Blueprint





 






 Exhibit 10.3



VOTING
AGREEMENT


This
VOTING AGREEMENT (this
“Agreement”) is entered
into as of April 8, 2016 (the “Effective Date”) by and
among Adgero Biopharmaceuticals Holdings, Inc., a Delaware
corporation (the “Company”), the parties
listed as stockholders of Adgero Biopharmaceuticals, Inc. (the
“Adgero
Stockholders”) on the signature pages hereto and the
parties listed as stockholders of the Company (the
“Holdings
Stockholders”) on the signature pages hereto (each, a
“Stockholder” and
collectively, the “Stockholders”).



W I T N E S S E T H:


WHEREAS, as of the date hereof, each
Stockholder holds and is entitled to vote (or to direct the voting
of) shares of voting common stock, par value $0.0001 per share (the
“Voting Common
Shares”), of the Company, (such Voting Common Shares,
together with any other Voting Common Shares the voting power of
which is acquired by such Stockholders during the period from the
date hereof through the date on which this Agreement is terminated
in accordance with its terms (such period, the “Voting Period”), are
collectively referred to herein as the “Subject
Shares”);


WHEREAS, the Company has entered into an
Agreement and Plan of Merger with Adgero Biopharmaceuticals, Inc.,
a Delaware corporation (“Adgero”), pursuant to
which a newly organized, wholly-owned subsidiary of the Company has
merged with and into Adgero, with Adgero remaining as the surviving
entity and a wholly-owned subsidiary of the Company (the
“Merger”);


WHEREAS, simultaneously with the Merger
and to provide the capital required by the Company for working
capital and other purposes, the Company has offered in compliance
with Rule 506 of Regulation D of the Securities Act of 1933, as
amended, to investors in a private placement transaction (the
“PPO”),
units (“Units”) of its
securities, each Unit consisting of one (1) share of Common Stock
(the “Investor
Shares”) and one (1) warrant (the “Investor Warrants”) to
purchase one (1) share of Common Stock;


WHEREAS, the initial closing of the PPO
and the closing of the Merger have taken place as of the Effective
Date; and


WHEREAS, as an inducement to the
parties’ willingness to consummate the transactions
contemplated by the Merger Agreement, the Company and the
Stockholders are entering into this Agreement.


NOW, THEREFORE, in consideration of the
mutual promises, representations, warranties, covenants, and
conditions set forth herein, the parties mutually agree as
follows:



 

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ARTICLE
I


DEFINITIONS


Section
1.1 Capitalized Terms. For purposes of this
Agreement, capitalized terms used and not defined herein shall have
the respective meanings ascribed to them in the Merger
Agreement.


 


ARTICLE
II


VOTING AGREEMENT
AND IRREVOCABLE PROXY


 



Section 2.1 Agreement to Vote the Subject Shares.
Each Stockholder hereby agrees that, during the Voting Period, at
any duly called meeting of the stockholders of the Company (or any
adjournment or postponement thereof) or action taken by written
consent in lieu of a meeting, each Stockholder shall, if a meeting
is held, appear at the meeting, in person or by proxy, or otherwise
cause his Subject Shares owned at any time to be counted as present
thereat for purposes of establishing a quorum, and he shall vote (or cause to be voted), in
person or by proxy, all of his Subject Shares:


(a) to ensure that the
size of the Board shall be set and remain at five (5) directors
unless increased by the Board.


(b) to ensure that at
each annual or special meeting of stockholders at which an election
of directors is held or pursuant to any written consent of the
Stockholders, the following persons shall be elected to the
Board:


(i) One person
designated by Aegis Capital Corp. (the “Aegis Designee”), which
individual shall initially be David Hochman;


(ii) Three
people designated by the Adgero Stockholders (the
“Adgero
Designees”), which shall initially be Frank G.
Pilkiewicz, PH.D., Roman Perez-Soler, M.D., and Alan Bloom, PH.D.;
and


(iii) One
independent person acceptable to the Aegis Designee and the Adgero
Designees which shall be an independent person which individual
shall initially be Tim McInerney.


Section
2.2 Grant of Irrevocable Proxy. If requested
by the Company, each Stockholder shall appoint the Company and any
designee of the Company, and each of them individually, as each
Stockholder’s proxy, with full power of substitution and
resubstitution, to vote during the Voting Period with respect to
any and all of the Subject Shares on the matters and in the manner
specified in Section 2.1. Each
Stockholder shall take such further action or execute such other
instruments as may be reasonably necessary to effectuate the intent
of any such proxy. Each Stockholder affirms that any irrevocable
proxy given by him with respect to this Agreement and the
transactions contemplated hereby shall be given to the Company by
such Stockholder to secure the performance of the obligations of
the Stockholder under this Agreement. It is agreed that the Company
(and its officers on behalf of the Company) will use the
irrevocable proxy that may be granted by each Stockholder only in
accordance with applicable law and only if such Stockholder fails
to comply with Section 2.1 and that, to
the extent the Company (and its officers on behalf of the Company)
uses any such irrevocable proxy, he will only vote the Subject
Shares subject to such irrevocable proxy with respect to the
matters specified in, and in accordance with the provisions of,
Section 2.1.



 

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Section
2.3 Nature of Irrevocable Proxy. Any proxy
granted pursuant to Section 2.2 to the Company
by the Stockholders shall be irrevocable during the term of this
Agreement, shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable proxy and shall revoke
any and all prior proxies granted by the Stockholders. Any proxy
that may be granted hereunder shall terminate upon the termination
of this Agreement.


ARTICLE
III


COVENANTS


Section
3.1 Subject
Shares.


(a) Each Stockholder
agrees that during the Voting Period he shall not, without the
Company’s prior written consent, grant any proxies or powers
of attorney with respect to any or all of the Subject Shares or
agree to vote the Subject Shares on any matter inconsistent with
the terms described herein; provided,
however,
that in the event a Stockholder transfers all or any portion of his
Subject Shares such Stockholder shall be permitted to grant stock
powers with respect to such transferred Subject
Shares.


(b) In the event of a
stock dividend or distribution, or any change in the Subject Shares
by reason of any stock dividend or distribution, split-up,
recapitalization, combination, conversion, exchange of shares or
the like, the term “Subject Shares” shall be deemed to
refer to and include the Subject Shares as well as all such stock
dividends and distributions and any securities into which or for
which any or all of the Subject Shares may be changed or exchanged
or which are received in such transaction.


Section
3.2 Voting Trusts. Each Stockholder agrees
that he will not, nor will he permit any entity under his control
to, deposit any of his Subject Shares in a voting trust or subject
any of his Subject Shares to any arrangement with respect to the
voting of such Subject Shares other than as provided herein.
Notwithstanding the foregoing, each Stockholder shall be permitted
to transfer all or any portion of his Subject Shares to third
parties subject to any contractual restrictions on transfer
applicable to his Subject Shares.


ARTICLE
IV


REPRESENTATIONS AND
WARRANTIES Of each STOCKHOLDER


Each
Stockholder hereby represents and warrants to the Company,
severally, but not jointly, as follows:


Section
4.1 Authority, etc. The Stockholder (i) if a
natural person, represents that the Stockholder has reached the age
of 21 and has full power and authority to execute and deliver this
Agreement and all other related agreements or certificates and to
carry out the provisions hereof and thereof; (ii) if a corporation,
partnership, or limited liability company or partnership, or
association, joint stock company, trust, unincorporated
organization or other entity, represents that such entity was not
formed for the specific purpose of acquiring the Units, such entity
is duly organized, validly existing and in good standing under the
laws of the state of its organization, the consummation of the
transactions contemplated hereby is authorized by, and will not
result in a violation of state law or its charter or other
organizational documents, such entity has full power and authority
to execute and deliver this Agreement and all other related
agreements or certificates and to carry out the provisions hereof
and thereof, the execution and delivery of this Agreement has been
duly authorized by all necessary action, this Agreement has been
duly executed and delivered on behalf of such entity and is a
legal, valid and binding obligation of such entity; or (iii) if
executing this Agreement in a representative or fiduciary capacity,
represents that it has full power and authority to execute and
deliver this Agreement in such capacity and on behalf of the
subscribing individual, ward, partnership, trust, estate,
corporation, or limited liability company or partnership, or other
entity for whom the Stockholder is executing this Agreement, and
such individual, partnership, ward, trust, estate, corporation, or
limited liability company or partnership, or other entity has full
right and power to perform pursuant to this Agreement and
represents that this Agreement constitutes a legal, valid and
binding obligation of such entity. This Agreement has been duly
executed and delivered by each Stockholder and (assuming the due
authorization, execution and delivery by the Company) constitutes a
valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, except to
the extent enforcement is limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and by general equitable principles.



 

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Section
4.2 Ownership of Shares. As of the date
hereof, each Stockholder is the lawful owner of the Voting Common
Shares owned by such Stockholder and has the sole power to vote or
cause to be voted such shares or shares power to vote or cause to
be voted such shares solely with one or more other persons. Each
Stockholder has good and valid title to the Voting Common Shares
owned by each Stockholder, free and clear of any and all pledges,
mortgages, liens, charges, proxies, voting agreements,
encumbrances, adverse claims, options, security interests and
demands of any nature or kind whatsoever, other than (i) those
created by this Agreement, or (ii) those existing under applicable
securities laws.


Section
4.3 No Conflicts. (a) No authorization,
consent or approval of any other person is necessary for the
execution of this Agreement by each Stockholder and (b) none of the
execution and delivery of this Agreement by each Stockholder, the
consummation by each Stockholder of the transactions contemplated
hereby or compliance by each Stockholder with any of the provisions
hereof shall (i) result in, or give rise to, a violation or breach
of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which
each Stockholder is a party or by which each Stockholder or any of
the Subject Shares or its assets may be bound or (ii) violate any
applicable order, writ, injunction, decree, judgment, statute, rule
or regulation, except for any of the foregoing as would not
reasonably be expected to materially impair each
Stockholder’s ability to perform his obligations under this
Agreement.


 



 

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ARTICLE
V


REPRESENTATIONS AND
WARRANTIES OF THE COMPANY


The
Company hereby represents and warrants to each Stockholder as
follows:


Section
5.1 Due Organization, etc. The Company is a
Delaware corporation duly organized and validly existing under the
laws of Delaware. The Company has all necessary corporate power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions
contemplated hereby by the Company have been duly authorized by all
necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and
(assuming the due authorization, execution and delivery by each
Stockholder) constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms, except to the extent enforcement is limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and by general equitable
principles.


Section
5.2 No Conflicts. (a) No authorization,
consent or approval of any other person is necessary for the
execution of this Agreement by the Company and (b) none of the
execution and delivery of this Agreement by the Company, the
consummation by the Company of the transactions contemplated hereby
or compliance by the Company with any of the provisions hereof
shall (i) conflict with or result in any breach of the
organizational documents of the Company, (ii) result in, or give
rise to, a violation or breach of or a default under any of the
terms of any material contract, understanding, agreement or other
instrument or obligation to which the Company is a party or by
which the Company or any of its assets may be bound or (iii)
violate any applicable order, writ, injunction, decree, judgment,
statute, rule or regulation, except for any of the foregoing as
would not reasonably be expected to materially impair the
Company’s ability to perform its obligations under this
Agreement.


ARTICLE
VI


TERMINATION


Section
6.1 Termination. This Agreement shall
automatically terminate, and neither the Company nor the
Stockholders shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon
the earliest to occur of: (a) the approval of the holders of at
least 75% of the Subject Shares, (b) the closing of a firm
commitment underwritten public offering of the Company’s
shares of Common Stock resulting in gross proceeds of at least $10
million or (c) the listing of the Common Stock on Nasdaq or the New
York Stock Exchange. The termination of this Agreement shall not
prevent either party from seeking any remedies (at law or in
equity) against the other party or relieve any party from liability
for such party’s willful and material breach of any terms of
this Agreement. Notwithstanding anything to the contrary herein,
(i) the provisions of Article VII shall survive the
termination of this Agreement and (ii) if a Stockholder effectuates
a sale, transfer or other disposition of his Subject Shares to a
party that is not a Stockholder following the expiration of any
contractual restrictions applicable to such disposition but during
the Voting Period, the transferee shall not acquire Subject Shares
subject to the terms of this Agreement.



 

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ARTICLE
VII


MISCELLANEOUS


Section
7.1 Further Actions.
Each of the parties hereto
agrees to take any all actions and to do all things reasonably
necessary or appropriate to effectuate this Agreement.



Section 7.2 Amendments,
Waivers, etc. This
Agreement may not be amended, changed, supplemented, waived or
otherwise modified, except upon the execution and delivery of a
written agreement executed by the holders of at least 75% of the
Subject Shares. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations
hereunder, and any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy
or to demand such
compliance.



Section 7.3 Notices. All notices or other communications which are
required or permitted under this Agreement shall be in writing and
sufficient if delivered by hand, by facsimile transmission, by
registered or certified mail, post pre-paid, or by courier or
overnight carrier, to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall
be deemed to have been delivered as of the date so
delivered:


If to
the Company to:


 


Adgero
Biopharmaceuticals Holdings, Inc.


301 N.
Harrison St., Suite 9F #459


Princeton, NJ
08540


Attention:
CEO


Facsimile: (609) 936-1341


 


with
copy to:


 


Lowenstein Sandler
LLP


1251 Avenue of the Americas, 17th
Floor


New
York, NY 10020


Attn:
Steven M. Skolnick, Esq.


Facsimile:
(973) 597-2477


 


If to
the Stockholders:


 


To each
Stockholder at the address set forth on the signature page hereto
or at such other address as any party shall have furnished to the
other parties in writing.


 


Section
7.4 Headings. Headings of the Articles and
Sections of this Agreement are for convenience of the parties only,
and shall be given no substantive or interpretive effect
whatsoever.



 

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Section
7.5 Severability. The provisions of this
Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application of such provision to any person
or any circumstance, is invalid or unenforceable (a) a suitable and
equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose
of such invalid or unenforceable provision and (b) the remainder of
this Agreement and the application of such provision to other
persons or circumstances shall not be affected by such invalidity
or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the
application of such provision, in any other
jurisdiction.


Section
7.6 Entire Agreement; Assignment. This
Agreement constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral,
between the parties, or any of them, with respect to the subject
matter hereof. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without
the prior written consent of the other parties. Subject to the
preceding two sentences, this Agreement will be binding upon, inure
to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.


Section
7.7 Parties in Interest. The Company and the
Stockholders hereby agree that their respective representations,
warranties and covenants set forth herein are solely for the
benefit of the other party hereto, in accordance with and subject
to the terms of this Agreement, and this Agreement is not intended
to, and does not, confer upon any person other than the parties
hereto any rights or remedies hereunder, including, without
limitation, the right to rely upon the representations and
warranties set forth herein. The representations and warranties in
this Agreement are the product of negotiations among the parties
hereto and are for the sole benefit of the parties hereto. Any
inaccuracies in such representations and warranties are subject to
waiver by the parties hereto in accordance with Section 7.2 without notice or
liability to any other person. In some instances, the
representations and warranties in this Agreement may represent an
allocation among the parties hereto of risks associated with
particular matters regardless of the knowledge of any of the
parties hereto. Consequently, persons other than the parties hereto
may not rely upon the representations and warranties in this
Agreement as characterizations of actual facts or circumstances as
of the date of this Agreement or as of any other date.


Section
7.8 Interpretation. When a reference is made
in this Agreement to an Article or Section, such reference shall be
to an Article or Section of this Agreement unless otherwise
indicated. Whenever the words “include,” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation.” The words “hereof,”
“herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document
made or delivered pursuant thereto unless otherwise defined
therein. The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such
term. Any agreement, instrument or statute defined or referred to
herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time
amended, modified or supplemented in accordance with the terms
hereof, including (in the case of agreements or instruments) by
waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments
thereto and instruments incorporated therein. References to a
person are also to its permitted successors and assigns. Each of
the parties has participated in the drafting and negotiation of
this Agreement. If an ambiguity or question of intent or
interpretation arises, this Agreement must be construed as if
drafted by all the parties and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of
authorship of any of the provisions of this Agreement.



 

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Section
7.9 Governing Law. THIS AGREEMENT SHALL BE
DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF.


Section
7.10 Specific Performance. The parties
acknowledge that any breach of this Agreement would give rise to
irreparable harm for which monetary damages would not be an
adequate remedy and that, in addition to other rights or remedies,
the parties shall be entitled to seek enforcement of any provision
of this Agreement by a decree of specific performance and to
temporary, preliminary and permanent injunctive relief to prevent
breaches or threatened breaches of any of the provisions of this
Agreement, without the necessity of proving the inadequacy of
monetary damages as a remedy.


Section
7.11 Submission to Jurisdiction. The parties
hereby irrevocably submit to the exclusive jurisdiction of the
United States District Court for the Southern District of New York
located in the borough of Manhattan in the City of New York, or if
such court does not have jurisdiction, the Supreme Court of the
State of New York, New York County, for the purposes of any suit,
action or other proceeding arising out of this Agreement or any
transaction contemplated hereby. Each of the parties hereto further
agrees that service of any process, summons, notice or document by
registered mail to such party’s respective address set forth
in Section 7.3 (or
to such other address for notices as provided by such party
pursuant to Section
7.3) or in any other manner permitted by law shall be
effective service of process for any action, suit or proceeding in
New York with respect to any matters to which it has submitted to
jurisdiction as set forth above in the immediately preceding
sentence. Each of the parties hereto irrevocably and
unconditionally waives any objection to the laying of venue of any
action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the United States District
Court for the Southern District of New York or (ii) the Supreme
Court of the State of New York, New York County, and hereby further
irrevocably and unconditionally waives and agrees not to please or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.


Section
7.12 Waiver of Jury Trial. EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.12.



 

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Section
7.13 Counterparts. This Agreement may be
executed in two or more counterparts (including by facsimile or
electronic submission via .pdf file), each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument, and shall become effective
when one or more counterparts have been signed by each of the
parties and delivered (including by facsimile or electronic
submission via .pdf file) to the other parties.



[Signature Pages Follow]




 






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IN WITNESS WHEREOF, the undersigned have
caused this Agreement to be duly executed as of the day and year
first above written.



ADGERO BIOPHARMACEUTICALS



HOLDINGS, INC.


 


 


By:_________________________________


Name: Frank
Pilkiewicz


Title: President


 





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Signatures Continue on the Next Page]


 

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Voting
Agreement


By: 
_________________________________


Name:


Address:
_________________________________





[Signature Page to Voting Agreement –



Signatures Continue on the Next Page]


 

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