Exhibit 10.3
IVOW MERGER VOTING
AGREEMENT
This IVOW MERGER VOTING AGREEMENT
(this “Agreement” ) is made and entered
into as of September 20, 2006 (the “Effective
Date” ), by and among iVOW, Inc., a Delaware
corporation ( “iVOW” ), and MedCap
Partners L.P. and MedCap Master Fund L.P. (collectively,
“Shareholder” ).
RECITALS
A.
This Agreement is entered into in connection with that certain
Agreement and Plan of Reorganization (the “Merger
Agreement” ) dated as of September 20, 2006, by and
among iVOW, Crdentia Corp., a Delaware corporation (
“Crdentia” ), and iVOW Acquisition Corp.
a Delaware corporation and wholly-owned subsidiary of Crdentia (
“Merger Sub” ) pursuant to which Merger
Sub will merge with and into iVOW, with iVOW continuing as the
surviving corporation of the merger and becoming a wholly-owned
subsidiary of Crdentia (the “Merger”
). Capitalized terms used in this Agreement which are not
otherwise defined herein will have the meanings given to such terms
in the Merger Agreement.
B.
As of the Effective Date of this Agreement, Shareholder owns in the
aggregate (including shares held both beneficially and of record
and other shares held either beneficially or of record) the number
of shares of iVOW Common Stock set forth below Shareholder’s
name on the signature page of this Agreement (all such shares
together with any shares of voting stock of iVOW that may hereafter
be acquired by Shareholder, being collectively referred to herein
as the “Subject Shares” ).
C.
Shareholder is entering into this Agreement as a material
inducement to, and in consideration of, Crdentia’s
willingness to enter into the Merger Agreement.
AGREEMENT
The parties to this Agreement,
intending to be legally bound, agree as follows:
1.
Transfer of Subject Shares .
1.1
No Disposition or Encumbrance of Subject Shares .
Shareholder agrees that,
prior to the Expiration Date, Shareholder will not, directly or
indirectly, sell, transfer, exchange, pledge or otherwise dispose
of, or in any other way reduce Shareholder’s risk of
ownership or investment in, or make any offer or agreement relating
to any of the foregoing with respect to, any Subject Shares, except
pursuant to the Merger Agreement and except for distributions of
shares to Shareholder’s limited partners, or sales of shares
with the proceeds distributed to Shareholder’s limited
partners, in the ordinary course of Shareholder’s business
consistent with the terms of the Shareholder’s Limited
Partnership Agreement made in order to satisfy Shareholder’s
obligations to its limited partners upon the redemption of fund
interests in accordance with Shareholder’s Limited
Partnership Agreement. As used herein, the term
“Expiration Date” means the earliest to
occur of (i) the Effective Time of the Merger, or (ii)
such time as the Merger Agreement or
this Agreement may be terminated in accordance with their
respective terms.
1.2
Transfer of Voting Rights . Shareholder agrees that, prior to the Expiration
Date, Shareholder will not deposit any of the Subject Shares into a
voting trust or grant a proxy or enter into an agreement of any
kind with respect to the voting of any of the Subject Shares,
except for the Proxy called for by Section 2.2 of this
Agreement.
2.
Voting of Subject Shares .
2.1
Voting Agreement . Shareholder agrees that, prior to the Expiration
Date, at any meeting of the shareholders of iVOW, however called,
and in any action taken by the written consent of shareholders of
iVOW without a meeting to vote as set forth therein, Shareholder
will vote the Subject Shares:
(i)
in favor of the Merger, the execution and delivery by iVOW of the
Merger Agreement and the adoption and approval of the terms thereof
and in favor of each of the other actions and transactions
contemplated by the Merger Agreement and any action required in
furtherance hereof and thereof;
(ii)
against any action or agreement that would result in a breach of
any representation, warranty, covenant or obligation of iVOW in the
Merger Agreement or that would preclude fulfillment of a condition
precedent under the Merger Agreement to iVOW’s obligations to
consummate the Merger; and
(iii)
against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) the
sale or exchange of iVOW’s capital stock, other than (x) upon
exercise or conversion of iVOW’s outstanding options,
warrants or notes, or (y) to any employee, consultant or director
of iVOW for purposes of retaining their services, (B) the merger of
iVOW with, or the direct or indirect disposition of a significant
amount of the assets or the business of iVOW to, any third party,
or (C) the licensing of iVOW IP Rights to any third party other
than licensing transactions which are in the ordinary course of
iVOW’s business and not material to iVOW or its business
(each of the actions described in clauses (A), (B) and (C) being
referred to herein as an “Alternative
Transaction” ); (D) any reorganization,
recapitalization, dissolution or liquidation of iVOW or any
subsidiary of iVOW; (E) any material change in the capitalization
of iVOW or iVOW’s corporate structure not contemplated by the
Merger Agreement; or (F) any other action which is intended, or
could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Merger Agreement or this
Agreement.
Prior to the Expiration Date,
Shareholder will not enter into any agreement or understanding with
any person or entity to vote or give instructions in any manner
inconsistent with this Section 2.1 .
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2.2
Proxy . Contemporaneously with the execution of this
Agreement, Shareholder will deliver to iVOW a proxy with respect to
the Subject Shares in the form attached hereto as Exhibit 1
, which proxy will be irrevocable to the fullest extent permitted
by law (the “Proxy” ) and will provide
that iVOW may vote the Subject Shares in accordance with Section
2.1.
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3.
No Solicitation . From the date hereof until the Expiration Date,
Shareholder will not, and will not authorize or permit any agent or
representative of Shareholder to, directly or indirectly: (i)
solicit, initiate or induce the making, submission or announcement
of any Company Acquisition Proposal (as that term is defined in the
Merger Agreement), (ii) participate in any discussions or
negotiations regarding, or furnish to any person any non-public
information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Company Acquisition
Proposal, (iii) engage in discussions with any person with respect
to any Company Acquisition Proposal, except as to disclose the
existence of these provisions, (iv) endorse or recommend any
Company Acquisition Proposal, or (v) enter into any letter of
intent or similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Company Acquisition
Proposal. If Shareholder becomes aware of any such offer, or
any discussions, negotiations, inquiries, proposals or contacts
with respect to any Company Acquisition Proposal, Shareholder
agrees to advise iVOW in writing of any Company Acquisition
Proposal or of any request for nonpublic information or other
inquiry which the party reasonably believes could lead to a Company
Acquisition Proposal, the material terms and conditions of such
Company
