EXHIBIT 10.2
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT
(this “ Agreement
”) is made and entered into as of May 12, 2004, by and among
RITA Medical Systems, Inc., a Delaware corporation (“
Parent ”), Horizon Medical Products, Inc., a Georgia
corporation (the “ Company ”), and the
undersigned stockholder of Parent (“ Holder ”).
Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to them in the Merger Agreement (as defined
below).
BACKGROUND
A. Parent, the Company and Hornet
Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (“ Merger Sub ”), have
entered into an Agreement and Plan of Merger, dated as of the date
hereof (the “ Merger Agreement ”), which
provides for the merger of the Merger Sub with and into the Company
(the “ Merger ”), pursuant to which the Company
shall become a wholly-owned subsidiary of Parent.
B. As a condition and inducement to
the willingness of Parent, Merger Sub and the Company to enter into
the Merger Agreement, Holder has agreed to enter into this
Agreement.
NOW, THEREFORE,
intending to be legally bound, the
parties hereto agree as follows:
1. Acknowledgments by Holder
. Holder has carefully read this Agreement and the Merger Agreement
and has had the opportunity to discuss the requirements of this
Agreement with Holder’s professional advisors, who Holder
believes are qualified to advise Holder with regard to such
matters.
2. Affiliate Status; Lock-up
.
(a) Affiliate Status . Holder
has been advised that Holder may be deemed to be an
“affiliate” (as that term is defined in Rule 144 of the
Rules and Regulations (the “ Rules and Regulations
”) of the Securities and Exchange Commission) of Parent after
the consummation of the Merger.
(b) Lock-up . Holder agrees,
during the 12-month period beginning on the date of the
consummation of the Merger, not to offer, contract to sell or
otherwise sell, dispose of, loan, pledge, grant any rights with
respect to, make any short sale of, grant any option for the
purchase of, or enter into any hedging or similar transaction with
the same economic effect as a sale (each, a
“Disposition”) of any shares of Parent Common Stock,
except to the extent that: (A)(i) such Disposition is made pursuant
to an effective registration statement under the Securities Act of
1933, as amended (the “ 1933 Act ”) or an
appropriate exemption from registration or (ii) Holder delivers to
Parent a written opinion of counsel, reasonably acceptable to
Parent in form and substance, that such Disposition is otherwise
exempt from registration under the 1933 Act; and (B) the number of
shares of Parent Common Stock subject to Dispositions made by
Holder during the three month-period ending on the date of such
Disposition (and including the shares of Parent Common Stock
subject to such Disposition) does not exceed 200% of the number of
shares of Parent Common Stock Holder would be entitled to sell in
accordance with the volume limitations set forth Rule 144(e) of the
Rules and Regulations of the Securities and Exchange Commission if
all shares of Parent Common Stock subject to Dispositions made by
Holder during such three-month period were “restricted
securities” (as defined in Rule 144(a)(3) of the Rules and
Regulations). Notwithstanding anything to the contrary herein, this
Agreement shall not prohibit a transfer of any shares of Parent
Common Stock by Holder, if Holder is a partnership or limited
liability company, to one or more partners or members of Holder or
to an affiliated Person under common control with Holder;
provided , however , that unless such transfer is
effected in accordance with Section 2(b)(B) above, such transfer
shall be permitted only if, as a precondition to such transfer, the
transferee agrees in writing to be bound by all of the terms of
this Section 2(b).
(c) Holder understands that there
will be placed on the certificates for the Parent Common Stock
issued to Holder, or any substitutions therefor, a legend stating
in substance:
“THE SHARES REPRESENTED BY
THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH THE
TERMS OF AN AGREEMENT DATED MAY 12, 2004 BETWEEN THE REGISTERED
HOLDER HEREOF, RITA MEDICAL SYSTEMS, INC. AND HORIZON MEDICAL
PRODUCTS, INC., A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICES OF RITA MEDICAL SYSTEMS, INC.”
It is understood and agreed that the
legend contemplated in this Section 2(c) shall be removed by
delivery of a substitute certificate without such legend if Holder
shall have delivered to Parent a copy of a letter from the staff of
the Securities and Exchange Commission, or a written opinion of
counsel reasonably acceptable to Parent, to the effect that such
legen
