RECITALS
Exhibit 10.43
EXECUTION COPY
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
November 23, 2005, by and between Protein Polymer Technologies, Inc., a Delaware
corporation ("Purchaser"), and the undersigned stockholder ("Stockholder") of
Surgica Corporation, a Delaware corporation (the "Company"). Certain capitalized
terms used in this Agreement are defined in Section 6 hereof and certain other
capitalized terms used in this Agreement that are not defined herein shall have
the meaning given to such terms in the Option Agreement (as defined below).
RECITALS
WHEREAS, Stockholder is the holder of record and the "beneficial owner"
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of certain shares of common stock and/or preferred stock of the
Company;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Purchaser and the Company are entering into an Asset Purchase Option
Agreement (the "Option Agreement") which provides, upon the terms and subject to
the conditions set forth therein, the Purchaser the right to purchase from the
Company substantially all of the assets of the Company (the "Acquisition") then
existing or thereafter acquired through the date of the exercise of the Option
pursuant to the Purchase Agreement attached thereto, between the Purchaser, its
wholly-owned subsidiary and the Company.
WHEREAS, as a condition and inducement to Purchaser's willingness to
enter into the Option Agreement, Stockholder has agreed to execute and deliver
this Agreement.
AGREEMENT
NOW, THEREFORE, the parties to this Agreement, intending to be legally
bound, agree as follows:
1. Agreement to Vote Shares. Prior to the Termination Date (as defined
in Section 6), at every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, Stockholder shall vote the
Subject Securities: (a) in favor of the adoption of the Option Agreement and the
grant of the Option contemplated thereby (b) in favor of adoption of the
Purchase Agreement and approval of the Acquisition, (c) against any proposal for
any acquisition transaction, other than the Acquisition, between the Company and
any Person other than Purchaser and/or a wholly-owned subsidiary of Purchaser,
and (d) against any other action or agreement that would result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Option Agreement or Purchase Agreement or which would
result in any of the conditions to the consummation of the effectiveness of the
Option under the Option Agreement or the Acquisition under the Purchase
Agreement not being fulfilled.
2. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Stockholder agrees to deliver to Purchaser a proxy in the form
attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the
fullest extent permitted by law, with respect to the shares referred to therein.
3. Agreement to Retain Shares.
(a) Restriction on Transfer. Except as otherwise provided in
Schedule A, attached hereto, and Section 3(c), during the period from the date
of this Agreement through the Termination Date, Stockholder shall not, directly
or indirectly, cause or permit any Transfer of any of the Subject Securities to
be effected.
(b) Restriction on Transfer of Voting Rights. During the period from
the date of this Agreement through the Termination Date, Stockholder shall
ensure that: (a) none of the Subject Securities is deposited into a voting
trust; and (b) no proxy (other than the Proxy granted herein) is granted, and no
voting agreement or similar agreement is entered into, with respect to any of
the Subject Securities.
(c) Permitted Transfers. Section 3(a) shall not prohibit a Transfer
of Company Common Stock by Stockholder (i) upon the death of Stockholder, or
(ii) if Stockholder is a partnership or limited liability company, to one or
more partners or members of Stockholder or to an affiliated corporation under
common control with Stockholder; provided, however, that a Transfer referred to
in this sentence shall be permitted only if, as a precondition to such Transfer,
the transferee agrees in a writing, reasonably satisfactory in form and
substance to Purchaser, to be bound by the terms of this Agreement and delivers
a Proxy to Purchaser in substantially the form of Exhibit A.
4. Representations, Warranties and Covenants of Stockholder. Stockholder hereby
represents and warrants to Purchaser as follows:
(a) Due Authorization, Etc. All consents, approvals, authorizations
and orders necessary for the execution and delivery by Stockholder of this
Agreement and the Proxy have been obtained, and Stockholder has full right,
power and authority to enter into this Agreement and the Proxy. This Agreement
and the Proxy have been duly executed and delivered by Stockholder and
constitute valid and binding agreements of Stockholder enforceable in accordance
with their terms, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect relating
to creditors' rights generally and subject to general principles of equity.
(b) No Conflict. The execution and delivery of this Agreement and
the Proxy by Stockholder do not, and the performance of this Agreement and the
Proxy by Stockholder will not conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to the Subject Securities held
by the Stockholder.
(c) Title to Securities. As of the date of this Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock and Company Preferred
Stock set forth under the heading "Shares Held of Record" on the signature page
hereof; (b) Stockholder holds (free and clear of
any encumbrances or restrictions) the options, warrants and other rights to
acquire shares of Company Common Stock set forth under the heading "Options and
Other Rights" on the signature page hereof; (c) Stockholder Owns the additional
securities of the Company set forth under the heading "Additional Securities
Beneficially Owned" on the signature page hereof; and (d) Stockholder does not
directly or indirectly Own any shares of capital stock or other securities of
the Company, or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any shares of capital stock or other securities of the
Company, other than the shares and options, warrants and other rights set forth
on the signature page hereof.
5. Additional Covenants of Stockholder.
(a) Further Assurances. From time to time and without additional
consideration, Stockholder shall (at Stockholder's sole expense) execute and
deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at Stockholder's sole expense) take such further actions, as Purchaser may
request for the purpose of carrying out and furthering the intent of this
Agreement.
6. Certain Definitions. For purposes of this Agreement,
(a) "Company Common Stock" shall mean the common stock, par value
$0.001 per share, of the Company.
(b) "Company Preferred Stock" shall mean the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, each having a par
value of $0.001 per share, and any other series of preferred stock of the
Company.
(c) Stockholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Stockholder is the "beneficial owner" of such
security within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended.
(d) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) Governmental
Body.
(e) "Subject Securities" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock, Company Preferred Stock
and all options, warrants and other rights to acquire shares of Company Common
Stock or Company Preferred Stock) Owned by Stockholder as of the date of this
Agreement; and (ii) all additional securities of the Company (including all
additional shares of Company Common Stock, Company Preferred Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock or Company Preferred Stock) of which Stockholder acquires Ownership
during the period from the date of this Agreement through the Termination Date.
(f) "Termination Date" means the earlier to occur of the date (i)
the Acquisition shall become effective in accordance with the terms and
provisions of the Purchase Agreement, or (ii) the Option Agreement terminates in
accordance with its terms without the exercise of the Option.
(g) A Person shall be deemed to have a effected a "Transfer" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security to any Person other than Purchaser or a wholly-owned
subsidiary of Purchaser; (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein to any Person other than Purchaser or a wholly-owned subsidiary
of Purchaser; or (iii) reduces such Person's beneficial ownership of, interest
in or risk relating to such security.
7. Miscellaneous.
(a) Assignment; Binding Effect. Except as provided herein, neither
this Agreement nor any of the interests or obligations hereunder may be assigned
or delegated by Stockholder, and any attempted or purported assignment or
delegation of any of such interests or obligations shall be void. Subject to the
preceding sentence, this Agreement shall be binding upon Stockholder and his
heirs, estate, executors and personal representatives and his successors and
assigns, and shall inure to the benefit of Purchaser and its successors and
assigns. Without limiting any of the restrictions set forth in Section 3(a) or
elsewhere in this Agreement, this Agreement shall be binding upon any Person to
whom any Subject Securities are transferred. Nothing in this Agreement is
intended to confer on any Person (other than Purchaser and its successors and
assigns) any rights or remedies of any nature.
(b) Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy were not performed in accordance with its specific terms or were otherwise
breached and in the event of any breach or threatened breach by Stockholder of
any covenant or obligation contained in this Agreement or in the Proxy,
Purchaser shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek (a) a decree or order of
specific performance to enforce the observance and performance of such covenant
or obligation, and (b) an injunction restraining such breach or threatened
breach.
(c) Waiver. No failure on the part of Purchaser to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of Purchaser in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Purchaser shall not be deemed to have waived any
claim available to Purchaser arising out of this Agreement, or any power, right,
privilege or remedy of Purchaser under this Agreement, unless the waiver of such
claim, power, right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of Purchaser; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
(d) Governing Law; Venue. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of California, without giving effect to principles of conflicts or
choice of law. Any legal action or other legal proceeding relating to
this Agreement or the Proxy or the enforcement of any provision of this
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of California.
(e) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an original
and all of which together shall constitute one instrument.
(f) Entire Agreement. This Agreement and the Proxy constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
(g) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by written
notice.
EXECUTION COPY
The parties have caused this Agreement to be duly executed on the date
first above written.
PURCHASER:
PROTEIN POLYMER TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxxxx, III
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Title: Chief Executive Officer
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Address for notices:
Protein Polymer Technologies, Inc.
00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile: 858.558.6477
Email: xxx@xxxx.xxx; xxx@xxxx.xxx
Attention: Xxxxxxx X. Xxxxxxxxx, Chief Executive
Officer and J. Xxxxxx Xxxxxxxx, Chairman
STOCKHOLDER:
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President and Chief Executive Officer
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Address for notices:
Surgica Corporation
5090 Xxxxxx X. Xxxxxxx Xxxxxxx #0
Xx Xxxxxx Xxxxx, Xx 00000
Facsimile: 916.933.5260
Attention: Xxxxx X. Xxxxxx, President and
Chief Executive Officer
Company Common Stock Company Preferred Additional Securities
Held of Record Stock Held of Record Options and Other Rights Beneficially Owned
-------------- -------------------- ------------------------ --------------------
5,732,000 0 0 0
[Signature Page to Voting Agreement]
EXHIBIT A
IRREVOCABLE PROXY
Ex.A - 3
SCHEDULE A
PERMITTED TRANSFERS
As of the date of this Agreement, Stockholder has represented that it holds Subject Securities in the amount of 5,732,000 which represents approximately 38.38% of the outstanding shares of the Company on a fully-diluted basis. Purchaser hereby agrees that Stockholder may, during the period from the date of this Agreement through the Termination Date, cause or permit a transfer by gift of not more than 350,000 shares of the Subject Securities (provided that such transfer is in compliance with all applicable securities laws) to be effected and only to the extent that such transfer does not reduce Stockholder’s holdings of Subject Securities to an amount whereby Stockholder holds less than 36% of the outstanding shares of the Company on a fully-diluted basis as of the date hereof. The permitted transfer by gift and release of up to 350,000 shares of the Subject Securities shall in no way affect the rights and obligations of either Purchaser or Stockholder pursuant to this Agreement.
Sc.A - 1
