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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 shareholder
of the Company ("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. Holder
has been advised that Holder may be deemed to be an "affiliate"
of Parent after the consummation of the
Merger as the term "affiliate" is
defined in Rule 144 of the Rules and
Regulations (the "Rules and Regulations")
of the Securities and Exchange Commission
(the "Commission"), although nothing
contained herein shall be construed as an
admission by Holder that Holder will
in fact be an "affiliate" of Parent after
the consummation of the Merger.
C. 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 (i) the
issuance
of Parent Common Stock to Holder Company
Shareholders in connection with the
Merger will be registered on a registration
statement on Form S-4 promulgated
under the Securities Act of 1933, as
amended (the "1933 Act") and that the
resale by Holder of shares of Parent Common
Stock issued to the undersigned in
the Merger will be registered under the
1933 Act on a post-effective amendment
to such registration statement on Form S-3
(the "Resale Registration
Statement"), (ii) the resale of such shares
by Holder may be subject to
restrictions set forth in Rule 144 and Rule
145 of the Rules and Regulations,
and (iii) Holder may be deemed to be an
affiliate of Parent after the
consummation of the Merger.
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(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 in
conformity with the requirements of Rule
145(d) promulgated under the 1933 Act, to
the extent such Rule may be applicable
to such Disposition, (ii) such Disposition
is made pursuant to an effective
registration statement under the 1933 Act
or an appropriate exemption from
registration or (iii) 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
any 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 in Rule 144(e)(1) of the
Rules and Regulations if all shares of
Parent Common Stock subject to
Dispositions made by Holder during such
three-month period were subject to such
volume limitations (regardless of whether
the resale thereof has been registered
under the 1933 Act). 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 ARE HELD BY AN "AFFILIATE"
OF
RITA
MEDICAL SYSTEMS, INC. AND MAY ONLY BE TRANSFERRED IN ACCORDANCE
WITH
RULE 144
UNDER THE SECURITIES ACT OF 1933, AND WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
AC
