006, by and between Xxxxx Xxxxxxxxx Partners, L.P., a Delaware
limited partnership (the "PURCHASER"), and Xxxxxxx Xxxxx Specialty Group, LLC, a
Delaware limited liability company (the "SELLER").
W I T N E S S E T H:
WHEREAS, the Seller is the holder of 4,825,000 shares of common stock, par
value $0.01 per share (the "COMMON STOCK"), of Minrad International, Inc., a
Delaware corporation (the "COMPANY"), and currently exercisable warrants to
purchase up to 746,414 shares of Common Stock at an exercise price of $1.15 per
share and expiring May 2, 2010 (the "WARRANTS"); and
WHEREAS, the Purchaser desires to purchase such 4,825,000 shares of Common
Stock (the "SHARES") and such Warrants (together with the Shares, the
"SECURITIES") from the Seller, and the Seller desires to sell to the Purchaser
the Securities, subject to the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. PURCHASE AND SALE.
1.1 SALE AND PURCHASE OF COMMON STOCK. At the Closing (as defined
below), the Seller shall sell to the Purchaser, and the Purchaser shall purchase
from the Seller, for the Purchase Price (as defined in Section 1.2 hereof), the
Securities.
1.2 PURCHASE PRICE. The purchase price for the Shares shall be
the cancellation by the Purchaser of $5,133,800 in current indebtedness owed by
the Seller to the Purchaser pursuant to that certain grid note of the Seller,
dated August 11, 1999 (the "GRID NOTE"), and the purchase price for the Warrants
shall be the cancellation by the Purchaser of $128,756 in current indebtedness
owed by the Seller to the Purchaser pursuant to the Grid Note, reflecting an
aggregate purchase price of $5,262,556 (the "PURCHASE PRICE").
2. CLOSING.
2.1 CLOSING. The purchase and sale of the Shares (the "CLOSING")
shall be deemed to have taken place at the offices of Xxxxxxxxxxx & Xxxxxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 a.m., local time, on the
date hereof.
2.2 TRANSACTIONS AT CLOSING. At the Closing, (i) the Seller shall
deliver to the Purchaser, in accordance with the terms hereof, certificates
evidencing the Shares and the Warrants and (ii) the Purchaser shall deliver to
the Seller written evidence of cancellation of the indebtedness representing the
Purchase Price.
2.3 CONDITIONS TO CLOSING. The Purchaser and the Seller agree
that the Closing shall be subject to the Company's (or its transfer agent's)
acceptance of an opinion letter of counsel to the Seller and agreement to permit
the transfer contemplated hereby on the books and records of the Company.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller hereby
represents and warrants to the Purchaser that:
3.1 PROCEEDINGS. There is no suit, action or proceeding pending
or, to the best of the knowledge of the Seller, threatened against the Seller
that could delay or impair in any material respect or prevent the consummation
of the transaction contemplated by this Agreement. There is no judgment,
decree, injunction, rule or order outstanding against the Seller having, or that
could reasonably be expected to have, any effect referred to in the immediately
preceding sentence.
3.2 AUTHORITY; BINDING AGREEMENT. The execution and delivery by
the Seller of this Agreement and the performance by the Seller of its
obligations hereunder, and the consummation of the transaction contemplated
hereby, have been validly authorized by all necessary company action on the part
of the Seller. The Seller has all necessary company power with respect to the
foregoing. This Agreement is the valid and binding obligation of the Seller,
enforceable against it in accordance with its terms.
3.3 NONCONTRAVENTION. Neither the execution and delivery by the
Seller of this Agreement, nor the performance by it of any of its obligations
hereunder, will (i) conflict with any provision of any organizational or
governing document of the Seller, (ii) give rise to a default under or violate
the terms of any agreement to which the Seller is a party or to which it is
otherwise bound, or require any consent, approval or notice thereunder, or
(iii) violate any order, decree, statute, rule or regulation of any court or
governmental authority applicable to the Seller.
3.4 OWNERSHIP. The Seller is the sole record holder and
beneficial owner of the Securities, and the Securities are free and clear of all
pledges and restrictions on transfer, other than restrictions of general
applicability under the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and state securities laws. The Seller has not granted any person any
rights under and is not a party to (or has, as of the date hereof, irrevocably
waived all rights under) any option, warrant, right, agreement or commitment
providing for the disposition or acquisition of any of the Securities (other
than this Agreement). The Seller is not a party to (or has, as of the date
hereof, irrevocably terminated) any voting trust, proxy or other agreement or
understanding with respect to the voting of any of the Securities. The resale
of such Securities by the Seller as provided herein shall, upon the Closing,
vest the Purchaser with good and unencumbered title to such Securities.
3.5 INVESTMENT INTENT. The Seller acquired the Securities over
three (3) years prior to the date hereof and has held such Securities
continuously from such time. The Seller acquired the Securities for its own
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account, for investment and not with a view to, or for resale in connection
with, any distribution of such Securities or any part thereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. The
Purchaser hereby represents and warrants to the Seller that:
4.1 PROCEEDINGS. There is no suit, action or proceeding pending
or, to the best of the knowledge of the Purchaser, threatened against the
Purchaser that could delay or impair in any material respect or prevent the
consummation of the transaction contemplated by this Agreement. There is no
judgment, decree, injunction, rule or order outstanding against the Purchaser
having, or that could reasonably be expected to have, any effect referred to in
the immediately preceding sentence.
4.2 AUTHORITY; BINDING AGREEMENT. The execution and delivery by
the Purchaser of this Agreement and the performance by the Purchaser of its
obligations hereunder, and the consummation of the transaction contemplated
hereby, have been validly authorized by all necessary partnership action on the
part of the Purchaser. The Purchaser has all necessary partnership power with
respect to the foregoing. This Agreement is the valid and binding obligation of
the Purchaser, enforceable against it in accordance with its terms.
4.3 NONCONTRAVENTION. Neither the execution and delivery by the
Purchaser of this Agreement, nor the performance by it of any of its obligations
hereunder, will (i) conflict with any provision of any organizational or
governing document of the Purchaser, (ii) give rise to a default under or
violate the terms of any agreement to which the Purchaser is a party or to which
it is otherwise bound, or require any consent, approval or notice thereunder, or
(iii) violate any order, decree, statute, rule or regulation of any court or
governmental authority applicable to the Purchaser.
4.4 INVESTMENT REPRESENTATIONS. The Purchaser is acquiring the
Securities for the Purchaser's own account, for investment and not with a view
to, or for resale in connection with, any distribution of such Securities or any
part thereof, subject to any registration rights of such Securities.
4.5 INVESTMENT EXPERIENCE; ACCESS TO INFORMATION. The Purchaser
(i) is an "accredited investor" as that term is defined in Rule 501(a)
promulgated under the Securities Act, (ii) is able to fend for itself in
transactions of the type contemplated by this Agreement, (iii) has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of this investment, (iv) has the ability to bear
the economic risks of this investment and understands that it must bear such
economic risks for an indefinite period, (v) has been afforded the opportunity
to ask questions of, and to receive answers from, the Company and to obtain any
additional information, to the extent the Company had such information or could
have acquired it without reasonable effort or expense, necessary for the
Purchaser to make an informed investment decision with respect to its purchase
of the Securities and (vi) acknowledges that the Securities are "restricted
securities" under the Securities Act.
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5. INDEMNIFICATION.
5.1 OBLIGATION OF THE SELLER TO INDEMNIFY. Subject to the
expiration date contained in Section 5.3 hereof, the Seller shall indemnify,
defend and hold harmless the Purchaser and its officers, partners, agents,
affiliates, successors and permitted assigns from and against, and shall pay
and/or reimburse the foregoing persons for, any and all losses, liabilities,
claims, obligations, damages and costs and expenses (including reasonable
attorneys' fees and disbursements and other costs incurred or sustained in
connection with the investigation, defense or prosecution of any such claim or
obligation), whether or not involving a third-party claim (collectively,
"LOSSES"), relating to or arising out of the breach of any representation,
warranty, covenant or agreement of the Seller contained in this Agreement.
5.2 OBLIGATION OF THE PURCHASER TO INDEMNIFY. Subject to the
expiration date contained in Section 5.3 hereof, the Purchaser shall indemnify,
defend and hold harmless the Seller and its officers, members, managers, agents,
affiliates, successors and permitted assigns from and against, and shall pay
and/or reimburse the foregoing persons for, any and all Losses relating to or
arising out of the breach of any representation, warranty, covenant or agreement
of the Purchaser contained in this Agreement.
5.3 SURVIVAL. The representations and warranties contained in
this Agreement shall survive the consummation of the transaction contemplated
hereby for 12 months.
6. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered by hand or by
facsimile transmission, when transmitted by facsimile transmission, or upon
receipt, when mailed by registered or certified mail (return receipt requested),
postage prepaid.
7. MODIFICATIONS; WAIVER. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally or in writing,
except that any provision of this Agreement may be amended and the observance of
any provision hereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) with (but only with) the written
consent of the parties.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the transactions contemplated hereby, and
supersedes all negotiations, agreements, representations, warranties,
commitments, whether in writing or oral, prior to the date hereof.
9. SUCCESSORS AND ASSIGNS. All of the terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto.
10. EXECUTION AND COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, and both of which together shall constitute one instrument.
11. GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed by
the laws of the State of New York. Each of the parties hereby consents to the
exclusive jurisdiction of the Federal and New York State courts located in
Manhattan, New York and hereby waives any objection to venue or forum laid
therein. In the event any provision of this Agreement or the application of any
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such provision to any party shall be held by a court of competent jurisdiction
to be contrary to law, the remaining provisions of this Agreement shall remain
in full force and effect.
12. HEADINGS. The descriptive headings of the Sections hereof are
inserted for convenience only and do not constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Dated: May 3, 2006
XXXXXXX XXXXX SPECIALTY GROUP, LLC
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name:Xxxxx Xxxxxxxxx
Title:Nonmember Manager
XXXXX XXXXXXXXX PARTNERS, L.P.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name:Xxxxx Xxxxxxxxx
Title:Nonmember Manager
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