Exhibit 10.49
VOTING AGREEMENT
This VOTING AGREEMENT, dated as of
June 3, 2003 (the “ Agreement ”), is by and
between Polar Molecular Corporation, a Delaware corporation (the
“ Company ”), and each of the Persons listed on
Schedule I attached hereto (each a “ Covered
Stockholder ” and collectively the “ Covered
Stockholders ”). Each of the Covered Stockholders is a
stockholder in the Company (the “ Company
”).
W I T N E S S E T H:
WHEREAS, the Company has entered
into an Agreement and Plan of Merger, dated as of December 19,
2001, as amended (the “ Merger Agreement ”),
which provides for, upon the terms and subject to the conditions
set forth therein, the merger of a wholly owned subsidiary of
Murdock Communications Corporation, an Iowa corporation (“
Murdock ”), with and into the Company (the “
Merger ”);
WHEREAS, immediately prior to the
Merger, Murdock will be reincorporated into Polar Molecular Holding
Corporation, a Delaware corporation (“ Holding
”);
WHEREAS, in the Merger, Holding will
issue shares of its common stock (the “ Holding Common
Stock ”) to stockholders of the Company as merger
consideration for their shares in Polar;
WHEREAS, as of the date hereof, each
Covered Stockholder owns beneficially and of record the number of
shares of the Company’s common stock, par value $.0001 per
share (all such shares, and any shares of Holding Common Stock, so
owned and which may hereafter be acquired by such Covered
Stockholder prior to the termination of this Agreement, whether
upon the exercise of options or by means of purchase, dividend,
distribution or otherwise, being referred to herein as such Covered
Stockholder’s “ Common Shares ”), set
forth opposite such Covered Stockholder’s name in Schedule
I attached hereto; and
WHEREAS, the Covered Stockholders
desire to provide Mark L. Nelson (“ Nelson ”)
with a proxy to vote their Common Shares on all matters to be
brought before the stockholders of Polar, and after the Merger,
Holding;
NOW, THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the Covered
Stockholders hereby agree as follows:
1. Consent and Voting Matters;
Other Covenants of the Covered Stockholders .
(a) Agreement to Vote . Each
Covered Stockholder hereby agrees (for himself, herself or itself
and not as to any other Covered Stockholder) that, from the date
hereof until the termination of this Agreement pursuant to
paragraph 5(a) hereof (the “ Term ”), he, she or
it shall, at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the stockholders of the
Company (or, after the Merger, Holding), however duly called, or
in
connection with any written consent of the
holders of Common Shares, if a meeting is held, appear at such
meeting or otherwise cause such Covered Stockholder’s Common
Shares to be counted as present thereat for purposes of
establishing a quorum, and he, she or it shall vote or consent (or
cause to be voted or consented), in person or by proxy, all such
Covered Stockholder’s Common Shares in accordance with the
written instructions provided by Nelson to the Covered Shareholders
prior to or at the meeting.
(b) No Inconsistent
Arrangements . Except as contemplated by this Agreement, each
Covered Stockholder agrees (for himself, herself or itself and not
as to any other Covered Stockholder) that he, she or it shall not
during the Term (i) transfer (which term shall include, without
limitation, any sale, assignment, gift, pledge, hypothecation or
other disposition), or consent to any transfer of, any or all of
such Covered Stockholder’s Common Shares or any interest
therein, or create or, permit to exist any lien on such Common
Shares (except for (x) any transfer not prohibited by the Lock-up
Agreement entered into by the Covered Stockholder in favor of the
Company and (y) any other transfer permitted by the Board of
Directors of the Company in its sole discretion), (ii) enter into
any contract, option or other agreement or understanding with
respect to any transfer of any or all of such Common Shares or any
interest therein (except for (x) any transfer not prohibited by the
Lock-up Agreement entered into by the Covered Stockholder in favor
of the Company and (y) any other transfer permitted by the Board of
Directors of the Company in its sole discretion), (iii) grant any
proxy, power-of-attorney or other authorization in or with respect
to such Common Shares, (iv) deposit such Common Shares into a
voting trust or enter into a voting agreement or arrangement with
respect to such Common Shares, or (v) take any other action that
would in any way restrict, limit or interfere with the performance
of his obligations hereunder.
(c) Proxy . Each Covered
Stockholder hereby revokes any and all prior proxies or powers of
attorney in respect of his Common Shares (other than the proxy
relating to the Merger that has been sought by the Company) and
constitutes and appoints Nelson, or any nominee of Nelson, as his,
her or its true and lawful attorney-in-fact and proxy (with full
power of substitution and resubstitution at any time during the
Term) (the “ Proxy ”), for and in his, her or
its name, place and stead, to execute and deliver a written consent
and to vote such Covered Stockholder’s Common Shares as
indicated in paragraph 1(a) above and to vote each of such Common
Shares as his or its Proxy, at every annual, special, adjourned or
postponed meeting of the stockholders of the Company (and after the
Merger, Holding). THE FOREGOING PROXY AND POWER OF ATTORNEY ARE
IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE
TERM.
(d) Disclosure . Each Covered
Stockholder hereby authorizes Holding to publish and disclose in
all documents and schedules filed and to be filed with the SEC his,
her or its identity and ownership of the Common Shares and the
nature of his, her or its commitments, arrangements and
understandings under this Agreement.
2. Representations and Warranties
of the Covered Stockholders . Each Covered Stockholder,
severally but not jointly, makes the following representations and
warranties to the Company:
(a) Power; Binding Agreement
. Such Covered Stockholder has the power and authority to enter
into and perform all of his, her or its obligations under this
Agreement (including
-2-
the power and authority without further action
on the part of any stockholders, members or partners thereof or any
other juridical or nonjuridical person to comply with the consent
and voting requirements of paragraph 1 hereof). The execution,
delivery and performance of this Agreement by such Covered
Stockholder will not violate any other agreement to which such
Covered Stockholder is a party (including any trust agreement,
voting agreement, stockholders agreement or voting trust). This
Agreement has been duly and validly authorized, executed and
delivered by such Covered Stockholder and constitutes a valid and
binding agreement of such Covered Stockholder, enforceable against
it in accordance with its terms, except as limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to creditor’s rights generally or (ii) general
principles of equity, whether such enforceability is considered in
a proceeding in equity or law, and to the discretion of the court
before which any proceeding therefor may be brought.
(b) No Conflict . Other than
any filings required under the Securities and Exchange Act of 1934,
as amended, and the rules and regulations thereunder, no filing
with, and no permit, authorization, consent or approval of, any
state or federal public body or authority is required
