Exhibit
10.1
D
IVERSA
C
ORPORATION
$100,000,000 Principal
Amount
5.50% Convertible Senior Notes due
2027
P URCHASE A GREEMENT
March 22, 2007
P URCHASE A GREEMENT
March 22, 2007
UBS Securities LLC
Jefferies & Company, Inc.
Canaccord Adams Inc.
Cantor Fitzgerald & Co.
as Initial
Purchasers
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Diversa Corporation, a Delaware
corporation (the “ Company ”), proposes to issue
and sell to the initial purchasers named in Schedule A
annexed hereto (the “ Initial Purchasers ”)
$100,000,000 aggregate principal amount of its 5.50% Convertible
Senior Notes due 2027 (the “ Firm Notes ”). In
addition, solely for the purpose of covering over-allotments, the
Company proposes to grant to the Initial Purchasers the option to
purchase from the Company up to an additional $20,000,000 aggregate
principal amount of the Company’s 5.50% Convertible Senior
Notes due 2027 (the “ Additional Notes ”). The
Firm Notes and the Additional Notes are hereinafter collectively
sometimes referred to as the “ Notes
.”
The Notes are to be issued pursuant
to an indenture (the “ Indenture ”) to be dated
as of March 28, 2007, between the Company and Wells Fargo
Bank, N.A., as trustee (the “ Trustee ”). The
Notes will be convertible in accordance with their terms and the
terms of the Indenture into shares of the common stock (the “
Common Stock ”) of the Company, $0.001 par value per
share (the “ Shares ”).
The Notes and the Shares will be
offered without being registered under the Securities Act of 1933,
as amended (the “ Act ”), to “qualified
institutional buyers” in compliance with the exemption from
registration provided by Rule 144A under the Act (“ Rule
144A ”).
The Initial Purchasers and their
direct and indirect transferees will be entitled to the benefits of
a Registration Rights Agreement to be entered into at or prior to
the “time of purchase” (as defined herein) between the
Company and the Initial Purchasers (the “ Registration
Rights Agreement ”).
The Company has furnished to you,
for use by you in connection with the offering of the Notes, copies
of a preliminary offering memorandum (the “ Preliminary
Memorandum ”), and the Company will, on or before the
second business day after the date hereof, prepare and furnish to
you, for use by you in connection with the offering of the Notes, a
final offering memorandum (the “ Final Memorandum
” and, with the Preliminary Memorandum, each a “
Memorandum ”), each of which Memoranda includes or
will include, among other things, a description of the terms of the
Notes and the Shares, the terms of the offering and a description
of the Company. Any reference herein to the Preliminary Memorandum,
Final Memorandum or
Memorandum shall be deemed to refer to and
include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “
Incorporated Documents ”), including, unless the
context otherwise requires, the documents, if any, filed as
exhibits to such Incorporated Documents. Any reference herein to
the terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
any Memorandum shall be deemed to refer to and include the filing
with the Securities and Exchange Commission (the “
Commission ”) of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the “ Exchange Act ”)
on or after the date of such Memorandum and deemed to be
incorporated therein by reference.
As used in this Agreement, “
business day ” shall mean a day on which the New York
Stock Exchange (the “ NYSE ”) is open for
trading. The terms “herein,” “hereof,”
“hereto,” “hereinafter” and similar terms,
as used in this Agreement, shall in each case refer to this
Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term
“or,” as used herein, is not exclusive.
The Company and the Initial
Purchaser agree as follows:
1. Sale and Purchase . Upon
the basis of the warranties and representations and subject to the
other terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Initial Purchasers and each of the
Initial Purchasers, severally and not jointly, agrees to purchase
from the Company the aggregate principal amount of Firm Notes set
forth opposite the name of such Initial Purchaser in Schedule
A attached hereto, subject to adjustment in accordance with
Section 9 hereof, in each case at a purchase price of 96.6% of
the principal amount thereof.
In addition, the Company hereby
grants to the several Initial Purchasers the option (the “
Over-Allotment Option ”) to purchase, and upon the
basis of the representations and warranties and subject to the
terms and conditions herein set forth, the Initial Purchasers shall
have the right to purchase, severally and not jointly, from the
Company, ratably in accordance with the aggregate principal amount
of Firm Notes to be purchased by each of them, all or a portion of
the Additional Notes as may be necessary to cover over-allotments
made in connection with the offering of the Firm Notes, at a
purchase price of 96.6% of the principal amount thereof. The
Over-Allotment Option may be exercised by UBS Securities LLC
(“ UBS ”) on behalf of the several Initial
Purchasers at any time and from time to time on or before the
thirtieth day following the date hereof by written notice to the
Company. Such notice shall set forth the aggregate principal amount
of Additional Notes as to which the Over-Allotment Option is being
exercised and the date and time when the Additional Notes are to be
delivered (any such date and time being herein referred to as an
“ additional time of purchase ”);
provided , however , that no additional time of
purchase shall be earlier than the “time of purchase”
(as defined below) nor earlier than the second business day after
the date on which the Over-Allotment Option shall have been
exercised nor later than the tenth business day after the date on
which the Over-Allotment Option shall have been exercised. The
principal amount of Additional Notes to be sold to each Initial
Purchaser shall be the principal amount which bears the same
proportion to the aggregate principal amount of Additional Notes
being purchased as the principal amount of Firm Notes set forth
opposite the name of such Initial Purchaser on Schedule A
hereto bears to the aggregate principal amount of Firm Notes,
subject to adjustment in accordance with Section 9
hereof.
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2. Payment and Delivery .
Payment of the purchase price for the Firm Notes shall be made to
the Company by Federal Funds wire transfer, against delivery of the
Firm Notes to you through the facilities of The Depository Trust
Company (“ DTC ”) for the respective accounts of
the Initial Purchasers. Such payment and delivery shall be made at
10:00 A.M., New York City time, on March 28, 2007 (unless
another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 9
hereof). The time at which such payment and delivery are to be made
is hereinafter sometimes called the “ time of purchase
.” Electronic transfer of the Firm Notes shall be made to you
at the time of purchase in such names and in such denominations as
you shall specify.
Payment of the purchase price for
the Additional Notes shall be made at the additional time of
purchase in the same manner and at the same office and time of day
as the payment for the Firm Notes. Electronic transfer of the
Additional Notes shall be made to you at the additional time of
purchase in such names and in such denominations as you shall
specify.
For the purpose of expediting the
checking of the certificates for the Notes by you, the Company
agrees to make such certificates (or a true copy thereof) available
to you for such purpose at least one full business day preceding
the time of purchase or the additional time of purchase, as the
case may be.
Deliveries of the documents
described in Section 7 hereof with respect to the purchase of
the Notes shall be made at the offices of Dewey Ballantine LLP at
1301 Avenue of the Americas, New York, NY 10019-6092, at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of
the Firm Notes or the Additional Notes, as the case may
be.
3. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Initial Purchasers that:
(a) at no time during the period
that begins on the date of the Preliminary Memorandum and ends at
the time of purchase did or will the Preliminary Memorandum, as
then amended or supplemented, include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; at no time during the
period that begins on the date of the Final Memorandum and ends at
the later of the time of purchase, the latest additional time of
purchase, if any, and the last time at which the Final Memorandum,
as then amended or supplemented, is delivered in connection with an
initial resale of any Notes by any Initial Purchaser will the Final
Memorandum, as then amended or supplemented, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that the Company makes no
representation or warranty in this Section 3(a) with respect
to any statement contained in either Memorandum in reliance upon
and in conformity with information concerning an Initial Purchaser
and furnished in writing by or on behalf of
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such Initial Purchaser through UBS
to the Company expressly for use in such Memorandum; each
Incorporated Document, at the time such document was filed, or will
be filed, with the Commission or at the time such document became
or becomes effective, as applicable, complied or will comply, in
all material respects, with the requirements of the Exchange Act
and did not or will not, as applicable, include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(b) prior to the execution of this
Agreement, the Company has not, directly or indirectly, offered or
sold any Notes by means of, or used, in connection with the offer
or sale of the Notes, any material or communication that would,
assuming the Notes were to be offered publicly, constitute a
“prospectus” (within the meaning of the Act), in each
case other than the Preliminary Memorandum;
(c) the Company satisfies
(A) all conditions for the use of a registration statement on
Form S-3 under the Act, including without limitation, (i) the
registrant requirements of General Instruction I.A of Form S-3
under the Act and the transaction requirements of General
Instructions I.B.1 of Form S-3 under the Act and (ii) to
register the Notes, and the Shares issuable upon conversion of the
Notes, for resale in the manner contemplated by the Preliminary
Memorandum, the Final Memorandum and the Registration Rights
Agreement; and (B) the conditions set forth in Rules
415(a)(1)(i) and 430B(b) under the Act;
(d) as of the dates indicated
therein, the Company has an authorized and outstanding
capitalization as set forth in the section of the Preliminary
Memorandum and the Final Memorandum entitled
“Capitalization”; subject to the issuance of shares of
Common Stock upon exercise of stock options and warrants disclosed
as outstanding in the Preliminary Memorandum and the Final
Memorandum and the grant of options under existing stock option
plans described in the Preliminary Memorandum and the Final
Memorandum, the Company has, as of the date of this Agreement, and
the Company shall have, as of the time of purchase and each
additional time of purchase, if any, an authorized and outstanding
capitalization as set forth in the section of the Preliminary
Memorandum and the Final Memorandum entitled
“Capitalization”; all of the issued and outstanding
shares of capital stock, including the Common Stock, of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; upon
issuance, the Shares will be duly listed, and admitted and
authorized for trading, on the “Nasdaq Global Market”
(the “ NASDAQ ”);
(e) the Company has been duly
incorporated under the laws of the State of Delaware and has full
corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Preliminary
Memorandum and the Final Memorandum, to execute and deliver this
Agreement, the Indenture, the Registration Rights Agreement and the
Notes and to issue, sell and deliver the Notes and
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the Shares issuable upon conversion
of the Notes as contemplated by this Agreement, the Indenture, the
Registration Rights Agreement and the Notes; upon the filing, by
the Company with the Secretary of State of the State of Delaware,
of an affidavit certifying the accuracy of the information
furnished on the Company’s Delaware 2006 Annual Franchise Tax
Report, including the Company’s total gross asset amount as
of December 31, 2006, and any related minor ministerial
filings with the Secretary of State of the State of Delaware (such
affidavit and related filings, the “ Good Standing
Filings ”), the Company shall be validly existing as a
corporation in good standing under the laws of the State of
Delaware;
(f) the Company is duly qualified to
do business as a foreign corporation and is in good standing in
each jurisdiction where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, either (i) have a
material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and
the Subsidiaries (as defined below) taken as a whole,
(ii) prevent or materially interfere with consummation of the
transactions contemplated by this Agreement, the Indenture, the
Registration Rights Agreement or the Notes or (iii) result in
the delisting of shares of Common Stock from the NASDAQ (the
occurrence of any such effect or any such prevention or
interference or any such result described in the foregoing clauses
(i), (ii) or (iii) being herein referred to as a “
Material Adverse Effect ”);
(g) the Company has no subsidiaries
(as defined under the Act) other than Innovase LLC, TNEWCO Inc. and
Concord Merger Sub, Inc. (collectively, the “
Subsidiaries ”); the Company owns all of the issued
and outstanding capital stock of each of the Subsidiaries; other
than the capital stock of the Subsidiaries, the Company does not
own, directly or indirectly, any shares of stock or any other
equity interests or long-term debt securities of any corporation,
firm, partnership, joint venture, association or other entity;
complete and correct copies of the charter and the bylaws of the
Company and all amendments thereto have been delivered to you, and
no changes therein will be made on or after the date hereof through
and including the time of purchase or, if later, any additional
time of purchase; each Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with full corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Preliminary Memorandum and
the Final Memorandum; each Subsidiary is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable, have been issued in compliance with
all applicable securities laws, were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right and are owned by the Company subject to no security interest,
other encumbrance or adverse claims; and no options, warrants or
other rights to purchase, agreements or
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other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the Subsidiaries are outstanding; none of
the Subsidiaries owns or possesses any property or assets, or has
any obligations or liabilities, or possess any rights (by contract,
franchise, permit or otherwise) or engages in any operations that
are, individually or in the aggregate, material to the business,
properties, financial condition, results of operations or prospects
of the Company and the Subsidiaries taken as a whole;
(h) this Agreement has been duly
authorized, executed and delivered by the Company;
(i) the Indenture has been duly
authorized by the Company and, when executed and delivered by the
Company and the Trustee, will be a legal, valid and binding
agreement of the Company, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and general principles of
equity;
(j) the Registration Rights
Agreement has been duly authorized by the Company and, when
executed and delivered by the Company and the Initial Purchasers,
will be a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and general principles of
equity;
(k) the Notes have been duly
authorized by the Company and, when executed and delivered by the
Company and duly authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers
in accordance with the terms hereof, will constitute legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors’ rights generally and
general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement; the Shares
issuable upon conversion of the Notes have been duly authorized and
validly reserved for issuance upon conversion of the Notes, and,
upon conversion of the Notes in accordance with their terms and the
terms of the Indenture, will be issued free of statutory and
contractual preemptive rights, resale rights, rights of first
refusal and similar rights and free of any voting restrictions (and
will be free of any restriction, pursuant to the Company’s
charter or bylaws or any agreement or other instrument to which the
Company is a party, upon the transfer thereof), and are sufficient
in number to meet the current conversion requirements (assuming all
conditions to such conversion have been satisfied) based on the sum
of the Conversion Rate (as defined in the Indenture) in effect as
of the time of purchase and as of each additional time of purchase
and the maximum number of additional shares identified in the table
under the caption “Description of notes—Adjustment to
the conversion rate upon the occurrence of a make-whole fundamental
change—The increase in the conversion rate” in the
Final Memorandum”; such Shares, when so issued upon such
conversion in accordance with the terms of the Notes and of the
Indenture, will be duly and validly issued and fully paid and
nonassessable; and the certificates for such Shares will be in due
and proper form;
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(l) the terms of the Notes, the
Registration Rights Agreement, the Indenture and the capital stock
of the Company, including the Shares, conform in all material
respects to each description thereof contained in the Preliminary
Memorandum and the Final Memorandum;
(m) when the Notes are issued
pursuant to this Agreement, the Notes will not be of the same class
(within the meaning of Rule 144A) as securities that are listed on
a national securities exchange registered pursuant to
Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(n) neither the Company nor any
“affiliate” (as defined in Rule 501(b) of Regulation D
under the Act, an “ Affiliate ”) of the Company
has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect
of, any “security” (as defined in the Act), which sale,
offer, solicitation or negotiation is or will be integrated with
the offer or sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) offered,
solicited offers to buy or sold the Notes by any form of
“general solicitation” or “general
advertising” (as those terms are used in Regulation D under
the Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Act;
(o) it is not necessary in
connection with the offer, sale and delivery of the Notes to the
Initial Purchaser pursuant to this Agreement to register the Notes
or the Shares under the Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”); assuming the Initial Purchasers offer
and sell the Notes only to persons whom they, or their agents,
reasonably believe are “qualified institutional buyers”
(“ QIBs ”) within the meaning of Rule 144A, it
is not necessary in connection with the offer, sale and delivery of
the Notes by the Initial Purchasers to such persons in the manner
contemplated by the Preliminary Memorandum and the Final Memorandum
to register the Notes or the Shares under the Act or to qualify the
Indenture under the Trust Indenture Act; it is not necessary to
register under the Act any Shares issued upon conversion of the
Notes in accordance with their terms and the terms of the
Indenture;
(p) neither the Company nor any of
the Subsidiaries is in breach or violation of or in default under
(nor has any event occurred which, with notice, lapse of time or
both, would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness under) (A) its charter or bylaws, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract
or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound or affected, or
(C) any federal, state, local or foreign law, regulation
or
7
rule, or (D) any rule or
regulation of any self-regulatory organization or other
non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NASDAQ), or
(E) any decree, judgment or order applicable to it or any of
its properties, except, in the case of clauses (B), (C) and
(D), for any such breaches, violations or defaults as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(q) the execution, delivery and
performance of this Agreement, the Indenture, the Registration
Rights Agreement and the Notes and the consummation of the
transactions contemplated hereby and thereby, including the
issuance of the Notes and the issuance of the Shares issuable upon
conversion of the Notes, will not conflict with, result in any
breach or violation of or constitute a default under (nor
constitute any event which, with notice, lapse of time or both,
would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness
under) (or result in the creation or imposition of a lien, charge
or encumbrance on any property or assets of the Company or any
Subsidiary pursuant to) (A) the charter or bylaws of the
Company or any of the Subsidiaries, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
respective properties may be bound or affected, or (C) any
federal, state, local or foreign law, regulation or rule, or
(D) any rule or regulation of any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the rules and regulations of the NASDAQ), or
(E) any decree, judgment or order applicable to the Company or
any of the Subsidiaries or any of their respective properties,
except, in the case of clauses (B) and (D), for such breaches,
violations or defaults as would not, individually or in the
aggregate, have a Material Adverse Effect;
(r) no approval, authorization,
consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization
or other non-governmental regulatory authority (including, without
limitation, the NASDAQ), or approval of the stockholders of the
Company, is required in connection with the issuance and sale of
the Notes or the issuance of Shares upon conversion of the Notes or
the consummation of the transactions as contemplated by this
Agreement, the Indenture, the Registration Rights Agreement or the
Notes, other than (i) as may be required under the securities
or blue sky laws of the various jurisdictions in which the Notes
and the Shares are being offered by the Initial Purchasers,
(ii) as may be required by federal securities laws with
respect to the Company’s obligations under the Registration
Rights Agreement, and (iii) as have been made or obtained, or
as will be made or obtained, as required;
(s) the Agreement and Plan of Merger
and Reorganization, made and entered into as of February 12,
2007, by and among Diversa Corporation, Concord Merger Sub, Inc.,
Celunol Corp. and William Lese (the “ Merger Agreement
”) has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms;
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(t) neither the execution or
performance of the Merger Agreement nor the consummation of the
merger contemplated thereby (the “ Merger ”) or
of any other transaction contemplated thereby will directly or
indirectly (with or without notice or lapse of time):
(i) contravene, conflict with or
result in a violation or breach of any of the provisions of the
Company’s certificate of incorporation or bylaws;
(ii) contravene, conflict with or
result in a violation or breach of, or give any governmental body
or other person the right to challenge any of the transactions
contemplated by the Merger Agreement or to exercise any remedy or
obtain any relief under, any legal requirement or any order of any
governmental body to which the Company or any Subsidiary or any of
the assets owned or used by the Company or any Subsidiary is
subject, subject to (A) any required approval by the directors
or stockholders of the Company of the transactions contemplated by
the Merger Agreement pursuant to the Delaware General Corporation
Law or the continued listing standards of NASDAQ; (B) the
filing of a Notification of Listing of Additional Shares with
NASDAQ; (C) the filing, with the Secretary of State of the
State of Delaware, of documents customarily so filed in connection
with transactions of the type contemplated by the Merger Agreement;
(D) the receipt of any necessary approvals required pursuant
to the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in
connection with the Merger; (E) the declaration, by the
Commission, of the effectiveness under the Act of the
Company’s joint proxy statement and registration statement on
Form S-4 (File No. 333-141392); (F) the filing, with the
SEC, of documents or reports as required by the terms of the Merger
Agreement or as customarily so filed in connection with
transactions of the type contemplated by the Merger Agreement
(collectively, the “ Merger Consents and Filings
”);
(iii) subject to obtaining or
making, as applicable, the Merger Consents and Filings, contravene,
conflict with, or result in a violation or breach of, or default
under, any of the terms or requirements of, or give any
governmental body the right to revoke, withdraw, suspend, cancel,
terminate or modify, any governmental authorization that is held by
the Company or any Subsidiary or that otherwise relates to the
business, or any of the material assets owned or used by, the
Company or any Subsidiary, except as would not, individually or in
the aggregate, have a Material Adverse Effect;
(iv) contravene, conflict with, or
result in a violation or breach of, or default under, any provision
of any contract or instrument of the Company or any Subsidiary, or
give any person the right to declare a default or exercise any
remedy under any such contract or instrument, to accelerate the
maturity or performance of any such contract or instrument or to
cancel, terminate or modify any such contract or instrument, except
in each case as would not, individually or in the aggregate, have a
Material Adverse Effect;
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(v) result in the imposition or
creation of any lien or other encumbrance upon or with respect to
any asset owned or used by the Company or any Subsidiary (except
for minor liens that will not, individually or in the aggregate,
materially detract from the value of the assets subject thereto or
materially impair the operations of the Company or any Subsidiary);
or
(vi) except for the Merger Consents
and Filings, and except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor
any Subsidiary will, or will be required to, make any filing with
or give any notice to, or obtain any consent from, any person in
connection with the execution, delivery or performance of the
Merger Agreement or the consummation of the Merger or any of the
other transactions contemplated by the Merger Agreement, except for
filings, consents and notices that, if not made or obtained, would
not impair or reasonably be expected to impair in any material
respect the ability of the parties to the Merger Agreement to
consummate the transactions contemplated thereby.
(u) to the Company’s
knowledge, the representations and warranties of Celunol Corp. in
the Merger Agreement (as qualified by the related disclosure
schedules) were true and correct as of the date given and are true
and correct as of the date of this Agreement, except as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(v) except as described in the
Preliminary Memorandum and the Final Memorandum, (i) no person
has the right, contractual or otherwise, to cause the Company to
issue or sell to it any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company,
(ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock of or other
equity interests in the Company and (iii) no person has the
right to act as an underwriter or initial purchaser or as a
financial advisor to the Company in connection with the offer and
sale of the Notes; except as disclosed in the Preliminary
Memorandum and the Final Memorandum, and except for any such rights
as have been duly waived, no person has the right, contractual or
otherwise, to cause the Company to register under the Act any
shares of Common Stock or shares of any other capital stock of or
other equity interests in the Company; except for such rights as
have been duly waived, no person has the right, contractual or
otherwise, to include any shares of Common Stock or shares of any
other capital stock of or other equity interests in the Company in
any registration statement to be filed with the Commission pursuant
to the Registration Rights Agreement or the offering contemplated
thereby;
(w) each of the Company and the
Subsidiaries has all necessary licenses, authorizations, consents
and approvals and has made all necessary filings required under any
applicable law, regulation or rule, and has obtained all necessary
licenses, authorizations, consents and approvals from other
persons, in order to conduct their
10
respective businesses in the manner
described in the Preliminary Memorandum and the Final Memorandum,
except where the failure to have or obtain such licenses,
authorizations, consents and approvals or to make such filings
would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is
in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries,
except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material
Adverse Effect;
(x) there are no actions, suits,
claims, investigations or proceedings pending or, to the
Company’s knowledge, threatened or overtly contemplated to
which the Company or any of the Subsidiaries or any of their
respective directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or
in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, or before or by any self-regulatory organization or other
non-governmental regulatory authority (including, without
limitation, the NASDAQ), except any such action, suit, claim,
investigation or proceeding which, if resolved adversely to the
Company or any Subsidiary, would not, individually or in the
aggregate, have a Material Adverse Effect;
(y) Ernst & Young, LLP,
whose report on the consolidated financial statements of the
Company and the Subsidiaries is included or incorporated by
reference in the Preliminary Memorandum and the Final Memorandum,
are independent registered public accountants as required by the
Act and by the rules of the Public Company Accounting Oversight
Board;
(z) Grant Thornton LLP, whose report
on the consolidated financial statements of Celunol Corp., is
included or incorporated by reference in the Preliminary Memorandum
and the Final Memorandum, are, to the Company’s knowledge,
independent registered public accountants with respect to Celunol
Corp. as required by the Act and by the rules of the Public Company
Accounting Oversight Board;
(aa) the financial statements
included or incorporated by reference in the Preliminary Memorandum
and the Final Memorandum, together with the related notes and
schedules, present fairly, in all material respects, the
consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and of Celunol Corp. as of the dates
indicated and the consolidated results of operations, cash flows
and changes in stockholders’ equity of the Company for the
periods specified and of Celunol Corp. for the periods specified
and have been prepared in compliance with the requirements of the
Act (assuming the Preliminary Memorandum and the Final Memorandum
were a prospectus included in a registration statement under the
Act) and Exchange Act and in conformity with U.S. generally
accepted accounting principles applied on a consistent basis during
the periods involved all pro forma financial statements or data
included or incorporated by reference in the Preliminary Memorandum
and the Final Memorandum
11
comply with the requirements of the
Act (assuming the Preliminary Memorandum and the Final Memorandum
were a prospectus included in a registration statement under the
Act) and the Exchange Act, and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data; the other financial and statistical data contained or
incorporated by reference in the Preliminary Memorandum and the
Final Memorandum are in all material respects accurately and fairly
presented and, where applicable, prepared on a basis consistent
with the financial statements and books and records of the Company;
assuming the Preliminary Memorandum and the Final Memorandum were a
prospectus included in a registration statement under the Act,
there are no financial statements (historical or pro forma) that
are required to be included or incorporated by reference in the
Preliminary Memorandum or the Final Memorandum (or any Incorporated
Document) that are not included or incorporated by reference as
required; the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the Preliminary
Memorandum and the Final Memorandum; and all disclosures contained
or incorporated by reference in the Preliminary Memorandum and the
Final Memorandum regarding “non-GAAP financial
measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Exchange Act and Item 10 of Regulation S-K under the Act,
assuming the Preliminary Memorandum and the Final Memorandum were a
prospectus included in a registration statement under the
Act;
(bb) no stock option grant under any
stock option plan of the Company or any Subsidiary (each, a “
Stock Plan ”) involved any “back-dating,”
“forward-dating” or similar practice with respect to
the effective date of such grant; except as would not, individually
or in the aggregate, have a Material Adverse Effect, each such
option (i) was granted in compliance with applicable law and
with the applicable Stock Plan(s); and (ii) was duly approved
by the board of directors (or a duly authorized committee thereof)
of the Company or such Subsidiary, as applicable;
(cc) subsequent to the respective
dates as of which information is given in the Preliminary
Memorandum and the Final Memorandum, in each case excluding any
amendments or supplements to the foregoing made after the execution
of this Agreement, there has not been (i) any material adverse
change, or any development involving a prospective material adverse
change, in the business, properties, management, financial
condition or results of operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction that is
material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation or liability, direct or contingent
(including any off-balance sheet obligations), incurred by the
Company or any Subsidiary, which is material to the Company and the
Subsidiaries taken as a whole, (iv) any change in the capital
stock or outstanding indebtedness of the Company or any
Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any
Subsidiary;
12
(dd) the Company has obtained for
the benefit of the Initial Purchasers the agreement (a “
Lock-Up Agreement ”) of each person or entity set
forth in Exhibit A-1 hereto, in the respective forms set
forth in Exhibit A-2 through Exhibit A-6 and
identified in Exhibit A-1 hereto;
(ee) neither the Company nor any
Subsidiary is and, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof, neither of
them will be an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(ff) except as disclosed in the
Preliminary Memorandum and except as would not, individually or in
the aggregate, have a Material Adverse Effect, (i) the Company
and each of the Subsidiaries have good and marketable title to all
property (real and personal) described the Preliminary Memorandum
and the Final Memorandum as being owned by any of them, free and
clear of all liens, claims, security interests or other
encumbrances; and (ii) all the property described in the
Preliminary Memorandum and the Final Memorandum as being held under
lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases;
(gg) the Company and the
Subsidiaries own, or have obtained valid and enforceable licenses
for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames,
service names, copyrights, trade secrets and other proprietary
information described in the Preliminary Memorandum and the Final
Memorandum as being owned or licensed by them or which are
necessary for the conduct of their respective businesses as
currently conducted or as proposed to be conducted (including the
commercialization of products or services described in the
Preliminary Memorandum and the Final Memorandum as under
development) (such inventions, patent applications, patents,
trademarks, tradenames, service names, copyrights, trade secrets
and information, collectively, “ Intellectual Property
”), except where the failure to own, license or have such
Intellectual Property would not, individually or in the aggregate,
have a Material Adverse Effect; except as disclosed in the
Preliminary Memorandum and the Final Memorandum or as would not,
individually or in the aggregate, have a Material Adverse Effect,
(i) there are no third parties who have or, to the
Company’s knowledge, will be able to establish rights to any
Intellectual Property, except for, and to the extent of, the
ownership rights of the owners of the Intellectual Property which
the Preliminary Memorandum and the Final Memorandum disclose is
licensed to the Company; (ii) to the Company’s
knowledge, there is no infringement by third parties of any
Intellectual Property; (iii) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any
Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such action, suit,
proceeding or claim; (iv) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or
claim by others challenging the validity, enforceability or scope
of any Intellectual Property, and the Company is
13
unaware of any facts which could
form a reasonable basis for any such action, suit, proceeding or
claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others
that the Company or any Subsidiary infringes or otherwise violates,
or would, upon the commercialization of any product or service
described in the Preliminary Memorandum and the Final Memorandum as
under development, infringe or violate, any patent, trademark,
tradename, service name, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any
facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (vi) the Company and the
Subsidiaries have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the
Company or any Subsidiary, and all such agreements are in full
force and effect; (vii) to the Company’s knowledge,
there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the
Intellectual Property or that challenges the validity,
enforceability or scope of any of the Intellectual Property;
(viii) to the Company’s knowledge, there is no prior art
that may render any patent application within the Intellectual
Property unpatentable that has not been disclosed to the U.S.
Patent and Trademark Office; and (ix) the product candidates
described in the Preliminary Memorandum and the Final Memorandum as
under development by the Company or any Subsidiary fall within the
scope of the claims of one or more patents owned by, or exclusively
licensed to, the Company or any Subsidiary;
(hh) neither the Company nor any of
the Subsidiaries is engaged in any unfair labor practice; except
for matters which would not, individually or in the aggregate, have
a Material Adverse Effect, (i) there is (A) no unfair
labor practice complaint pending or, to the Company’s
knowledge, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the
Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the Company’s
knowledge, threatened against the Company or any of the
Subsidiaries and (C) no union
