EXHIBIT B
LOCK-UP AGREEMENT
(Diversa Stockholders)
THIS LOCK-UP AGREEMENT dated as of February 12, 2007 (this "Agreement")
is entered into by and between the undersigned stockholder ("Stockholder") and
DIVERSA CORPORATION, a Delaware corporation ("Parent"). Capitalized terms
used and not otherwise defined herein shall have the meanings given to such
terms in the Merger Agreement (as defined herein).
RECITALS
WHEREAS, Stockholder is a stockholder of Parent;
WHEREAS, Parent, Celunol Corp., a Delaware corporation (the "Company"),
Concord Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary
of Parent and the Company Stockholders' Representative have entered into an
Agreement and Plan of Merger and Reorganization dated as of February ___, 2007
(the "Merger Agreement"), providing for the merger of Merger Sub with and into
the Company, with the Company being the surviving corporation (the "Merger");
WHEREAS, in order to induce the Company to execute the Merger Agreement,
Stockholder has agreed to execute this Agreement;
WHEREAS, Stockholder may own shares of Parent Common Stock and/or Parent
warrants and/or Parent options or other securities convertible into or
exchangeable or exercisable for Parent Common Stock upon the consummation of
the Merger (collectively, the "Parent Shares"); and
WHEREAS, Stockholder agrees that the Parent Shares held by the
Stockholder upon the consummation of the Merger will be subject to certain
restrictions on Disposition (as defined herein) as more fully set forth
herein.
AGREEMENT
NOW, THEREFORE, as an inducement to and in consideration of the
Company'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, Stockholder hereby agrees as
follows:
1. Lock Up Period. For a period beginning on the Closing Date and
ending on the earlier of (a) 180 days after the Closing Date or (b) December
1, 2007 (the "Lock-Up Period"), Stockholder will not, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, make any short sale or otherwise dispose of or
transfer any Parent Shares, whether now owned or hereafter acquired by
Stockholder or with respect to which Stockholder has or hereafter acquires the
power of disposition or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of any Parent Shares, whether any such swap
or transaction is to be settled by delivery of Parent Common Stock or other
securities, in cash or otherwise (each of the above actions referred to herein
as a "Disposition"). The foregoing restriction is expressly intended to
preclude Stockholder from engaging in any hedging or other transaction which
is designed to or which reasonably could be expected to lead to or result in a
sale or disposition of any of Stockholder's Parent Shares even if such
securities would be disposed of by someone other than Stockholder. Such
prohibited hedging or other transaction would include without limitation any
short sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of Stockholder's Parent
Shares or with respect to any security that includes, relates to, or derives
any significant part of its value from such Parent Shares.
2. Permitted Dispositions. Notwithstanding the restrictions on
Dispositions contained in Section 1, Stockholder may (a) exercise options and
warrants owned by Stockholder as of the date of the Merger Agreement that are
exercisable for Parent Shares, it being understood and acknowledged that the
Parent Shares acquired by Stockholder in connection with any such exercise
shall be subject to this Agreement; (b) effect a Disposition with the prior
written consent of Parent; (c) enter into a plan adopted pursuant to Rule
10b5-1 under the Securities Exchange Act of 1934, as amended, to the extent
that such plan does not provide for the Disposition of any of Stockholder's
Parent Shares during the Lock-Up Period; or (d) effect a Disposition (i)
pursuant to a bona fide gift or gifts, or (ii) by will or intestacy or to a
trust, the beneficiaries of which are Stockholder or, if Stockholder is an
individual, members of Stockholder's family, or (iii) as a distribution to
limited partners, members or shareholders of Stockholder or affiliates of
Stockholder, provided that in each case of clauses "(i)" through "(iii)", such
gift, transfer or distribution shall be conditioned upon the donee's,
transferee's or distributee's execution and delivery to Parent of a Lock-Up
Agreement containing terms and conditions substantially identical to the terms
and conditions contained herein.
3. Legends.
(a) In addition to any legends to reflect applicable transfer
restrictions under federal or state securities laws, each stock certificate
representing Parent Shares which Stockholder receives or is entitled to
receive shall be stamped or otherwise imprinted with the following legend:
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A LOCK-UP AGREEMENT DATED FEBRUARY ___, 2007 BETWEEN
THE HOLDER HEREOF AND THE ISSUER AND MAY ONLY BE SOLD OR
TRANSFERRED IN ACCORDANCE WITH THE TERMS THEREOF."
(b) Parent shall be obligated to reissue certificates at the request of
Stockholder without the foregoing legend as and to the extent the restrictions
on Disposition lapse in accordance with Section 1.
(c) Stockholder hereby agrees and consents to the entry of stop transfer
instructions with Parent's transfer agent against the transfer of the Parent
Shares in compliance with this Agreement.
4. Additional Lock-Up Parties; Release. Notwithstanding any provision
in this letter to the contrary, this letter and the agreements set forth
herein shall be void and have no further force or effect unless each of Xxxxxx
Xxxx, Xxxx XxXxxxxx, Braemar Energy Ventures LP, Xxxxxxx River Partnership
XII, LP, CRV XII Affiliates Fund, LP, Rho Ventures IV (QP) LP, Rho Ventures IV
GmbH & Co. Beteiligungs KG, Rho Ventures IV, LP, Rho Management Trust I and
Xxxxxx Ventures I, L.P., shall also have agreed to, and remain subject to,
the terms of a lock-up agreement with Parent at least as restrictive as the
provisions of this Agreement (each a "Lock-up Party"). Additionally, to the
extent that any Lock-up Party is released from any provision of such Lock-Up
Party's agreement, then Stockholder shall also be released from the provisions
of this Agreement. Parent shall give prompt written notice to Stockholder of
any such release of a Lock-Up Party or the waiver or termination of the
provisions of such Lock-Up Party's agreement.
5. Miscellaneous.
(a) Specific Performance. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any covenant, obligation or
other provision contained in this Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to Parent) to seek: (a) a
decree or order of specific performance or mandamus to enforce the observance
and performance of such covenant, obligation or other provision; and (b) an
injunction restraining such breach or threatened breach. Stockholder further
agrees that neither Parent nor any other person or entity shall be required to
obtain, furnish or post any bond or similar instrument in connection with or
as a condition to obtaining any remedy referred to in this Section 5, and
Stockholder irrevocably waives any right he, she or it may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
(b) Other Agreements. Nothing in this Agreement shall limit any of the
rights or remedies of Parent under the Merger Agreement, or any of the rights
or remedies of Parent or any of the obligations of Stockholder under any
agreement between Stockholder and Parent or any certificate or instrument
executed by Stockholder in favor of Parent; and nothing in the Merger
Agreement or in any other agreement, certificate or instrument shall limit any
of the rights or remedies of Parent or any of the obligations of Stockholder
under this Agreement.
(c) Notices. Any notice or other communication required or permitted to
be delivered to Stockholder or Parent under this Agreement shall be in writing
and shall be deemed properly delivered, given and received when delivered (i)
for Parent, to the address or facsimile telephone number set forth below, and
(ii) for Stockholder, to the address or facsimile telephone number set forth
beneath the Stockholder's signature to this Agreement (or to such other
address or facsimile telephone number as such party shall have specified in a
written notice given to the other party):
if to Parent:
Diversa Corporation
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(d) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid
or unenforceable, the parties hereto agree that the court making such
determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or
provision with a term or provision that is valid and enforceable and that
comes closest to expressing the intention of the invalid or unenforceable term
or provision, and this Agreement shall be enforceable as so modified. In the
event such court does not exercise the power granted to it in the prior
sentence, the parties hereto agree to replace such invalid or unenforceable
term or provision with a valid and enforceable term or provision that will
achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable term.
(e) Applicable Law; Jurisdiction. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(i) Any legal action or other legal proceeding relating to this
Agreement or the enforcement of any provision of this Agreement shall be
brought or otherwise commenced in any state or federal court located in the
State of Delaware. Each of Stockholder and Parent:
(1) expressly and irrevocably consents and submits to the jurisdiction
of each state and federal court located in the State of Delaware in connection
with any such legal proceeding;
(2) agrees that service of any process, summons, notice or document by
U.S. mail addressed to him or it at the address set forth on the signature
page hereof shall constitute effective service of such process, summons,
notice or document for purposes of any such legal proceeding;
(3) agrees that each state and federal court located in the State of
Delaware shall be deemed to be a convenient forum; and
(4) agrees not to assert (by way of motion, as a defense or otherwise),
in any such legal proceeding commenced in any state or federal court located
in the State of Delaware, any claim by Parent or Stockholder that it is not
subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the venue of such
proceeding is improper or that this Agreement or the subject matter of this
Agreement may not be enforced in or by such court.
(ii) EACH OF PARENT AND STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT
TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
(f) Waiver; Termination. No failure on the part of Parent to exercise
any power, right, privilege or remedy under this Agreement, and no delay on
the part of Parent in exercising any power, right, privilege or remedy under
this Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. Parent shall not be deemed to have waived
any claim arising out of this Agreement, or any power, right, privilege or
remedy under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of Parent; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given. If the Merger Agreement is terminated, this Agreement shall thereupon
terminate.
(g) Captions. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
(h) Further Assurances. Stockholder shall execute and/or cause to be
delivered to Parent such instruments and other documents and shall take such
other actions as Parent may reasonably request to effectuate the intent and
purposes of this Agreement.
(i) Entire Agreement. This Agreement sets forth the entire
understanding of Parent and Stockholder relating to the subject matter hereof
and supersede all other prior agreements and understandings between Parent and
Stockholder relating to the subject matter hereof and thereof.
(j) Non-Exclusivity. The rights and remedies of Parent hereunder are
not exclusive of or limited by any other rights or remedies which Parent may
have, whether at law, in equity, by contract or otherwise, all of which shall
be cumulative (and not alternative). Without limiting the generality of the
foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in
addition to their respective rights, remedies, obligations and liabilities
under common law requirements and under all applicable statutes, rules and
regulations. Nothing in this Agreement shall limit Stockholder's obligations,
or the rights or remedies of Parent, under any other agreement between Parent
and Stockholder; and nothing in any such other agreement shall limit
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Agreement.
(k) 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 Parent and Stockholder.
(l) Assignment. This Agreement and all obligations of Stockholder
hereunder are personal to Stockholder and may not be transferred or delegated
by Stockholder at any time. Parent may freely assign any or all of its rights
under this Agreement, in whole or in part, to any other person or entity
without obtaining the consent or approval of Stockholder.
(m) Binding Nature. Subject to Section 5(l), this Agreement will inure
to the benefit of Parent and its successors and assigns and will be binding
upon Stockholder and Stockholder's representatives, executors, administrators,
estate, heirs, successors and assigns.
(n) Survival. Each of the representations, warranties, covenants and
obligations contained in this Agreement shall survive the consummation of the
Merger.
(o) Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original and both of which
shall constitute one and the same instrument.
(p) Fiduciary Duties. Stockholder is signing this Agreement in
Stockholder's capacity as an owner of his, her or its Parent Shares, and
nothing herein shall prohibit, prevent or preclude Stockholder from taking or
not taking any action in his or her capacity as an officer or director of the
Company, to the extent permitted by the Merger Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
DIVERSA CORPORATION
By:
Name:
Title:
STOCKHOLDER
By:
Name:
Title:
Address:
Attn:
Fax: (___)
