Exhibit 10.4
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.
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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
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any encumbrances or restrictions) the
options, warrants and other rights to
acquire
