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Exhibit 10.1 VOTING AGREEMENT
VOTING
AGREEMENT, dated as of December 22, 2008 (this "
Agreement "), among Piramal Healthcare, Inc., a Delaware
corporation (" Purchaser "), and the persons listed on
Schedule I hereto (each a " Stockholder " and,
collectively, the " Stockholders "). RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement,
Purchaser, Mayflower Acquisition Corp, a Delaware corporation and
wholly owned subsidiary of Purchaser (" PH Sub "), Minrad
International, Inc., a Delaware corporation (the " Company
"), and (solely with respect to certain limited sections of the
agreement) Piramal Healthcare Limited, an Indian public limited
company are entering into an Agreement and Plan of Merger (the "
Merger Agreement "), which provides, among other things, for
the acquisition of the Company by Purchaser by means of a merger of
PH Sub with and into the Company (the " Merger "), all on
the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS,
each Stockholder is the record and/or beneficial owner of such
number of shares of common stock of the Company, par value $0.01
per share (the " Company Common Stock "), as is set forth
opposite such Stockholder’s name on Schedule I
hereof (collectively, the " Existing Shares ");
WHEREAS,
as an inducement and a condition to entering into the Merger
Agreement, each of the Stockholders has agreed with Purchaser and
PH Sub to enter into this Agreement; and
WHEREAS,
the Board of Directors of the Company has approved this Agreement
and the transactions contemplated hereby prior to the date hereof;
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree
as follows:
1.
DEFINITIONS . For purposes of this Agreement:
(a) "
Additional Shares " shall mean any shares of Company Common
Stock other than the Existing Shares for which the Stockholder
acquired beneficial ownership in any capacity after the date hereof
and prior to the termination of this Agreement by means of
purchase, dividend, distribution, exercise of options, warrants,
Transfer or other rights or entitlements to acquire Company Common
Stock or in any other way.
(b) "
Affiliate " shall mean, with respect to any specified
Person, any Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Person specified.
(c) "
beneficially owned " or " beneficial ownership " with
respect to any securities shall mean having "beneficial ownership"
of such securities (as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the " Exchange
Act ")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
(d) "
Covered Shares " shall mean Existing Shares and Additional
Shares.
(e) "
Transfer " shall mean, with respect to any security, the
direct or indirect sale, transfer, pledge, hypothecation,
encumbrance, assignment, gift or disposition of such security or
the
record or beneficial ownership thereof, the offer to make such a
sale, transfer, or other disposition, and each agreement,
arrangement or understanding, whether or not in writing, to effect
any of the foregoing. As a verb, "Transfer" shall have a
correlative meaning.
(f) Capitalized
terms used and not defined herein, but defined in the Merger
Agreement, shall have the respective meanings ascribed to them in
the Merger Agreement.
2.
VOTING AGREEMENT . In order to induce Purchaser and PH Sub
to enter into the Merger Agreement, each Stockholder hereby agrees
that, from and after the date hereof until termination of this
Agreement in accordance with Section 7 , such
Stockholder shall, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent
of the stockholders of the Company, appear at each such meeting, in
person or by proxy, or otherwise cause such Stockholder’s
Covered Shares to be counted as present for purposes of
establishing a quorum, and each such Stockholder shall vote (or
cause to be voted) or act by written consent with respect to all of
its Covered Shares that are beneficially owned by each such
Stockholder or its affiliates or as to which such Stockholder has,
directly or indirectly, the right to vote or direct the voting of
the Covered Shares (i) in favor of adopting the Merger
Agreement, including the agreement of merger contained therein, the
execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof,
(ii) against any proposal relating to an Acquisition Proposal
and (iii) against any proposal, action or agreement that would
impede, frustrate, prevent or nullify this Agreement or the Merger
Agreement, or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement or which would result in any
of the conditions set forth in the Merger Agreement not being
fulfilled.
3.
ADDITIONAL AGREEMENTS .
(a)
No Disposition . Each Stockholder hereby covenants and
agrees that, except as contemplated by this Agreement and the
Merger Agreement, the Stockholder shall not (i) offer to
Transfer, Transfer or consent to any Transfer of, any or all of the
Covered Shares or any interest therein without the prior written
consent of Purchaser, (ii) enter into any contract, option or
other agreement or understanding with respect to any Transfer of
any or all Covered Shares or any interest therein, (iii) grant
any proxy, power-of-attorney or other authorization or consent in
or with respect to the Covered Shares, (iv) deposit any or all
of the Covered Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any or all of the Covered
Shares or (v) take any other action that would make any
representation or warranty of such Stockholder contained herein
untrue or incorrect in any material respect or in any way restrict,
limit or interfere in any material respect with the performance of
such Stockholder’s obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement. Notwithstanding
anything in this Agreement to the contrary, a Stockholder may
transfer any or all of his or its Covered Shares as follows:
(i) in the case of a Stockholder that is an entity, to any
subsidiary, partner, member, shareholder, former partner or
Affiliate of Stockholder, and (ii) in the case of an
individual Stockholder, to Stockholder’s spouse, ancestors,
descendants or any trust for any of other benefits or to a
charitable trust; provided , however , that in any
such case, prior to and as a condition to the effectiveness of such
transfer, each person or trust to which any of such Covered Shares
or any interest in any of such Covered Shares is or may be
transferred (A) shall have executed and delivered to Purchaser
a counterpart to this Agreement pursuant to which such person or
trust shall be bound by all of the terms and provisions of this
Agreement, and (B) shall have agreed in writing with Purchaser
to hold such Covered Shares or interest in such Covered Shares
subject to all of the terms and provisions of this Agreement, and
(C) this Agreement shall be the legal, valid and binding
agreement of such person or trust, enforceable in accordance with
its terms.
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(b)
Grant of Irrevocable Proxy . Each Stockholder hereby
irrevocably grants to, and appoints, Purchaser and any designee of
Purchaser, and each of them individually, such Stockholder’s
proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Stockholder, to vote all
of the Covered Shares or grant a consent or approval in respect of
the Covered Shares, in the manner specified in
Section 2 . Each Stockholder represents that any
proxies heretofore given in respect of the Covered Shares are not
irrevocable and that any such proxies are hereby revoked. Each
Stockholder hereby affirms that the irrevocable proxy set forth in
this Section 3(b) is given in connection with the
execution of the Merger Agreement and that such irrevocable proxy
is given to secure the performance of the duties of such
Stockholder under this Agreement. Each Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and
may under no circumstances be revoked. Each Stockholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully
do or cause to be done by virtue hereof. Without limiting the
generality of the foregoing, such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of
Section 212 of the Delaware General Corporation Law. If for
any reason the proxy granted herein is not irrevocable, the
Stockholders agree to vote their Covered Shares as instructed by
Purchaser in writing.
(c)
Non-Solicitation . Each Stockholder hereby agrees that
neither such Stockholder nor any of such Stockholder’s
Affiliates, representatives or agents shall (and, if such
Stockholder is a corporation, partnership, trust or other entity,
such Stockholder shall cause its officers, directors, partners, and
employees, representatives and agents, including its investment
bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, initiate or participate in any way
in any discussions or negotiations with, or provide any information
to, or afford any access to the properties, books or records of the
Company or any of its Subsidiaries, or otherwise take any other
action to assist or facilitate, any Person or group (other than
Purchaser or PH Sub or any Affiliate or associate of Purchaser or
PH Sub) concerning any Acquisition Proposal. Each Stockholder will
immediately cease any existing activities, discussions or
negotiations conducted heretofore with respect to any Acquisition
Proposal. Each Stockholder will immediately communicate to
Purchaser the terms of any Acquisition Proposal (or any discussion,
negotiation or inquiry with respect thereto) and the identity of
the Person making such Acquisition Proposal or inquiry which it may
receive.
(d)
Reasonable Efforts . Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use all
reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or
advisable under applicable laws to bring about the actions required
by this Agreement and to avoid the actions prohibited by this
Agreement. At the other party’s reasonable request and
without further consideration, each party shall execute and deliver
such additional documents and take all such further lawful action
as may be necessary or desirable to bring about the actions
required by this Agreement and to avoid the actions prohibited by
this Agreement.
(e)
Certain Events . In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change
in the capital structure of the Company affecting the Company
Common Stock or the acquisition of any Additional Shares or other
securities or rights of the Company by any Stockholder, the number
of Covered Shares owned by such Stockholder shall be adjusted
appropriately, and this Agreement and the obligations hereunder
shall attach to any Additional Shares or other securities or rights
of the Company issued to or acquired by each of the Stockholder.
(f)
Waiver of Appraisal and Dissent Rights . Each Stockholder
hereby waives any rights of appraisal or rights to dissent from the
Merger that such Stockholder may have.
(g)
Publication and Disclosure . Each Stockholder hereby permits
publication in the Proxy Statement (including all documents and
schedules filed with the SEC), such Stockholder’s identity
and ownership of the Covered Shares and the nature of such
Stockholder’s commitments, arrangements
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and understandings under this Agreement; provided that such
Stockholder shall be permitted to review and comment on such
disclosure a reasonable time before it is publicly disclosed.
4.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS . Each
Stockholder hereby represents and warrants, severally and not
jointly, to Purchaser as follows:
(a)
Title . Such Stockholder is the sole record and beneficial
owner of the number of Existing Shares set forth opposite such
Stockholder’s name on Schedule I . The Existing
Shares constitute all of the capital stock of the Company owned of
record or beneficially owned by such Stockholder on the date
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