-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, M3hkcQFGENo1msVYMLwfSrgfMRYalt8Er1tR2qYhXBuwPKprV9XcyE2ORfADjZuA TnLRu+XfCXuCfYIdOzIZNg== 0000898432-05-000812.txt : 20050926 0000898432-05-000812.hdr.sgml : 20050926 20050926161152 ACCESSION NUMBER: 0000898432-05-000812 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20050926 DATE AS OF CHANGE: 20050926 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MINRAD INTERNATIONAL, INC. CENTRAL INDEX KEY: 0001121225 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 872099034 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-80813 FILM NUMBER: 051103021 BUSINESS ADDRESS: STREET 1: 847 MAIN ST. CITY: BUFFALO STATE: NY ZIP: 14203 BUSINESS PHONE: 716-855-1068 MAIL ADDRESS: STREET 1: 847 MAIN ST. CITY: BUFFALO STATE: NY ZIP: 14203 FORMER COMPANY: FORMER CONFORMED NAME: TECHNOLOGY ACQUISITION CORP DATE OF NAME CHANGE: 20000804 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KIMBERLIN KEVIN CENTRAL INDEX KEY: 0000904841 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: SPENCER TRASK SECURITIES INC STREET 2: 535 MADISON AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2123555565 SC 13D 1 schedule_13-d.txt SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 NAME OF ISSUER: Minrad International, Inc. TITLE OF CLASS OF SECURITIES: Common Stock, $0.01 par value per share. CUSIP NUMBER: 60443P103 NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS: Kevin B. Kimberlin c/o Spencer Trask & Co. 535 Madison Avenue, 18th Floor New York, NY 10022 Tel: (212) 355-5565 Fax: 212-751-3483 DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT: December 17, 2004 If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box: [ ]. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO.: 60443P103 1. NAME OF REPORTING PERSON: Kevin B. Kimberlin 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) (b) X 3. SEC USE ONLY 4. SOURCE OF FUNDS: AF 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): Yes No X 6. CITIZENSHIP OR PLACE OF ORGANIZATION: UNITED STATES 7. SOLE VOTING POWER: 470,776 shares 8. SHARED VOTING POWER: 8,521,414 shares 9. SOLE DISPOSITIVE POWER: 470,776 shares 10. SHARED DISPOSITIVE POWER: 8,521,414 shares 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 8,992,190 shares 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: Yes No X 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 27.56% 14. TYPE OF REPORTING PERSON: IN CUSIP NO.: 60443P103 1. NAME OF REPORTING PERSON: Spencer Trask Specialty Group, LLC 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) (b) x 3. SEC USE ONLY 4. SOURCE OF FUNDS: WC 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): Yes No X 6. CITIZENSHIP OR PLACE OF ORGANIZATION: UNITED STATES 7. SOLE VOTING POWER: 0 shares 8. SHARED VOTING POWER: 5,571,414 shares 9. SOLE DISPOSITIVE POWER: 0 shares 10. SHARED DISPOSITIVE POWER: 5,571,414 shares 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 5,571,414 shares 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: Yes No X 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 19.07% 14. TYPE OF REPORTING PERSON: OO CUSIP NO.: 60443P103 1. NAME OF REPORTING PERSON: Kevin Kimberlin Partners, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) (b) X 3. SEC USE ONLY 4. SOURCE OF FUNDS: WC 5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e): Yes No X 6. CITIZENSHIP OR PLACE OF ORGANIZATION: UNITED STATES 7. SOLE VOTING POWER: 0 shares 8. SHARED VOTING POWER: 2,950,000 shares 9. SOLE DISPOSITIVE POWER: 0 shares 10. SHARED DISPOSITIVE POWER: 2,950,000 shares 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON: 2,950,000 shares 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES: Yes No X 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 9.39% 14. TYPE OF REPORTING PERSON: OO ITEM 1. SECURITY AND ISSUER This Statement relates to the common stock, $0.01 par value per share (the "Common Stock"), of Minrad International, Inc. (the "Company"), a Nevada corporation (formerly Technology Acquisition Corporation, a Nevada corporation), whose principal executive offices are located at 847 Main Street, Buffalo, NY 14203. ITEM 2. IDENTITY AND BACKGROUND (a) This statement is filed jointly by Kevin B. Kimberlin ("Mr. Kimberlin"), Spencer Trask Specialty Group, LLC ("STSG") and Kevin Kimberlin Partners, L.P. ("KKP") (each, a "Reporting Person" and collectively, the "Reporting Persons"). (b) The business address of Mr. Kimberlin, and the principal business address and principal office address of each of STSG and KKP, is c/o Spencer Trask & Co., 535 Madison Avenue, New York, NY 10022. (c) Mr. Kimberlin's principal occupations are Chairman of the Board of Directors of Spencer Trask & Co. and a private investor. Each of STSG and KKP is principally engaged in the business of investing in securities. (d) No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) No Reporting Person has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Mr. Kimberlin is a United States citizen. STSG is a Delaware limited liability company. KKP is a Delaware limited partnership. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION As of the date of this statement, Mr. Kimberlin is a beneficial owner, for purposes of Section 13(d) of the Act, of 8,992,190 shares of Common Stock, representing 27.56% of such class of securities, based on the 28,463,991 shares of Common Stock outstanding as of June 30, 2005, as reported by the Company in its Form 10-QSB filed with the Securities and Exchange Commission (the "Commission") on August 5, 2005. As set forth in more detail below, the shares of Common Stock and securities exercisable for shares of Common Stock are held directly by STSG; KKP; Spencer Trask & Co. ("ST&Co."), a Delaware corporation principally engaged in the business of investing in securities; Spencer Trask Ventures Inc. ("STVI"), a Delaware corporation principally engaged in the business of investing in securities; and Spencer Trask Private Equity Fund I LP ("Fund I"), a Delaware limited partnership principally engaged in the business of investing in securities. STSG, KKP, ST&Co., STVI and Fund I are sometimes collectively referred to herein as the "Spencer Trask Entities". Mr. Kimberlin is the principal owner and the non-member manager of STSG and the general partner of KKP. Mr. Kimberlin is the sole stockholder and Chairman of the Board of Directors of ST&Co., and STVI is a wholly owned subsidiary of ST&Co. The general partner of Fund I is Trask Partners LLC, a Delaware limited liability company, which is wholly owned by ST&Co., and the manager of Fund I is ST Management LLC, a Delaware limited liability company, which also is wholly owned by ST&Co. The source of funds for the purchase of securities by Fund I is the assets of Fund I, and the source of funds for the purchase of securities by each of the other Spencer Trask Entities is the working capital of each such Spencer Trask Entity. On December 17, 2004, the Company completed the acquisition of Minrad Inc., a Delaware corporation ("Minrad"). The acquisition was effected through a reverse triangular merger in which Minrad merged with Technology Acquisition Subsidiary, Inc. ("Merger Sub"), a wholly owned subsidiary of the Company with nominal assets and liabilities that was formed for the purpose of facilitating the merger. Minrad was the surviving corporation in the merger with Merger Sub, and it became a wholly owned subsidiary of the Company. The Company effected the acquisition of Minrad under the terms of an Agreement and Plan of Exchange, dated July 16, 2004, as amended August 24, 2004 (the "Acquisition Agreement"). The Company filed a copy of the original Acquisition Agreement with the Commission as Exhibit 2.1 to a Form 8-K filed on July 15, 2004, and on August 30, 2004, it filed the amendment to the original agreement with the Commission as Exhibit 99.1 to a Form 8-K. In connection with the merger, the Company issued 22,363,896 shares of its Common Stock to Minrad's former stockholders in exchange for the 22,363,896 shares of Minrad common stock outstanding on the effective date of the merger. Also, in connection with the merger, outstanding common stock purchase warrants and stock options to purchase a total of 7,201,181 shares of Minrad's common stock were cancelled in exchange for warrants and stock options to purchase the same numbers of shares of the Company's Common Stock at the same exercise prices and otherwise on the same terms as the Minrad stock options and warrants that were cancelled. At the closing of the merger, in exchange for like securities of Minrad: STSG received 4,825,000 shares of Common Stock and immediately exercisable warrants to purchase 746,414 shares of Common Stock at an exercise price of $1.15 per share, expiring May 2, 2010; KKP received immediately exercisable warrants to purchase 2,500,000 shares of Common Stock at an exercise price of $1.00 per share, expiring August 9, 2008, and immediately exercisable warrants to purchase 150,000 shares of Common Stock at an exercise price of $0.75 per share, with one-third of such warrants expiring September 30, 2009, one-third expiring October 30, 2009 and one-third expiring November 30, 2009; ST&Co. received immediately exercisable warrants to purchase 190,628 shares of Common Stock at an exercise price of $1.15 per share, expiring May 2, 2010; STVI received immediately exercisable warrants to purchase 19,278 shares of Common Stock at an exercise price of $1.15 per share, expiring May 2, 2010; and Fund I received immediately exercisable warrants to purchase 260,870 shares of Common Stock at an exercise price of $1.15 per share, expiring May 2, 2010. Prior to the merger, KKP and Minrad had entered into a Letter Agreement, dated as of June 30, 2004, which extended and amended an Indemnity Agreement between KKP and Minrad, dated as of July 25, 2001 (collectively, the "Guarantee Agreement") pursuant to which KKP guaranteed Minrad's obligations under a certain demand note issued to Wachovia Bank (the "Wachovia Note"). As a result of the merger, Minrad's obligations under the Wachovia Note and Guarantee Agreement were assumed by the Company. The Guarantee Agreement provided that, for each month during which the outstanding balance under the Wachovia Note was not repaid in full, the Company would issue to KKP, on the first day of the following month, immediately exercisable five-year warrants to purchase 50,000 shares of Common Stock at an exercise price of $0.75 per share, subject to the terms of that certain Amended and Restated Warrant Agreement, dated as of November 2, 2001, as amended, between Minrad and KKP (the "Warrant Agreement"). Pursuant to the terms of the Guarantee Agreement and the Warrant Agreement, the Company issued warrants to purchase 50,000 such shares to KKP on the first day of each of the first six months of calendar year 2005, totaling warrants to purchase 300,000 shares of Common Stock at $0.75 per share. As of June 30, 2005, the Wachovia Note has been fully paid, and no further warrants have been issued in connection with the Guarantee Agreement or the Warrant Agreement. ITEM 4. PURPOSE OF TRANSACTION (a) All of the shares of Common Stock reported herein were acquired for investment purposes. Each of the Reporting Persons retains the right to change his or its investment intent from time to time to acquire additional shares of Common Stock, acquire other securities of the Company or sell or otherwise dispose of all or part of the Common Stock or other securities of the Company, if any, beneficially owned by him or it in any manner permitted by law. No Reporting Person presently has any plans or proposals that relate to or would result in any of the following: (b) An extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (c) A sale or transfer of a material amount of assets of the Company or of any of its subsidiaries; (d) Any change in the present Board of Directors or management of the Company; (e) Any material change in the present capitalization or dividend policy of the Company; (f) Any other material change in the Company's business or corporate structure; (g) Changes in the Company's charter, by-laws or instruments corresponding thereto or other actions that may impede the acquisition of control of the Company by any person; (h) A class of securities of the Company being delisted from a national securities exchange or ceasing to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) A class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or (j) Any action similar to any of those enumerated above. As part of the ongoing evaluation of their investments and investment alternatives, however, any or all of the Reporting Persons may consider effecting any of the foregoing transactions and, subject to applicable law, may formulate a plan or plans with respect to such transactions and, from time to time, may hold discussions with or make proposals to management and/or the Board of Directors of the Company, other stockholders of the Company or other third parties regarding such matters. The Reporting Persons will amend this Schedule 13D if there is any material change in their plans with respect to the foregoing. Any or all of the Reporting Persons may also buy or sell securities of the Company consistent with their investment objectives. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) Mr. Kimberlin is a beneficial owner, for purposes of Section 13(d) of the Act, of 8,992,190 shares of Common Stock, which represented beneficial ownership of approximately 27.56% of the Common Stock as of June 30, 2005. Specifically, Mr. Kimberlin may be deemed to beneficially own 4,825,000 shares of Common Stock and immediately exercisable warrants to purchase 4,167,190 shares of Common Stock held in the aggregate by the Spencer Trask Entities. STSG is a beneficial owner, for purposes of Section 13(d) of the Act, of 5,571,414 shares of Common Stock, which represented beneficial ownership of approximately 19.07% of the Common Stock as of June 30, 2005. KKP is a beneficial owner, for purposes of Section 13(d) of the Act, of 2,950,000 shares of Common Stock, which represented beneficial ownership of approximately 9.39% of the Common Stock as of June 30, 2005. The percentage of shares of Common Stock reported beneficially owned by each Reporting Person is based upon 28,463,991 shares outstanding, which is the total number of shares of Common Stock outstanding as of June 30, 2005, as reported by the Company in its Form 10-QSB filed with the Commission on August 5, 2005. Beneficial ownership has been determined in accordance with the rules of the Commission. (b) Mr. Kimberlin and STSG have the shared power to vote and dispose of the 5,571,414 shares of Common Stock and securities exercisable for shares of Common Stock held by STSG. Mr. Kimberlin and KKP have the shared power to vote and dispose of the securities exercisable for 2,950,000 shares of Common Stock held by KKP. Mr. Kimberlin and each of the other Spencer Trask Entities have the shared power to vote and dispose of the securities exercisable for shares of Common Stock held by each such other Spencer Trask Entity. (c) See Item 3 hereof. (d) With respect to the securities held by Fund I, the investors of Fund I have the right to receive dividends from, or the net proceeds from the sale of, such securities. With respect to the securities held by each of the other Spencer Trask Entities, no person other than Mr. Kimberlin and such other Spencer Trask Entity is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER See the description of the Gurantee Agreement and Warrant Agreement in Item 3 above. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS The Letter Agreement between KKP and Minrad, dated as of June 30, 2004, is filed herewith as Exhibit 7.1. The Indemnity Agreement between KKP and Minrad, dated as of July 25, 2001, is filed herewith as Exhibit 7.2. The Amended and Restated Warrant Agreement between KKP and Minrad, dated as of November 2, 2001, as amended, is filed herewith as Exhibit 7.3. An agreement relating to the filing of a joint statement as required by Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934 is filed herewith as Exhibit 7.4. SIGNATURE After reasonable inquiry and to the best of his knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. September 23, 2005 KEVIN B. KIMBERLIN /s/ Kevin B. Kimberlin ------------------------- Kevin B. Kimberlin SPENCER TRASK SPECIALTY GROUP, LLC By: /s/ Kevin B. Kimberlin ---------------------- Name: Kevin B. Kimberlin Title: Non-Member Manager KEVIN KIMBERLIN PARTNERS, L.P. By: /s/ Kevin B. Kimberlin ---------------------- Name: Kevin B. Kimberlin Title: General Partner EXHIBIT INDEX 7.1 Letter Agreement between KKP and Minrad, dated as of June 30, 2004 7.2 Indemnity Agreement between KKP and Minrad, dated as of July 25, 2001 7.3 Amended and Restated Warrant Agreement between KKP and Minrad, dated as of November 2, 2001, as amended 7.4 Agreement between Mr. Kimberlin, STSG and KKP, dated as of September 23, 2005, relating to the filing of a joint statement as required by Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934 EX-99 2 exhibit_7-1.txt EXHIBIT 7-1 MINRAD INC. June 30, 2004 Kevin Kimberlin Partners LP c/o Spencer Trask Specialty Group, LLC 535 Madison Avenue, 18th Floor New York, New York 10022 Attention: Kevin B. Kimberlin RE: $1,000,000 PRINCIPAL AMOUNT LINE OF CREDIT FROM WACHOVIA BANK, N.A. TO MINRAD INC. (THE "LOAN") Dear Kevin: I am writing to confirm that Kevin Kimberlin Partners LP ("KKP") hereby agrees to continue to guarantee, pursuant to that certain Amended and Restated Indemnity Agreement, by and between KKP and Minrad Inc. ("Minrad"), as amended, and any other documents executed in connection with such guarantee, the Loan (including any extension or renewal of the Loan on substantially similar terms), from the date hereof until September 30, 2004. I am also writing to confirm our agreement to provide KKP with 50,000 warrants ("Warrants") convertible into Minrad common stock at a purchase price of $.75 per share. The Warrants will have a five year term and be subject to mutually agreeable terms and conditions of a Warrant Agreement that is to be negotiated and executed by both KKP and Minrad if the Loan is not to be paid in full by September 30, 2004. A like number of Warrants will be issued to KKP on the first day of each month after September 30, 2004 that Minrad has an outstanding balance under the Loan. KKP acknowledges that the Warrants represent good and valuable consideration for the extension of this guarantee as the extension is necessary to induce other parties to enter into certain other agreements that benefit both Minrad and KKP, directly or indirectly. Please acknowledge the forgoing by signing below. Sincerely, /s/ William H. Burns, Jr. ------------------------- William H. Burns, Jr. Chairman and Chief Executive Officer ACKNOWLEDGED AND ACCEPTED: KEVIN KIMBERLIN PARTNERS, LP By: KKP Management LLC, its general partner By: /s/ Kevin B. Kimberlin ------------------------------------ Kevin B. Kimberlin Managing Member 847 Main Street o Buffalo, New York 14203 o Tel: (800) 832-3303 o (716) 855-1068 o Fax: (716) 855-1078 EX-99 3 exhibit_7-2.txt EXHIBIT 7-2 INDEMNITY AGREEMENT INDEMNITY AGREEMENT dated as of July 25, 2001 (the "Agreement") by and between Minrad Inc., a Delaware corporation (the "Company"), and Kevin Kimberlin Partners LP, a Delaware limited partnership ("Guarantor"). RECITALS: A. Guarantor has agreed to guarantee (the "Guaranty") the Company's obligations under (a) a series of loans by and between the Company and Wachovia Bank, N.A. (the "Lender") and (b) a Letter of Credit established by Wachovia in favor of the Company, for the Company's working capital needs not to exceed $400,000 in the aggregate (collectively the "Loans"). B. Lender would not have entered into the Loans with the Company without the Guaranty. C. The Company and Guarantor have entered into that certain Pledge and Security Agreement, dated as of the date hereof (the "Security Agreement"), whereby the Company has granted Guarantor a continuing security interest in the Collateral (as defined in the Security Agreement). AGREEMENT The Company and Guarantor agree as follows: 1. The Company agrees to irrevocably, unconditionally, and absolutely guarantee to Guarantor the full, faithful, timely and proper compliance and observance of the following covenants so long as Guarantor is required to guarantee the Company's performance under the Loans: (a) The Company shall provide Guarantor with a copy of all financial information reports, and all material documents, instruments, notices, correspondence and other information required to be provided or otherwise given by the Company to Lender or to any other party relating to the Loans; (b) The Company shall provide Guarantor with a copy of all material documents, instruments, notices, correspondence and other information received by the Company from Lender or any other party relating to the Loans; (c) The Company shall not commit fraud or material misrepresentation which may cause a default under any of the Loans; (d) The Company will not amend any of the Loans without the prior written consent of Guarantor, unless the effect of such amendment(s) is to terminate the liability of the Guarantor under the Guaranty; (e) The Company shall comply with, satisfy and fulfill each of its obligations under the Loans in accordance with their respective provisions; and (f) The Company shall cure any default, if curable, declared by Lender under any Loan, or satisfy any obligation incurred by the Guarantor pursuant to the Guaranty. 2. In order to induce the Guarantor to issue the Guaranty, and in consideration thereof, the Company agrees to issue to Guarantor or its designees warrants to purchase up to One Million (1,000,000) shares of the Company's Series B Convertible Preferred Stock, par value $1.15 per share (the "Series B Preferred Stock"), upon the terms and conditions set forth in the Warrant Agreement by and between the Company and the Guarantor, dated July 25, 2001, exercisable until the seventh anniversary of this Agreement in accordance with, and subject to, the aforementioned Warrant Agreement. 3. The Company agrees to protect, defend, indemnify and save harmless Guarantor from, and pay or reimburse it for, any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses imposed upon or incurred by or asserted against Guarantor under the Guaranty. 4. The Company agrees that Guarantor has the right, but not the obligation, to cure any and all defaults by the Company under any of the Loans as they may occur. If such a default or any breach of any covenants under any of the Loans by the Company shall occur, Guarantor shall have the right to take such actions as Guarantor deems reasonably necessary or appropriate to minimize or eliminate Guarantor's potential liability under the Guaranty. Guarantor shall not have any liability to the Company for any actions so taken. 5. This Agreement shall not be affected, modified or impaired by the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangements, composition with creditors or readjustment of, or other similar proceedings affecting, the Company. 6. Presentment, protest, demand, and notice of protest and demand, and notice or receipt of any and all collateral, and of the exercise of possessory remedies or foreclosure on any and all collateral received by Guarantor from the Company, or any other person, are hereby waived. All settlements, compromises, 2 compositions, accounts stated, and agreed balances in good faith between any primary or secondary obligors on any accounts received as collateral shall be binding upon the Company. 7. The failure by Guarantor at any time or times hereafter to require strict performance by the Company of any of the provisions, warranties, terms, and conditions contained herein or in any other agreement, document, or instrument now or hereafter executed by the Company and delivered to Guarantor shall not waive, affect, or diminish any right of Guarantor hereafter to demand strict compliance or performance therewith and with respect to any other provisions, warranties, terms and conditions contained in such agreements, documents, and instruments, and any waiver of a default hereunder shall not waive or affect any other default hereunder, whether prior or subsequent thereto and whether of the same or a different type. None of the warranties, conditions, provisions, and terms contained in this Agreement or in any agreement, document, or instrument now or hereafter executed by the Company and delivered to Guarantor shall be deemed to have been waived by any act or knowledge of Guarantor, its agents, officers or employees, but only by an instrument in writing, signed by an officer of Guarantor and directed to the Company specifying such waiver. 8. To induce Guarantor to enter into this Agreement, the Company represents and warrants to Guarantor as follows: (a) POWER TO INCUR OBLIGATIONS. The Company has the full power and unrestricted right to enter into this Agreement and to incur the obligations provided for herein. This Agreement has been authorized by all necessary corporate action; (b) CONFLICTS. This Agreement does not violate, conflict with, or constitute any default under any decree, judgment, or any agreement or instrument binding upon the Company. This Agreement does not violate any of the organizational documents of the Company; (c) PENDING MATTERS. No action or investigation is pending, or to the best of the Company's knowledge, threatened before or by any state or federal court or administrative agency that might result in any material adverse change in the financial condition or operations of the Company. The Company is not in violation of any agreement, the violation of which might reasonably be expected to have a material adverse effect on its businesses or assets, and the Company is not in violation of any order, judgment, or decree of any state or federal court; (d) FINANCIAL STATEMENTS ACCURATE. All financial statements of the Company hereafter provided by the Company are or will be true and complete in all material respects as of their respective dates and will fairly present the financial condition of the Company, and there are no material liabilities, direct or indirect, fixed or contingent, as of 3 the respective dates of such statements which are not reflected therein or in a written certificate delivered with such statements. The financial statements of the Company are prepared in accordance with GAAP applied on a consistent basis from year to year. There has been no material adverse change in the financial condition, operations, or prospects of the Company since the dates of such statements except as fully disclosed to Guarantor in writing with the delivery of such statements; (e) DISCLOSURE. Neither this Agreement nor any other document, financial statement, credit information, certificate or statement required herein to be furnished to Guarantor by the Company in connection with this Agreement contains any incorrect or misleading statement of a material fact nor omits to state a material fact required to make the statements herein not misleading; (f) ORGANIZATION OF THE COMPANY. The Company is a Delaware corporation, duly formed, validly existing and in good standing under the laws of its state of organization and is duly qualified to conduct its business in each jurisdiction where the nature of its activities or properties or the conduct of its business requires the Company to be so qualified; (g) CONSENT. No consent of any other party and no consent, license, approval or authorization with any governmental authority or agency is required in connection with the execution and delivery of this Agreement by the Company; and (h) DUE EXECUTION AND ENFORCEMENT. This Agreement constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its respective terms. 9. The covenants, agreements, and conditions contained herein or granted hereby shall be binding upon and shall inure to the benefit of the Company and Guarantor, and each of their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto, or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement. The Company may assign and transfer its interest in this Agreement only with Guarantor's prior written consent. 10. All notices, requests, demands, elections and other communications which either party to this Agreement may be required to give hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, by a reputable courier service which requires a signature upon delivery, by mailing the same by registered or certified first class mail, postage prepaid, return receipt requested, to the party to whom the same is so given or made, or via facsimile. Such notice, request, demand, waiver, election or other 4 communication will be deemed to have been given as of the date so delivered or two days after mailing thereof. (a) Notice to Guarantor: Kevin Kimberlin Partners LP c/o Spencer Trask Ventures, Inc. 535 Madison Avenue, 18th Floor New York, New York 10022 Attention: Kevin B. Kimberlin Facsimile Number: 212-751-3483 With a required copy to: Spencer Trask Ventures, Inc. 535 Madison Avenue, 18th Floor New York, New York 10022 Attention: Bruno D. Lerer Facsimile Number: 212-829-4453 (b) Minrad Inc. 847 Main Street Buffalo, New York 14202 Facsimile Number: (716) 855-1078 Attention: William H. Burns, Jr., Chief Executive Officer With a required copy to: Hodgson Russ LLP One M&T Plaza, Suite 2000 Buffalo, New York 14203-2391 Facsimile Number: (716) 849-0349 Attention: Robert Fleming or to such other addresses as such party shall have specified by notice to the other party hereto. 11. This Agreement constitutes the entire agreement and understanding between the parties hereto as to the matters set forth herein and supersedes and revokes all prior agreements and understandings, oral and written, between the parties hereto or otherwise with respect to the subject matter hereof. No change, amendment, termination or attempted waiver of any of the provisions hereof shall be binding upon any party unless set forth in an instrument in writing signed by the party to be bound or their respective successors in interest. 5 12. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A counterpart may consist of a signature page of this Agreement. 13. The section and other headings contained in this Agreement are for reference purposes only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. 14. Within this Agreement, the singular shall include the plural and the plural shall include the singular, and any gender shall include all other genders, all as the meaning and the context of this Agreement shall require. 15. The parties hereto shall cooperate fully at their own expense, except as otherwise provided in this Agreement, with each other and their respective counsel in connection with all steps to be taken as part of their obligations under this Agreement. 16. If any term, covenant, condition or provision of this Agreement or the application thereof to any circumstance shall be invalid or unenforceable to any extent, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable. 17. GOVERNING LAW. The validity and interpretation of this Agreement shall be construed in accordance with, and governed by, the internal laws of the State of New York, without regard to principles of conflicts of laws. 18. CONSENT TO JURISDICTION. THE PARTIES HEREBY AGREE THAT A NEW YORK COURT, STATE OR FEDERAL, LOCATED IN NEW YORK COUNTY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT. [Signature page follows] 6 IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date hereof. MINRAD INC. By: /s/ John C. McNeirney --------------------- John C. McNeirney Senior Vice President & Chief Technical Officer KEVIN KIMBERLIN PARTNERS LP By: /s/ Kevin B. Kimberlin ---------------------- Kevin B. Kimberlin General Partner 7 EX-99 4 exhibit_7-3.txt EXHIBIT 7-3 AMENDMENT NO. 1 TO AMENDED AND RESTATED WARRANT AGREEMENT THIS AMENDMENT NO. 1 (this "Amendment") to that certain Amended and Restated Pledge and Security Agreement dated November 2, 2001 (the "Amended and Restated Agreement") is dated as of December 20, 2001 and is by and between Minrad Inc. (the "Company") and Kevin Kimberlin Partners LP (the "Guarantor"). The Company and the Guarantor intended to be bound hereby agree as follows: 1. Any capitalized terms used and not otherwise defined herein shall have the defined meaning provided for in the Amended and Restated Warrant Agreement. 2. The Company and the Guarantor hereby agree that Schedule A of the Amended and Restated Warrant Agreement is hereby amended to read in its entirety as follows: "The principal amount of the Line of Credit between the Company and Wachovia Bank, N.A. shall not exceed an aggregate of One Million Dollars ($1,000,000)." IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, as of the day and year first above written. MINRAD INC. By: /s/ William H. Burns, Jr. ------------------------- Name: William H. Burns, Jr. Title: Chief Executive Officer KEVIN KIMBERLIN PARTNERS LP By KKP Management LLC, General Partner By: /s/ Kevin B. Kimberlin ---------------------- Name: Kevin B. Kimberlin Title: Nonmember Manager AMENDED AND RESTATED WARRANT AGREEMENT -------------------------------------- AMENDED AND RESATED WARRANT AGREEMENT dated as of November 2, 2001 (the "Agreement"), between MINRAD INC., a Delaware corporation ("Company"), and KEVIN KIMBERLIN PARTNERS LP ("Guarantor"). WITNESSETH WHEREAS, the Company and the Guarantor are parties to that certain Warrant Agreement, dated as of August 10, 2001 (the "Original Agreement"), pursuant to which the Company agreed to issue a warrant to purchase up to One Million (1,000,000) shares of the Company's common stock, par value $.01 per share ("Common Stock") to the Guarantor in consideration of Guarantor's guarantee under that certain Indemnity Agreement, dated July 25, 2001, by and between the Guarantor and the Company; WHEREAS, the Parties desire to amend the Original Agreement as set forth herein; WHEREAS, the Guarantor has agreed pursuant to the Amended and Restated Indemnity Agreement dated concurrently herewith, between the Guarantor and the Company (the "Indemnity Agreement") to guarantee the Company's obligations under a series of loans (the "Loans") by and between the Company and Wachovia Bank, N.A. (the "Lender") for the Company's working capital needs not to exceed the amount set forth on SCHEDULE A hereto, as amended from time to time (the "Line of Credit"); WHEREAS, the Warrants to be issued pursuant to this Agreement will be issued on the basis of one warrant to purchase two and one half (2-1/2) shares of the Company's Common Stock, per $1.00 borrowed under the Line of Credit, upon the Lender making available any Loans under the Line of Credit, by the Company to the Guarantor in consideration for, and as part of the Guarantor's compensation in connection with, the Guarantor acting as the Guarantor of the Loans pursuant to the Indemnity Agreement. NOW, THEREFORE, the parties hereto agree as follows: 1. GRANT. The Company hereby grants to the Guarantor, and its designee(s) and/or assigns (each, a "Holder"), the right to purchase, at any time during the term ("Warrant Exercise Term") commencing on the date hereof and ending at 5:30 p.m., New York time, on the seventh anniversary of the date of this Agreement, Two and One Half (2-1/2) shares of Common Stock (the "Warrant Shares"), per $1.00 borrowed under the Line of Credit, at an initial exercise price of $1.00 per share of the Common Stock (the "Exercise Price"). The Guarantor is deemed to have paid $0.15 per share in non-cash consideration upon the Guarantor's guarantee of the Company's obligations under the Loans and the Line of Credit. The Company hereby represents that the Common Stock issued pursuant to this Warrant represents approximately _% of the Company's capital stock on a fully diluted basis as of the date of this Agreement. 2. WARRANT CERTIFICATES. The Warrants shall be evidenced by warrant certificates ("Warrant Certificates") in the form of EXHIBIT A hereto which shall be issued and delivered to the Guarantor (or its designees) upon each Loan made by the Lender under the Line of Credit pursuant to this Agreement, with such appropriate insertions, omissions, substitutions and other variations as required or permitted by this Agreement. The Warrant Certificates, and the certificates representing the Warrant Shares and/or other securities, property or rights issuable upon exercise of the Warrants (collectively, the "Warrant Securities"), shall be executed on behalf of the Company by the manual or facsimile signature of the then present Chairman or Vice Chairman of the Board of Directors or President or Vice President of the Company attested to by the manual or facsimile signature of the then present Secretary or Assistant Secretary of the Company. Warrant Certificates shall be dated the date of execution by the Company upon initial issuance notwithstanding any subsequent division, exchange, substitution or transfer. 3. EXERCISE OF WARRANT. 3.1 EXERCISE. Warrants may be exercised, in whole or in part (but not as to fractional shares), by surrender of a Warrant Certificate with the annexed Form of Election to Purchase duly executed, together with payment of the Exercise Price for the Warrant Securities for which such Warrants are being exercised at the Company's principal office at Minrad Inc., 847 Main Street, Buffalo, New York 14203. The Exercise Price shall be payable by certified or official bank check. The Exercise Price may also be paid, in whole or in part, in shares of Common Stock owned by the Holder having a Fair Market Value (as defined below) on the last business day immediately preceding the Exercise Date (as defined below) equal to the portion of Exercise Price being paid in such shares. Alternatively, the Warrants may be exercised in the manner specified in this Section 3, together with irrevocable instructions to the Company to issue in exchange for the Warrant Certificate the number of shares of Common Stock equal to the product of (a) the number of shares as to which the Warrants are being exercised multiplied by (b) a fraction the numerator of which is the Fair Market Value (as defined below in Section 3.3 herein) of a share of Common Stock on the five (5) business days ending two (2) days immediately preceding the Exercise Date less the Exercise Price therefor and the denominator of which is such Fair Market Value. In the case of the purchase of less than all the shares of Common Stock purchasable under any Warrant Certificate, the Company shall cancel said Warrant Certificate and shall execute and deliver a new Warrant Certificate of like tenor for the unexercised balance of the Warrant Securities. For purposes hereof, "Exercise Date" shall mean the date on which all deliveries required to be made to the Company upon exercise of Warrants pursuant to this Section 3.1 shall have been made. 3.2 ISSUANCE OF CERTIFICATES FOR WARRANT SHARES. Upon the exercise of the Warrants, the issuance of certificates for Warrant Securities shall be made forthwith (and in any event such issuance shall be made within 10 business days from the Exercise Date) without charge to the Holder thereof including, without limitation, any tax which may be payable in respect of the issuance thereof, and such certificates shall (subject to the provisions of Section 4 hereof) be issued in the name of, or in such names as may be directed by, the Holder 2 thereof; PROVIDED, HOWEVER, that the Company shall not be required to pay any tax which may be payable in respect of any transfer to a person other than the Holder involved in the issuance and delivery of any such certificates and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. 3.3 FAIR MARKET VALUE. As is used herein, the "Fair Market Value" of a share of Common Stock on any day means: the amount per share of Common Stock equal to (a) if the principal market for the Common Stock is The New York Stock Exchange, any other national securities exchange or The Nasdaq National Market, the closing sales price of the Common Stock on such day as reported by such exchange or market, or on a consolidated tape reflecting transactions on such exchange or market, or (b) if the principal market for the Common Stock is not a national securities exchange or The Nasdaq National Market and the Common Stock is quoted on the National Association of Securities Dealers Automated Quotations System, the mean between the closing bid and the closing asked prices for the Common Stock on such day as quoted on such System, or (c) if the Common Stock is not quoted on the National Association of Securities Dealers Automated Quotations System, the mean between the highest bid and lowest asked prices for the Common Stock on such day as reported by the Pink Sheets LLC; provided, that if none of (a), (b) or (c) above is applicable, or if no trades have been made or no quotes are available for such day, the Fair Market Value of the Common Stock shall be determined, in good faith, by the Board of Directors of the Company. 4. TRANSFER OF SECURITIES. Each Holder, by acceptance of a Warrant Certificate, covenants and agrees that it is acquiring the Warrants evidenced thereby, and, upon exercise thereof, the Warrant Securities, for its own account as an investment and not with a view to distribution thereof. The Warrant Securities have not been registered under the Securities Act of 1933, as amended (the "Act"), or any state securities laws and no transfer of any Warrant Securities shall be permitted unless the Company has received notice of such transfer, at the address of its principal office set forth in Section 3.1 hereof, in the form of assignment attached hereto, accompanied by an opinion of counsel reasonably satisfactory to the Company that an exemption from registration of such Warrant Securities under the Act is available for such transfer. Upon any exercise of the Warrants, certificates representing any Warrant Shares or Warrant Securities shall bear the following legend: THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE REGISTERED HOLDER SATISFACTORY TO COUNSEL FOR THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES 3 ACT, AND UNDER SUCH LAWS. Any purported transfer of any Warrants, Warrant Shares or Warrant Securities not in compliance with the provisions of this Section 4 shall be null and void. 5. REGISTRATION RIGHTS. 5.1 PIGGYBACK REGISTRATION. (a) If, at any time commencing after the date hereof and ending on the first anniversary of the expiration of the Warrant Exercise Term, the Company proposes to register any of its securities under the Act for sale to the public, whether for its own account or for the account of other security holders or both (except with respect to an initial public offering and/or registration statements on Forms S-4 or S-8) it will give written notice by registered mail, at least sixty (60) days prior to the filing of each such registration statement, to all Holders of its intention to do so. If a Holder shall notify the Company within sixty (60) days after receipt of any such notice of its desire to include any shares of Common Stock underlying the Warrant Shares in such proposed registration statement, the Company shall cause such shares as to which registration shall have been so requested to be included therein, all to the extent requisite to permit the sale or other disposition by the holder of such shares so registered. (b) Notwithstanding the foregoing, in the event that any registration pursuant to Section 5.1(a) shall be, in whole or in part, an underwritten public offering of Common Stock and the managing underwriter advises the Company in writing that in its opinion the number of shares of Common Stock underlying the Warrant Shares and/or other securities requested to be included in such offering exceeds the amount of securities which can be sold in an orderly manner in such offering within a price range acceptable to the Company without adversely affecting the marketability of the offering, then the Company will include in such registration (i) first, the securities the Company proposes to sell or, if such registration, the securities such holders propose to sell, and (ii) second, the shares of Common Stock underlying the Warrant Shares and/or other securities requested be included in such registration, pro rata from among the Holders and all other holders of the Company's securities that have the right to request inclusion of such securities in such registration, according to the number of shares of Common Stock underlying the Warrant Shares, the Warrants and/or other securities requested by them to be so included. Notwithstanding the foregoing provisions, the Company may withdraw any registration statement referred to in this Section 5.1 without thereby incurring any liability to the Holders. In connection with any registration pursuant to this Agreement covering a public offering by the Company, each Holder, by acceptance of a Warrant Certificate, hereby appoints Guarantor to act as its Guarantor to negotiate the terms of any restriction on the right of such Holder to sell its Warrant Shares and/or Warrants which shall be imposed by the managing underwriter for such offering; PROVIDED, HOWEVER, that a majority of Holders shall approve any terms so negotiated. Nothing contained in this Section 5 shall be construed as requiring the 4 Holder(s) to exercise their Warrants prior to the initial filing of any registration statement or the effectiveness thereof. 5.2 EXPENSES. All expenses incurred by the Company in complying with this Section 5, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel and independent public accountants for the Company, fees and expenses (including counsel fees) incurred in connection with complying with state securities or "blue sky" laws, fees of the National Association of Securities Dealers, Inc., fees of transfer Guarantors and registrars, costs of insurance and fees and disbursements of one counsel for the sellers of the shares of Common Stock underlying the Warrant Shares, but excluding any Selling Expenses, are called "Registration Expenses." All underwriting discounts and selling commissions applicable to the sale of the registrable securities are called "Selling Expenses." The Company will pay all Registration Expenses in connection with each registration statement under this Section 5. All Selling Expenses in connection with each registration statement under this Section 5 shall be borne by the participating sellers in proportion to the number of securities sold by each or as they may otherwise agree. 5.3 INDEMNITY. (a) The Company shall indemnify each Holder of Warrant Shares, the underlying shares of Common Stock of which are to be sold pursuant to any registration statement and each person, if any, who controls such Holder within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act or otherwise, in connection with the offer and sale of shares of Common Stock underlying such Warrant Shares; PROVIDED, HOWEVER, that the Company will not be liable in any such case to the extent that any such claim, damage or liability results from an untrue statement or alleged untrue statement or an omission or alleged omission made in such registration statement in reliance upon and in conformity with written information furnished to the Company by such Holder or any such controlling persons specifically for inclusion therein. (b) Each Holder of the Warrant Shares, the underlying shares of Common Stock or which are to be sold pursuant to a registration statement, and their successors and assigns, shall, severally and not jointly, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any such claim) to which it may become subject under the Act or otherwise, to the extent, but only to the extent, resulting from written. information furnished by or on behalf of such Holder, or its successors or assigns, for specific inclusion in such registration statement. 5 6. EXCHANGE AND REPLACEMENT OF WARRANT CERTIFICATES. Each Warrant Certificate is exchangeable without expense, upon the surrender thereof by the registered Holder at the principal office of the Company, for a new Warrant Certificate of like tenor and date representing in the aggregate the right to purchase the same number of securities in such denominations as shall be designated by the Holder thereof at the time of such surrender. Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of any Warrant Certificate, and, in case of loss, .theft or destruction, of indemnity or security reasonably satisfactory to it, and reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of the Warrants, if mutilated, the Company will make and deliver a new Warrant Certificate of like tenor, in lieu thereof. 7. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be required to issue certificates representing fractions of shares of Common Stock upon the exercise of the Warrants, but instead shall pay cash in lieu of such fractional interests to the Holders entitled thereto based on the Fair Market Value of the Common Stock as determined in good faith by the Board of Directors of the Company. 8. RESERVATION AND LISTING OF SECURITIES. The Company shall at all times reserve and keep available out of its authorized shares of Common Stock, solely for the purpose of issuance upon the exercise of the Warrants, such number of shares of Common Stock or other securities, properties or rights as shall be issuable upon the exercise thereof. The Company covenants and agrees that, upon exercise of the Warrants and payment of the Exercise Price therefor, all shares of Common Stock and other securities issuable upon such exercise shall be duly and validly issued, fully paid, nonassessable and not subject to the preemptive rights of any stockholder. 9. NOTICES TO WARRANT HOLDERS. Nothing contained in this Agreement shall be construed as conferring upon the Holders the right to vote or to consent or to receive notice as a stockholder in respect of any meetings of stockholders for the election of directors or any other matter, or as having any rights whatsoever as a stockholder of the Company. If, however, at any, time prior to the expiration of the Warrants and their exercise, any of the following events shall occur: (a) the Company shall take a record of the holders of its shares of Common Stock for the purpose of entitling them to receive a dividend or distribution payable otherwise than in cash, or a cash dividend or distribution payable otherwise than out of current or retained earrings, as indicated by the accounting treatment of such dividend or distribution on the books of the Company; or (b) the Company shall offer to all the holders of its Common Stock any additional shares of capital stock of the Company or securities convertible into or exchangeable for shares of capital stock of the Company, or any option right or warrant to subscribe therefor; or 6 (c) a dissolution, liquidation, merger, consolidation or winding up of the Company or a sale of all or substantially all of its property, assets and business as an entirety shall be proposed; then, in any one or more of said events, the Company shall give written notice of such event at least 20 days prior to the date fixed as a record date for the dividend or distribution or the date of closing the transfer books for the determination of the stockholders entitled to be issued any convertible or exchangeable securities or subscription rights, or entitled to vote on such proposed dissolution, liquidation, winding up or sale. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. Failure to give such notice or any defect therein shall not affect the validity of any action taken in connection with the declaration or payment of any such dividend, or the issuance of any convertible or exchangeable securities, or subscription rights, options or warrants, or any proposed dissolution, liquidation, merger, consolidation, winding up or sale. 10. NOTICES. All notices, requests, consents and other communications hereunder shall be in writing and shall be deemed to have been duly made when delivered, or mailed by registered or certified mail; return receipt requested: (a) If to a Holder, to the address of such Holder as shown on the books of the Company; or (b) If to the Company, to the address set forth in Section 3.1 hereof, or to such other address as the Company may designate by notice to the Holders. 11. SUPPLEMENTS AND AMENDMENTS. The Company and the Guarantor may from time to time supplement or amend this Agreement without the approval of any Holders in order to cure any ambiguity, to correct or supplement any provision contained herein which may be defective or inconsistent with any provision herein, or to make any other provisions in regard to matters or questions arising hereunder which the Company and the Guarantor may deem necessary or desirable and which the Company and the Guarantor deem shall not adversely affect the interests of any other Holders of Warrant Certificates. Other amendments to this Agreement may be made only with the written consent of a majority of Holders. 12. SUCCESSORS. All the covenants and provisions of this Agreement shall be binding upon and inure to the benefit of the Company, the Holders and their respective successors and assigns hereunder. 13. TERMINATION. This Agreement shall terminate at the close of business on the expiration of the Warrant Exercise Term. Notwithstanding the foregoing, the indemnification provisions of Section 5.3 hereof shall survive such termination. 14. GOVERNING LAW: Submission to Jurisdiction. This Agreement and each Warrant Certificate issued hereunder shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts entered into and to be performed wholly within said State. 7 The Company, the Guarantor and each of the Holders hereby agree that any action, proceeding or claim against it arising out of, or relating in any way to, this Agreement shall be brought and enforced in the courts of the State of New York, and any Federal court located in the County of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company, the Guarantor and each of the Holders hereby irrevocably waives any objection to such exclusive jurisdiction or inconvenient forum. Any such process or summons to be served upon any of the Company, the Guarantor and any of the Holders (at the option of the party bringing such action, proceeding or claim) may be served by transmitting a copy thereof, by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address as set forth in Section 10 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the party so served in any action, proceeding or claim. The Company and each Holder, by its acceptance of a Warrant Certificate, agrees that the prevailing party(ies) in any such action or proceeding shall be entitled to recover from the other party(ies) all of its/their reasonable legal costs and expenses relating to such action or proceeding and/or incurred in connection with the preparation therefor. 15. ENTIRE AGREEMENT. This Agreement contains the entire understanding between the parties hereto and supersedes all prior agreements and understandings, written or oral, with respect to the subject matter hereof. 16. SEVERABILITY. If any provision of this Agreement shall be held to be invalid and unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement. 17. CAPTIONS. The caption headings of the Sections of this Agreement are for convenience of reference only and are not intended, nor should they be construed as, a part of this Agreement and shall be given no substantive effect. 18. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be construed to give to any person or corporation other than the Company and the Guarantor and any other Holder(s) of the Warrant Certificates or Warrant Securities any legal or equitable right, remedy or claim under this Agreement; and this Agreement shall be for the sole and exclusive benefit of the Company and the Guarantor and any other such Holder(s). 19. COUNTERPARTS. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and such counterparts shall together constitute but one and the same instrument. 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of the day and year first above written. MINRAD INC. By: /s/ William H. Burns, Jr. ------------------------- Name: William H. Burns, Jr. Title: Chief Executive Officer KEVIN KIMBERLIN PARTNERS LP By KKP Management LLC, General Partner By: /s/ Kevin B. Kimberlin ---------------------- Name: Kevin B. Kimberlin Title: Nonmember Manager 9 SCHEDULE A ---------- The principal amount of the Line of Credit by and between the Company and Wachovia Bank, N.A. shall not exceed an aggregate of $800,000. [FORM OF WARRANT CERTIFICATE] THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, OR TRANSFERRED IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION UNDER FEDERAL AND STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL FOR THE REGISTERED HOLDER SATISFACTORY TO COUNSEL FOR THE COMPANY THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT, AND UNDER SUCH LAWS. THE TRANSFER OR EXCHANGE OF THE WARRANTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE WARRANT AGREEMENT REFERRED TO HEREIN. No. W- ______________Warrants WARRANT CERTIFICATE This Warrant Certificate certifies that , or its assigns, is the holder of Warrants to purchase initially, at any time after the date hereof until 5:30 p.m. New York time on the last day of the Warrant Exercise Term ("Expiration Date"), up to fully paid and non-assessable shares of common stock, par value $0.01 per share ("Common Stock"), of Minrad Inc., a Delaware corporation (the "Company"), (shares of the Common Stock are referred to herein individually as a "Security" and collectively as the "Securities"), at the initial exercise price, subject to adjustment in certain events (the "Exercise Price"), of $1.00 upon surrender of this Warrant Certificate and payment of the Exercise Price at an office or agency of the Company, but subject to the conditions set forth herein and in the Amended and Restated Warrant Agreement dated as of November 2, 2001, between the Company and Kevin Kimberlin Partners L.P. (the "Warrant Agreement"). Capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Warrant Agreement. Payment of the Exercise Price shall be made by certified or official bank check payable to the order of the Company or by any other method permitted by the Warrant Agreement. No Warrant may be exercised after 5:30 p.m., New York, time, on the Expiration Date, at which time all Warrants evidenced hereby, unless exercised prior thereto, hereby shall thereafter be void. The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants issued pursuant to the Warrant Agreement, which Agreement is hereby incorporated by reference in and made a part of this instrument and to which reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Company and the Holders of the Warrants. The Warrant Agreement provides that upon the occurrence of certain events the Exercise Price and the type and/or number of the Company's securities issuable thereupon may, subject to certain conditions, be adjusted. In such event, the Company will, at the request of the Holder, issue a new Warrant Certificate evidencing the adjustment in the Exercise Price and the number and/or type of securities issuable upon the exercise of the Warrants; PROVIDED, HOWEVER, that the failure of the Company to issue such new Warrant Certificates shall not in any way change, alter, or otherwise impair, the rights of the Holder as set forth in the Warrant Agreement. Upon due presentment for registration of transfer of this Warrant Certificate and the executed form of assignment as attached hereto at the office of the Company set forth in the Warrant Agreement, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided herein and in the Warrant Agreement, without any charge except for any tax or other governmental charge imposed in connection with such transfer. Upon the exercise of less than all of the Warrants evidenced by this Certificate, the Company shall forthwith issue to the Holder hereof a new Warrant Certificate representing such unexercised Warrants. The Company may deem and treat the Holder(s) hereof as reflected on the records of the Company as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, and of any distribution to the Holder(s) hereof, and for all other purposes, and the Company shall not be affected by any notice to the contrary. IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated as of , 2001 --------------- MINRAD INC. [SEAL] By: _________________________ Name: William H. Burns, Jr. Title: Chief Executive Officer By: _________________________ [____________________] Secretary Attest: - ------------------------------------- - ------------------------------------- - ------------------------------------- 13 [FORM OF ELECTION TO PURCHASE PURSUANT TO SECTION 3.1(a)] The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to purchase shares of Common Stock, par value $.01 per share, of Minrad Inc. In accordance with the terms of Section 3.1(a) of the Warrant Agreement dated as of _____________, 2001, between Minrad Inc. and Kevin Kimberlin Partners L.P., the undersigned requests that a certificate for such securities be registered in the name of ___________________________ whose address is ________________________ and that such Certificate be delivered to whose address is __________________________ Dated: __________________________, 20__ ____________________________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate.) ____________________________________________ (Insert Social Security or Other Identifying Number of Holder) [FORM OF ASSIGNMENT] (To be executed by the Holder if such Holder desires to transfer the Warrant Certificate.) FOR VALUE RECEIVED ______________________________________________________ hereby sells, assigns and transfers unto _____________________________________________ (Please print name and address of transferee) this Warrant Certificate, together with all right, title and interest therein, and does hereby irrevocably constitute and appoint Attorney, to transfer the within Warrant Certificate on the books of Minrad, Inc., with full power of substitution. Dated:____________________, 2001 ____________________________________________ (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate.) ____________________________________________ (Insert Social Security or Other Identifying Number of Holder) EX-99 5 exhibit_7-4.txt EXHIBIT 7-4 AGREEMENT The undersigned agree that the attached Schedule 13D, dated September 23, 2005, relating to the Common Stock, par value $0.01, of Minrad International, Inc., shall be filed as a joint statement on behalf of the undersigned. Dated: September 23, 2005 KEVIN B. KIMBERLIN /s/ Kevin B. Kimberlin ---------------------------------- Kevin B. Kimberlin SPENCER TRASK SPECIALTY GROUP, LLC By: /s/ Kevin B. Kimberlin ------------------------------ Name: Kevin B. Kimberlin Title: Non-Member Manager KEVIN KIMBERLIN PARTNERS, L.P. By: /s/ Kevin B. Kimberlin ------------------------------ Name: Kevin B. Kimberlin Title: General Partner -----END PRIVACY-ENHANCED MESSAGE-----