. . . . . . . . . . . . . . . . . . .EXHIBIT C
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT ("Investment Agreement") is entered into as
of February 13, 1997 between Progenitor, Inc., a Delaware corporation
("Progenitor"), and the undersigned stockholder or debt holder (the
"Stockholder") of Mercator Genetics, Inc., a Delaware corporation ("MGI").
A. Progenitor, MG Merger Sub Corp., a Delaware corporation and a
wholly-owned subsidiary of Progenitor ("Reorganization Sub"), and
MGI have entered into an Agreement and Plan of Reorganization,
dated as of February 14, 1997 (the "Reorganization Agreement").
Any terms not defined herein shall have the meanings given them
in the Reorganization Agreement.
B. The Reorganization Agreement provides for the merger of MGI into
Reorganization Sub (the "Reorganization"). Upon the consummation
of the Reorganization, the Stockholder will become the owner of
shares of Progenitor Common Stock (the "Shares").
AGREEMENT
1.STOCKHOLDER REPRESENTATIONS AND AGREEMENTS. With the intention that
Progenitor and tax counsel for Progenitor and MGI rely hereupon, Stockholder
hereby represents, warrants and agrees that:
1.1 INTENT. Stockholder does not now have, and as of the Effective
Time will not have, any present plan or intention (a "Plan of Transfer") to
engage in a sale, exchange, transfer, distribution, pledge, disposition or any
other transaction which
would result in a direct or indirect disposition or reduction in risk of
ownership (a "Sale") of more than fifty percent (50%) of the Shares that
Stockholder may acquire pursuant to the Reorganization Agreement. For purposes
of this representation, a Sale of Shares shall be considered to have occurred
pursuant to a Plan of Transfer if such Sale occurs in a transaction that is in
contemplation of, or related or pursuant to, the Reorganization or the
Reorganization Agreement (a "Related Transaction"). In addition, MGI shares
with respect to which a pre-Reorganization Sale occurs in a Related Transaction,
shall be considered to be outstanding MGI shares that are exchanged for
Progenitor Shares which are disposed of pursuant to a Plan of Transfer. If any
of Stockholder s representations in this SECTION 1.1 ceases to be true at any
time prior to the Effective Time of the Reorganization, Stockholder will deliver
to each of Progenitor and MGI, prior to the Effective Time of the
Reorganization, a written statement to that effect, signed by Stockholder.
1.2 OBSERVATION OF SECURITIES ACT. Stockholder will observe and
comply with the Securities Act and the General Rules and Regulations thereunder
in connection with any offer, sale, pledge, transfer or other disposition of the
Shares or any part thereof including the prospectus delivery requirements of
Section 10 of the Securities Act.
2. REGISTRATION. Progenitor shall have the obligation to register
the Shares issued to Stockholders subject to the terms set forth in the
Reorganization Agreement.
3. MARKET STAND-OFF. Stockholder hereby agrees that, in connection
with the IPO, it shall not, directly or indirectly, sell, offer, contract to
sell, grant any option to purchase, transfer the economic risk of ownership in,
make any short sale, pledge or otherwise dispose of, any Shares, without the
prior written consent of the managing underwriters of the IPO; PROVIDED, that
the Shares shall be subject to release from this restriction in accordance with
the following schedule, to the extent otherwise permissible under the
requirements for a tax-free reorganization: one-third of such Shares shall be
released one hundred eighty (180) days after the effective date of the IPO;
one-third of such Shares shall be released two hundred seventy (270) days after
the effective date of the IPO; and one-
third of such Shares shall be released three hundred sixty-five (365) days after
the effective date of the IPO; PROVIDED, FURTHER, that all such Shares shall be
released one hundred eighty (180) days after the effective date of the IPO if
Stockholder s employment by MGI is terminated by MGI prior to such one hundred
eightieth day, and all such Shares shall be released on the effective date of
termination if Stockholder s employment by MGI is terminated by MGI after such
one hundred eightieth day (except in either case where the termination is in
connection with a transfer to Progenitor in at least an equivalent position,
provided that such transfer does not require the Stockholder to relocate). This
restriction shall be binding upon any transferee of the Shares and the
certificates for the Shares shall bear a legend to such effect. In order to
enforce the foregoing covenant, Progenitor may impose stop-transfer instructions
with respect to the Shares until the end of such period.
4. WAIVER. No waiver by any party hereto of any condition or of any
breach of any provision of this Investment Agreement shall be effective unless
in writing.
5. NOTICES. All notices, requests, demands or other communications
which are required or may be given pursuant to the terms of this Investment
Agreement shall be in writing and shall be deemed to have been duly given on the
date of delivery by hand or upon receipt if mailed by registered or certified
mail, postage prepaid, return requested, or sent by express courier, or by
facsimile upon written confirmation of receipt by the recipient of such notice
to the party at the address set forth below, or such other address as may be
hereafter be designated in writing by the party:
IF TO THE STOCKHOLDER: At the address set forth below the signature
of the Stockholder below.
IF TO PROGENITOR: Progenitor, Inc.
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▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
6. COUNTERPARTS. This Investment Agreement may be executed in two
or more partially or fully executed counterparts, each of which shall be deemed
an original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument. The execution and delivery of a
Signature Page - Investment Agreement in the form annexed to this Investment
Agreement by any party hereto who shall have been furnished the final form of
this Agreement shall constitute the execution and delivery of this Agreement by
such party.
7. SUCCESSORS AND ASSIGNS. This Investment Agreement shall be
enforceable by and shall inure to the benefit of and be binding upon, the
parties hereto and their respective successor and assigns. As used herein, the
terms "successors and assigns" shall mean, where the context so permits, heirs,
executors, administrators, trustees and successor trustees, and personal and
other representatives.
8. GOVERNING LAW. This Investment Agreement shall be governed by
and construed, interpreted and enforced in accordance with the laws of the State
of Delaware, without regards to the principles of conflicts of laws.
9. SEVERABILITY. If any provision of this Investment Agreement is
held to be unenforceable for any reason, such provision and all other related
provisions shall be modified rather than voided, if possible, in order to
achieve the intent of the parties to this Investment Agreement to the extent
possible. In any event, all other unrelated provisions of this Investment
Agreement shall be deemed valid and enforceable to the full extent.
10. EFFECT OF HEADING. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Investment Agreement.
11. DEFINITIONS. All capitalized terms used herein shall have the
meaning defined in the Reorganization Agreement, unless otherwise defined
herein.
12. THIRD PARTY RELIANCE. Counsel to the parties shall be entitled
to rely upon this Investment Agreement as needed in the rendering of opinions as
provided for in the Reorganization Agreement.
IN WITNESS WHEREOF, the parties have caused this Investment Agreement
to be executed as of the date first above written.
PROGENITOR, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
Its: Vice President, Finance and Chief Financial
Officer
STOCKHOLDER
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Its (if applicable) . . . . . . . . .
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Address:. . . . . . . . . . . . . . .
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(Print Taxpayer Identification Number)
