**EXHIBIT 10.61**

 

**SETTLEMENT AGREEMENT AND RELEASE**

 

THISSETTLEMENT AGREEMENT AND RELEASE (this “Agreement”) is dated as of November 30,2005, between Polar Molecular Holding Corporation, a Delaware corporation (“Polar”),and Holme Roberts & Owen LLP, a Colorado limited liability partnership.Holme Roberts & Owen LLP, its predecessors, current and formerpartners, members, and employees shall be referred to herein as “HRO.”  Polar and HRO shall be collectively referredto herein as the “parties” and individually as a “party.”

 

**Recitals**

 

A.                                   HRO represented Polar in various matters,including, but not limited to, general corporate, securities and businessmatters and its merger with Murdock Communications Corp. (collectively, the “Matters”).  Polar engaged new legal counsel and HROceased representing Polar in March 2004.

 

B.                                     Polar owes HRO with respect to servicespreviously performed by HRO.

 

C.                                     To settle the amount owed to HRO, Polar executedwith HRO a Settlement Agreement dated as of May 7, 2004 (the “InitialSettlement Agreement”), pursuant to which Polar agreed to pay amounts owed toHRO on an agreed schedule.  No paymentshave been made under the Initial Settlement Agreement, and pursuant to theInitial Settlement Agreement Polar is indebted to HRO in the amount of$543,000, which amount is currently due and payable.

 

D.                                    Polar’s obligations to HRO are secured by asecond priority security interest over all of Polar’s assets (the “Lien”),pursuant to the Security Agreement dated as of January 30, 2002, as amended.

 

E.                                      The parties have now agreed that Polar willpay to HRO the sum of $108,600 in one lump sum and issue a warrant to purchasecommon stock of Polar to resolve this outstanding indebtedness and in fullsettlement of any and all claims they may have against the other, and theparties will provide mutual releases on the terms specified below.

 

**Agreement**

 

1.                                       Payment to HRO.  Nolater than the Payment Date (as defined below), Polar will (a) pay to HRO$108,600 in cash, and (b) issue to HRO a warrant (the “Warrant”) topurchase at the price of $0.10 per share (the “Warrant Price”) a total of 2,710,000shares of Polar common stock (which is $271,000 divided by the Warrant Price).  The Warrant shall be exerciseable at any timefrom the date of its issuance through the five year anniversary of such issuancedate, shall provide that the exercise price may be payable in cash or by acashless exercise (surrender of warrants with an aggregate value (which shallbe calculated by multiplying (x) the number of warrants surrendered forcancellation by (y) the per share market price of the Polar common stock on thedate of surrender less the Warrant Price) equal to the aggregate Warrant Pricefor

 

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the number of shares beingacquired) and other customary terms that are acceptable to HRO and Polar.  The “Payment Date” shall be the date thatPolar has earned net profits and raised capital cumulative from the date hereofequal to (x) an amount sufficient to retire Polar’s current obligation toAffiliated Investments, L.L.C., in full, plus (y) $300,000.

 

2.                                       Release of Lien.  Uponreceipt of the cash payment and Warrant pursuant to paragraph 1, HRO willrelease the Lien and will deliver to Polar a “UCC-3 Termination of FinancingStatement.”

 

3.                                       Registration Rights. Polar shall use its best efforts to include in any registrationstatement that it may subsequently file the shares of Polar common stockissuable upon exercise of the Warrant.

 

4.                                       Mutual Release.  Forvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, Polar for itself and each of its officers, directors, members,agents, successors and assigns, on the one hand, and HRO, on behalf of itselfand each of its agents, successors and assigns, on the other hand, herebyrelease, acquit and forever discharge each other, and any and all of their pastand present employees, officers, directors, shareholders, members, partners,joint venturers, independent contractors, attorneys, insurers, agents, heirs,successors, assigns, and representatives of and from any and all actions,causes of action, obligations, claims, debts, demands, liabilities, costs andexpenses, including attorneys’ fees, of every kind and nature whatsoever, inlaw or in equity, based on any act or omission, whether known or unknown andwhether accrued or unaccrued, from the beginning of time to the date of thisAgreement, including without limitation, all claims arising out of, or relatedto, or in connection with the Matters, other than Polar’s obligations to HROunder the terms of this Agreement.

 

5.                                       Independent Representation, Investigation andDetermination.  HRO advises Polar that independentrepresentation by counsel is appropriate in connection with thisAgreement.  Polar and HRO represent andwarrant to each other that they have had the opportunity to obtain the adviceof independent counsel in entering into this Agreement.  Polar and HRO further represent and warrantto each other that they have each made their own independent investigation anddetermination with respect to the settlement of Polar’s obligations and thatthey are not relying on any statement or information provided by any otherparty in entering into this Agreement.

 

6.                                       No Admission of Liability.  Byagreeing to the terms of this Agreement, neither HRO nor Polar admits toliability on any of the claims or allegations raised or that could be raised inconnection with this dispute.  Theparties are entering into this Agreement as a compromise solely for the purposeof resolving Polar’s outstanding obligations to HRO.

 

7.                                       Termination of Representation.  Theparties confirm and agree that HRO’s representation of Polar in connection withthe Matters and any other matter has been concluded as of March 2004, andthat HRO’s representation of Polar has been therefore ended.  Because the lawyer-client relationshipbetween HRO and Polar has ended, HRO has had and will have no furtherobligation to advise Polar in connection with the Matters or any other matteror as to future legal developments that may have a bearing on the Matters.  Nothing in this Agreement

 

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shall constitute a waiver byPolar of its attorney-client privilege with HRO with respect to the period thatHRO represented Polar.

 

8.                                       Miscellaneous.  ThisAgreement shall be interpreted, constructed and enforced in accordance with,and governed by, the laws of the State of Colorado.  This Agreement may be executed in multipleparts and/or by facsimiles transmitted electronically or by fax machine and,when consolidated, shall constitute one final agreement.

 

IN WITNESS WHEREOF theundersigned have signed this Agreement to be effective as of the date set forthabove.

 

 
| ** ** | **POLAR MOLECULAR HOLDING CORPORATION** |
|------------|-----------------------------------------|
| ** ** | ** **                              |
|       |                                    |   |
|       | By:                                     | /s/ Mark Nelson |   |
|       |                                    | Mark Nelson, President |
|       |                                    |   |
|       |                                    |   |
| ** ** | **HOLME ROBERTS & OWEN LLP**   |
| ** ** | ** **                              |
|       |                                    |   |
|       | By:                                     | /s/ Garth Jensen |   |
|       |                                    | Garth Jensen, Partner |

 

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