EXHIBIT 2.2
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT dated as of June 2, 2000 (the "Agreement") is
entered into by and between _______________ ("SECURITYHOLDER") and MAXIM
PHARMACEUTICALS, INC., a Delaware corporation ("PARENT"). Capitalized terms used
and not otherwise defined herein shall have the meanings given to such terms in
the Merger Agreement.
RECITALS
A. Pursuant to an Agreement and Plan of Merger and Reorganization dated
as of June 2, 2000 (the "MERGER AGREEMENT"), Parent, Parent Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent
("MERGER SUB") and CYTOVIA, Inc., a Delaware corporation ("COMPANY"), Parent
will acquire Company by way of a reverse triangular merger whereby Merger Sub
will merge with and into Company (the "MERGER") and Company will become a wholly
owned subsidiary of Parent.
B. Securityholder is the holder of shares of Company Common Stock,
Company Preferred Stock, options and/or warrants to purchase shares of Company
Common Stock, in each case as set forth on the signature page hereof
(collectively, the "COMPANY SECURITIES").
C. In connection with and as a result of the Merger, Securityholder
will receive shares of Parent Common Stock, options and/or a warrant to purchase
shares of Parent Common Stock ("MERGER SECURITIES") in exchange for or upon
exercise of the Company Securities.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto agree as follows:
1. RESTRICTIONS ON DISPOSITION. As an inducement to and in
consideration of Parent's agreement to enter into the Merger Agreement and
proceed with the Merger, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Securityholder hereby
agrees, except as permitted by Section 3 below, not to, directly or indirectly,
sell, offer to sell, contract to sell, transfer, assign, grant an option to
purchase, cause to be redeemed or otherwise dispose of ("TRANSFER") any of the
Merger Securities received by Securityholder in the Merger for a one-year period
commencing on the Closing Date and ending on the first anniversary thereof (the
"LOCK-UP PERIOD"). Securityholder hereby agrees and consents to the entry of
stop transfer instructions with Parent's transfer agent against the transfer of
the Merger Securities except in compliance with this Agreement. Securityholder
may pledge, hypothecate or otherwise grant a security interest in all or a
portion of the Merger Securities during the term of this Agreement; PROVIDED,
HOWEVER, that any person or entity receiving such securities in pledge or
hypothecation or granted a security interest in such securities, shall be
subject to all of the restrictions on Transfer of such securities imposed by
this Agreement to the same extent as Securityholder.
1.
2. EXPIRATION OF LOCK-UP PERIOD. Immediately following the end of the
Lock-Up Period, all restrictions on Transfer imposed hereunder shall expire and
shall not apply to any of the Merger Securities.
3. PERMITTED TRANSFERS.
(a) At any time on or after the 90th day immediately following the
Closing Date, Securityholder may Transfer shares of Parent Common Stock in an
amount not to exceed 25% of the Total Securities. As used herein, "TOTAL
SECURITIES" shall mean the total number of shares of Parent Common Stock and
options received by Securityholder in the Merger and/or shares of Parent Common
Stock issuable upon exercise of warrants received by Securityholder in the
Merger.
(b) At any time on or after the 180th day immediately following the
Closing Date, Securityholder may Transfer shares of Parent Common Stock in an
amount, together with all Transfers pursuant to subsection (a) above, not to
exceed 50% of the Total Securities.
(c) At any time on or after the 270th day immediately following the
Closing Date, Securityholder may Transfer shares of Parent Common Stock in an
amount, together with all Transfers pursuant to subsections (a) and (b) above,
not to exceed 75% of the Total Securities.
(d) None of the restrictions on Transfers contained herein shall
apply to (i) a bona fide gift or gifts, (ii) transfers to family members of
Securityholder, or (iii) transfers permitted by Section 9.3 of the Merger
Agreement, provided the donee, donees or transferees in each of (i), (ii) or
(iii) agree to be bound by the restrictions on Transfer contained in this
Agreement.
(e) Notwithstanding the provisions of this Section 3, Securityholder
may not Transfer under this Section 3 any Merger Securities that, at the time of
the proposed Transfer, are then subject to any right of repurchase in favor of
Parent.
4. SPECIAL PERMITTED TRANSFERS. At any time prior to the expiration of
the Lock-Up Period, Securityholder may send written notice to Parent indicating
that Securityholder desires to Transfer shares of Parent Common Stock in an
amount which would not otherwise be permitted under Sections 1, 2 and 3 of this
Agreement. Parent agrees to consider such requests in good faith and to make a
determination, in its sole reasonable judgment, whether to approve such requests
after consideration of all factors deemed by Parent to be relevant, including,
without limitation, the potential effects that such Transfer may have on the
market conditions relating to the Parent Common Stock.
5. MISCELLANEOUS.
(a) EXPIRATION OF AGREEMENT. This Agreement shall expire and be of
no further force or effect upon expiration of the Lock-Up Period.
2.
(b) GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the laws of the State of California,
without giving effect to principles of conflicts of laws.
(c) AMENDMENTS. This Agreement may not be amended, modified, altered
or supplemented other than by means of a written instrument duly executed and
delivered on behalf of the parties hereto.
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3.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement in the day first set forth above.
SECURITYHOLDER:
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[NAME]
MAXIM PHARMACEUTICALS, INC.
By:
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Name:
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Title:
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[SIGNATURE PAGE TO LOCK-UP AGREEMENT]
